RR v The Queen

[2013] VSCA 147

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0313

RR

V

THE QUEEN

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JUDGES

ASHLEY, REDLICH and PRIEST JJA

WHERE HELD

MELBOURNE

DATE OF HEARING

6 and 8 May 2013

DATE OF JUDGMENT

28 June 2013

MEDIUM NEUTRAL CITATION

[2013] VSCA 147

JUDGMENT APPEALED FROM

DPP v RR (Unreported, County Court of Victoria,

Judge Coish, dated 29 November 2011)

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CRIMINAL LAW – Conviction – Stalking – Whether verdicts of guilty on two charges unreasonable or could not be supported on the evidence – Whether evidence enabled jury to find that appellant intended to cause complainant ‘mental harm’ – Whether ‘mental harm’ confined to medically diagnosed mental condition – Whether, in respect of one charge, posting many identical letters to different addressees on one occasion enabled jury to conclude that appellant had engaged in a ‘course of conduct’ – Whether judge impermissibly enlarged Crown case – Whether, if so, serious miscarriage of justice established – Convictions affirmed.

CRIMINAL LAW – Conviction – Making false document – Whether verdict of guilty unreasonable or could not be supported on the evidence – Whether open to jury to conclude that appellant intended recipients of false document to treat it as genuine and by reason of doing so act to complainant’s economic prejudice – Possible relevance of recipients in fact realising that document was false – Conviction affirmed.

CRIMINAL LAW – Conviction – Two charges of assault and two charges of obstruct police – Direction which left open risk that  jury would find appellant guilty of all charges only in reliance upon evidence of assaults – Convictions on charges of obstruct police quashed.

Crimes Act 1958 (Vic), ss 21A, 31(1)(b)(i), 83A.

CRIMINAL LAW – Sentence – Delay – Manifest excess – No substance to grounds – Appeal dismissed.

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Appearances	Counsel	Solicitors
For the Appellant	Ms C Boston	Valos Black & Associates
For the Crown	Mr P Kidd SC with Mr G Barr	Mr Craig Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. RR appeals by leave against his conviction in the County Court, on 3 October 2011, of eight offences, and against sentence imposed on 29 November 2011.  The offences of which the appellant was convicted, and the sentences imposed, were as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Stalking [Crimes Act 1958 (Vic) s 21A]	10 years	2 years 6 months	12 months
2	Make false document [Crimes Act 1958 (Vic) s 83A(1)]	10 years	2 years 6 months	N/A
3	Stalking	10 years	4 years 6 months	Base
4	Possess child pornography [Crimes Act 1958 (Vic) s 70(1)]	5 years	6 months	2 months
5	Assault police [Crimes Act 1958 (Vic) s 31(1)(b)(i)]	5 years	4 months	2 months
6	Obstruct police [Crimes Act 1958 (Vic) s 31(1)(b)(i)]	5 years	4 months	N/A
7	Assault police	5 years	4 months	2 months
8	Obstruct police	5 years	4 months	NA
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		65 days
6AAA Statement:		NA
Other orders: Serious sexual offender declaration on Charge 4. Life reporting under Sex Offenders Registration Act 2004 (Vic).

Grounds of appeal – conviction

1. On 8 November 2012, Priest JA granted the appellant leave to appeal against conviction on the following grounds:

1.The verdicts on charges 1, 2 and 3 are unreasonable or cannot be supported having regard to the evidence. 

5.A miscarriage of justice has been occasioned by reason of the jury being permitted to return verdicts of guilty on the two ‘obstruct police’ charges, in circumstances where those charges arose out of substantially the same set of facts as the ‘assault’ police charges, in relation to which the jury had already delivered verdicts of guilty.

1. The appellant seeks leave to argue an additional ground, namely:

6.The trial judge erred in directing the jury that the mens rea for the stalking charges (Charges 1 and 3) could be established by proof of:

(i)an intention on the part of the appellant to cause the complainant physical harm or to arouse apprehension or fear in her for her safety or that of another person;  and/or

(ii)‘deemed’ intention as set out in s 21A(3) of the Crimes Act 1958.

In that such directions enlarged the Crown case, in breach of the principle in King v The Queen.[1]

[1](1986) 161 CLR 423.

1. The substance of this proposed ground was agitated on the leave application.  Priest JA referred to it in his reasons when granting leave.  I would grant leave to the appellant to appeal on this ground, which is reasonably arguable.

Grounds of appeal - sentence

1. On 8 November 2012, Priest JA granted the appellant leave to appeal against sentence on the following grounds:

1.The learned sentencing judge erred in failing to take into account the mitigating effect of the delay since the offending, and in particular:

(i)the strain on the appellant in having the proceedings hanging over his head for a considerable period;  and

(ii)considerations of fairness to the appellant in his present situation playing a dominant role in sentencing, particularly in circumstances where the appellant was mentally unwell.

2.The individual sentences, extent of cumulation and non-parole period are manifestly excessive.

The conviction appeal

The statutory framework

1. It is desirable immediately to set out the text of those parts of the offences of stalking, and of making a false statement, which were relevant to arguments raised in this Court.

21A     Stalking  

(1)       A person must not stalk another person.

(2)A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following –

….

(b)contacting the victim or any other person by post, telephone, fax, text  message, e-mail or other electronic communication or by any other means whatsoever;

with the intention of causing physical or mental harm to the victim …

(3)For the purposes of this section an offender also has the intention to cause physical or mental harm …if

(a)the offender knows that engaging in a course of conduct of that kind   would be likely to cause such harm…; or

(b)the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm…and it actually did have that result.

83A     Falsification of documents

(1)A person must not make a false document with the intention that he or she, or another person, shall use it to induce another person to accept it as genuine, and by reason of so accepting it do or not do some act to that person’s, or to another person’s prejudice.

The appellant and the complainant

1. The appellant and the complainant, (HG), were married in 1993.  They had two children.  They separated in January 2006.  HG obtained an intervention order against the appellant in August 2006.  The order was consented to without admissions by the appellant.  The appellant was a police officer during the period of the marriage and for some time thereafter.  He rose to the rank of Acting Sergeant, before being suspended without pay in 2007.  He resigned from the police force in 2008.  Throughout the period of the alleged offending, the complainant was employed as a health and physical education teacher, and as head of girls sport, by a co-educational private school, which was a member of an association of private schools.

Evidence at trial

Charge 1 – stalking

1. As I have said, the complainant obtained an intervention order, by consent, on 8 August 2006.  That was some months after she and the appellant had separated.  She gave evidence that in the intervening period the appellant had sent her a number of texts and emails, some of which had referred to photographs which he had taken of her consensually during their marriage.  The photographs, she well knew, showed her naked in sexually explicit poses.  

1. On 16 and 17 August 2006, this being only a matter of days after the making of the intervention order, the complainant received a number of text messages on her mobile phone.  They were sent from a mobile phone the subscriber of which was identified by police as Alicia Street of Lance Close, Aspendale, date of birth 5 April 1967.  The complainant was then living at premises in Alicia Street, her family home was in Lance Close, and her date of birth was 5 April 1967.  Some of the messages impliedly intimated that the sender would disseminate the photographs to which I have referred.  

1. On 3 January 2007, police interviewed the appellant about the texts.  He denied that he had sent them.

1. Six days later – that is, on 9 January – the appellant posted a letter which was addressed to the complainant’s mother and stepfather.  According to the Crown case, the intended recipient of the letter, in reality, was the complainant.  She was shown the letter.  In it, the appellant denied having sent text messages to her.  He stated that he had never made threats against her.  He said that she could collect ‘the stuff you have repeatedly demanded’, but not ‘family photographs’.  The complainant took this last reference to relate to the sexually explicit photos. 9 January was the complainant’s and appellant’s wedding anniversary.

1. By letter received some days later, again addressed to the complainant’s mother and stepfather, the appellant again raised the question of the disposition of property.  He said much about the couple’s pending divorce – which was apparently a very considerable strain for him.  The Crown alleged that, in reality, the complainant was the intended recipient of the letter.  She was in fact shown it.  In her evidence, she denied the truth of some of the allegations made by the appellant in the letter.

1. On 2 April 2007, a nude image of the complainant in an explicit sexual pose, in the form of a photograph, was sent in a letter addressed to the headmaster of the school where she worked.  It was seen by the acting headmaster and his personal assistant.  At that stage, neither of them examined it closely.  They did not identify the complainant as its subject.  The acting headmaster put it down to being some kind of prank, and destroyed it. 

1. Pausing, the personal assistant, Ms Lawlor, gave evidence that this image, which she described as being of a woman lying naked on a bed with a dildo, was the largest image depicted in a fake copy of the school newsletter which was distributed in November 2009, and which is of central importance to charges 2 and 3.  Ms Lawlor’s description of the image was accurate as far as it went.  But it was incomplete.

1. I return to the narrative.  On the following day, a second letter was received at the school.  It contained another nude image of the complainant in a sexually explicit pose.  She was recognised as its subject.  She was called in, and informed about the matter.  She described herself as being ‘shattered’, ‘devastated that [her] boss was aware of this’, ‘that it would affect [her] job’, ‘devastated’.

1. The acting headmaster described her as having ‘found the matter terribly distressing’.  The complainant was ‘obviously incredibly embarrassed that her employer would receive such information and she was visibly upset’.  Other witnesses gave evidence to similar effect.

1. The appellant later denied sending the images to the school. 

1. At trial, he gave evidence that, long before April 2007, he had given the complainant a CD which contained the only copy of the sexually explicit images of the complainant in his possession.  The complainant denied ever receiving such a CD.  She said that she had received a blank disc, inferentially from the appellant.

1. It is also convenient to note that when police searched the appellant’s home on 18 May 2007 they took possession of a computer which he had bought in December 2006.  On it were a number of images of the complainant in sexually explicit poses.  They included the second image which had been sent to the school in April that year.  A number of the images had been overwritten with derogatory comments about the complainant.  Also found on the computer were images of the school crest.

1. The appellant’s evidence, relevantly, was that there had been a break-in at his home on 16 May 2007.  The images, he said, must have been put onto the computer by the intruder.

1. Also located at the search on 18 May 2007 were three sexually explicit photographs of the complainant.  The appellant swore that he had received them from an anonymous source, by mail, on about 29 March 2007.  He produced an envelope.  Those images were also found on the computer. 

1. The Crown case on Charge 1 was, in short, that the appellant stalked the complainant by sending her the text messages, by contacting her by the two letters – she being the real intended recipient – and by sending the offensive images to her place of employment.  He had done this with the intention of causing her mental harm; and he had succeeded in that objective.

Charges 2 and 3

1. The complainant took out a further intervention order on 29 September 2009.  It was served on the appellant on 5 October 2009.

1. On 23 and 24 November 2009, eight schools associated with the school where the complainant was employed[2] received by mail what purported to be a newsletter produced by that school. It had a banner which so described it.  The school produced a weekly newsletter generally in the form of the document.  The genuine newsletter was, at that time, being made available both on the school’s website, and in hard copy.  The particular document contained three sexually explicit images of the complainant.  They were identical to images found on the computer which had been seized from the appellant in May 2007.  The text of the document warned the reader that the complainant had posted sexually explicit photographs of herself on the internet, that she taught sex education at the school ‘not because she is unskilled in that area’, and that she had been sexually involved with at least three current staff members.  It concluded that Victoria Police had been ‘kind enough to provide colour samples from the internet web-site.’  The document was purportedly signed by the headmaster. 

   [2]Most were members of the same schools’ association.  The others had a sports’ connection with the school where the complainant worked.

1. Representatives of seven of the eight schools to which this false document was sent communicated with the school where the complainant worked.

1. Employees of the various schools gave evidence.  All of them agreed in cross-examination that the ‘newsletter’ was recognised as a fake.  In all but one instance, the recognition was immediate.

1. When the headmaster learned what had happened, he spoke with the complainant.  He told her that copies of the document had been distributed, what it depicted, that he was collecting the copies which had gone out, and that he had contacted the police.  On his account, ‘once again she was incredibly embarrassed and visibly upset…  she was distressed… crying.’ 

1. The complainant gave evidence that she was ‘devastated’.  All she could think about was what was going to happen to her job, to her children – who went to the school - how was she going to support them if she lost her job.  Taken to the text, she said that it was untrue.  She also said that she had not been in possession of photos of that kind at the time.

1. The appellant gave evidence that he had not made or sent the documents to the schools.  It will be remembered that he had given evidence of disposing of his only copies of the explicit images long before this.

1. The appellant further gave evidence that he had been camping at Cobram at the time when the letters were posted.  He conceded in cross-examination that there had been enough time for him to make a round trip which would have allowed him to post the letters in Melbourne.  He denied that he had given the letters to someone else to post.

1. There was evidence that between February and May 2009 the appellant had received copies of the newsletter.  He gave evidence that this was because his children attended the school.

1. On 3 March 2010, police intercepted a motor vehicle being driven by the appellant.  They seized a computer which the appellant had purchased in June 2009.  On it, inter alia, were electronic copies of the Newsletter.  They contained the signature of the principal.  There were also images of child pornography, which gave rise to Charge 4.  

1. The appellant does not challenge his conviction on that charge.  But I will briefly mention the evidence which he gave about the matter, because it represented a continuation of his grossly improbable general thesis – evidently rejected by the jury – that the apparently incriminating evidence found on his computers was not his doing.  The gist of his evidence was that the child pornography images had been put onto the computer by someone else – inferentially, the police – after it had been seized.  He produced an account with his service provider which he relied upon to show that he had not downloaded material in the period when the images had been downloaded. 

1. Respecting Charge 2, the Crown case, as opened to the jury, was that the appellant made the fake newsletter intending that it be used by him to induce the recipients to accept it as genuine and, having so accepted it, to contact the school where the complainant worked, to her detriment.

1. Respecting Charge 3, the Crown case was that the stalking was constituted by the appellant sending the false document to the various schools, intending that it come to the notice of the complainant and cause her mental harm.

Charges 5, 6, 7 and 8

1. It is not in doubt that, when the appellant was intercepted by police whilst driving his car on 3 March 2010, a scuffle ensued before the appellant was arrested, placed in a divisional van and taken to a police station.  The Crown case was that the appellant had assaulted two police officers; and that he had obstructed them by his generally aggressive and abusive conduct.

1. The appellant gave evidence that he had been assaulted, and that he had acted in self-defence.  He asserted that an audio–recording device which had been activated by him at the time of the confrontation had been ‘edited’ by the arresting officers. 

The issues at trial

1. It is trite that the appellant’s not guilty pleas put the Crown to proof of all elements of each offence.  But in light of the way that appellant’s counsel argued the matter in this Court, it is relevant to notice the way in which the critical issues were identified by counsel at trial.  What happened at trial cannot simply be ignored, at least where, as here, no contention is raised that trial counsel was incompetent. It often enough happens that such an analysis casts doubt upon what are said on appeal to be fatal flaws in a Crown case.  

1. The Crown’s overall contention was that, factually, the evidence called by it was overwhelmingly probable.  The appellant, ‘unhinged’ by the breakdown of his marriage, had been the author of all of the conduct relied upon with respect to Charges 1–3.  In a ‘half smart’ way, he had attempted to outwit the investigators.  But his attempts had been a failure, and no ‘computer ninja’ had been at work with any of his computers in a malign way.  As for Charges 5–8, the evidence of the police officers was again overwhelmingly probable.  The appellant’s reliance on self-defence should be rejected.

1. In final address, the prosecutor characterised the issue for determination respecting Charges 1–3 as ‘whodunit?’ and the issue respecting Charges 5–8 as ‘did it happen?’

1. Counsel for the appellant, at the end of his final address, specifically agreed with that identification of issues, except that, using more conventional grammar, he identified the Charge 1–3 issue as being ‘who did it?’; with the gloss, quite properly put, that the Crown carried the onus of proof.

1. There was, in those circumstances, scant reference by either counsel to proof of the element of intention in the offence of stalking.  The prosecutor submitted, in the context of Charge 1, that it was the Crown case that the appellant intended to cause the complainant mental harm, and that there could be little doubt that he did cause her mental harm.

1. Respecting Charge 1, counsel for the appellant made a limited submission concerning intention.  It was that the jury could not be satisfied to the criminal standard that the two letters sent in January 2007 evinced an intention to cause mental or physical harm, or of arousing apprehension or fear in the complainant for her own safety.  The submission was presumably confined in that way because the appellant admitted sending the letters, whereas he denied sending the texts or the letters to the school in April 2007.

1. Even if the January letters did bespeak an innocuous intention on the sender’s part, counsel’s submission only addressed a fraction of the conduct relied upon by the Crown in connection with Charge 1.  Concerning the intention to be discerned from the rest of the evidence, appellant’s counsel was silent.  Neither did he submit that mental harm had not in fact been caused to the complainant.

1. So far as Charge 3 is concerned, the prosecutor submitted that, ‘as night follows day’, the appellant’s intention in sending the letters was that the recipients would get back to the school where the complainant was employed, and

the roof’s going to fall in for [the complainant].  She’s going to know that the schools she associates with because she is the sports mistress that does the sports coordination … have been in contact with her headmaster … she says to you, … her thought was ‘Oh, not again’ … what was going to happen?  What was going to happen to her job?  {Her} kids? It’s their school.  How was [she] going to support them? … the person who sent the document intended [the complainant] to experience that mental anguish, that mental harm.’

1. Appellant’s counsel made no direct submission that relevant intention on the part of the sender had not been proved.  He simply argued that

the real intention of [the sender] was to cause trouble for [the appellant] knowing that … once the images were received by the various schools that the spotlight would very quickly focus on [him].

1. Nor did counsel submit that mental harm had not in fact been caused to the complainant.  Indeed, I take him to have accepted that the complainant ‘no doubt… experience[d]’ all the ‘negative emotional responses’ that the prosecutor had submitted it was the appellant’s intention of inflicting upon her. 

1. Respecting the requirement that there be a ‘course of conduct’, the prosecutor submitted that this was ‘the posting of the nine letters that go to the nine different schools, or the causing of them to be posted.’  He also referred to the responses of the schools to which the letters had been sent and, no doubt referring to the complainant, said ‘so you’re getting belted, and belted, and belted – a course of conduct – and every one hurt.’

1. Counsel for the appellant did not address ‘course of conduct’ at all.  He concluded his submissions with respect to Charge 3 by submitting that the issue was

… whether the prosecution is able to prove beyond reasonable doubt that [the appellant] had some involvement in the sending of those letters…

1. I turn to what was identified as being in issue with respect to Charge 2.  The principal debate was whether the Crown had proved that the appellant was the maker of the document.  The prosecutor marshalled the evidence which irresistibly pointed to the maker being the appellant.  Appellant’s counsel submitted that the jury might have a suspicion, even a strong suspicion, that his client was the author. But that was not proof beyond reasonable doubt.

1. Notwithstanding the principal area of debate, both counsel addressed the intention required by s 83A(1) of the Crimes Act1958.  This illustrates the way in which an alternative argument might have been raised as to intention with respect to Charges 1 and 3.

1. The prosecutor recited the intention required by the subsection.  He submitted that

You gain an insight into the maker’s mind and what they intended by looking at the document and it’s not the test of how an informed person receiving the document viewed it, but what was in the mind of the man who made it, and you will get an insight into that by looking at the documents. 

1. The prosecutor also referred at some length to the substantial task that had been undertaken to produce the fake document.  He did so by analysing evidence given by a computer expert as to the various pieces of material found in the appellant’s computer which was seized on 3 March 2010.

1. Counsel for the appellant also mentioned the intent required by s 83A(1). He submitted that ‘on one view it doesn’t really seem to fit the criteria for the making of a false document’. In that context, he submitted that whilst the prosecutor had correctly made the point that it was the maker’s intention which was relevant, and that it did not have to be proved that another person had actually been deceived, nonetheless it was a relevant enquiry how the document had been received. Here, witnesses had given evidence that they quickly realised it was a fake, and that there was no real risk that they would accept it as genuine. For that reason, the jury might ‘well be disinclined to [conclude] that the maker of the document had the necessary intention.’

1. I turn to Charges 5–8.

1. The prosecutor went through the evidence of the police officers present on 3 March 2010.  He described all of the offending conduct.  It is arguable that he ultimately identified the conduct which the Crown relied upon to prove the assaults.  Referring to police officer Tapai, he said this:

He most certainly was grabbed by the accused, he most certainly had his wrist wrenched and the photographs independent of Mr Tapai, taken by a medical practitioner, show you as much.

1. Then, referring to police officer Keleher, he submitted;

And Mr Keleher explains to you the circumstances in which he was grabbed by his arm and his arm was wrenched.

1. By negative implication, the prosecutor thus identified the conduct said to constitute the charges of obstruct police:  it was the appellant’s abusive and difficult  conduct from the outset. 

1. The prosecutor further submitted that the police had not bashed the appellant.  They ‘tried as best they could to control him when he was uncontrollable.’  Baton strikes to the back of the leg had been necessary to force the appellant to the ground.  The police had been assaulted, the appellant had resisted them in their lawful work, and they wanted to arrest him.  The appellant’s attitude had been captured in an audiotape made of the confrontation.  The appellant’s evidence to the effect that the audiotape had been altered by the police did not stand up.

1. The submissions just noted were, no doubt, a response to the appellant’s evidence that he had been assaulted by the police, and that any violence on his part was done in self–defence.

1. Counsel for the appellant submitted that there was conflicting evidence about what had happened.  The jury might be assisted by the audiotape.  The police had a video camera with them at the time, but it had not been used.  That was said to be usual police practice, but the fact remained that there was no video footage of the incident.  Other than that, police evidence had been that a search warrant was both mentioned and shown to the appellant, but he denied it.  In the end, the question was whether the Crown had proved that the appellant had assaulted the police officers, or obstructed them.

1. Counsel did not, in terms, draw attention to an aspect of the appellant’s evidence about this incident: that is, that he had acted in self–defence.

1. Later, during the judge’s charge, and in the absence of the jury, both counsel clarified the appellant’s position.  It was that he had not assaulted the police, or obstructed them.  But if he had, then it was in self–defence.

Ground 1

Mental harm?

1. The appellant’s attack on his conviction on Charges 1–3 rests on what counsel submitted were deficiencies in the Crown proofs.

1. Respecting Counts 1 and 3, appellant’s counsel argued that the Crown case was that the various acts were done by her client with the intention – that is, the actual intention – of causing the complainant mental harm.  That case fell down at two points. 

1. First, the matter which the Crown must prove was that the appellant intended to cause mental harm. What actually happened was a guide to the actor’s intention. In this case the conception of ‘mental harm’ was not satisfied by evidence of the complainant’s embarrassment, and apprehension that she might lose her job. The present inclusive definition of mental harm, inserted as s 21A(8) of the Crimes Act 1958 by Act No 20/2011, showed that something more must be understood as always having been required.  It must have been a medically-diagnosed mental condition, such as post–traumatic stress disorder, depression, or anxiety.  ‘Mental anguish’ – that being one term used by the prosecutor in his closing address – would not be enough.

1. Second, it is a related matter, it could not be excluded as a reasonable possibility that the appellant’s intention was only to cause the complainant embarrassment.

1. In my opinion, there is nothing to these submissions.  As will be evident from what I have earlier said, neither of them was advanced at trial.  They were the first, but by no means the last, manifestation of a case advanced on appeal which was remote from that argued at trial.

1. ‘Mental harm’ was not, at the relevant time, a defined term.  The later‑inserted definition, in any event inclusive, does not circumscribe the term in its previously undefined form.  It was for the jury to decide whether the offender intended to cause the complainant mental harm, giving those words the content of ordinary English usage.[3]  Even now, if it could be relevant, I do not agree that the definition requires an intention that the victim suffer a medically diagnosed, or diagnosable condition.  Remembering that it is the actor’s intention which must be proved, a requirement such as counsel propounded seems very unlikely.

   [3]See R v Hoang (2007) 16 VR 369, 390, [115] (Neave JA).

1. Because ‘mental harm’ was not a defined term, and because the term was to be given the content which the jury concluded accorded with ordinary English usage, I see no force in counsel’s criticism that the judge failed to charge the jury as to the term’s content.  I add that no exception was taken at trial that his Honour had failed to so direct.

1. Although the question whether the relevant intention was proved to have been present is not answered by the effect that the conduct had in fact, I think that such effect might possibly assist a jury in its determination of intention;  that is, so long as effect in fact was not treated as proving intention to cause that effect.

1. In the present case, the evidence of the effect of the offender’s conduct, particularly the sending of the images to the school in April 2007, and the circulation of the fake newsletter in November 2009, was that it caused more than mere  embarrassment.  Assuming in the appellant’s favour, but not deciding, that ‘mere embarrassment’ would not constitute mental harm, I see no reason why the jury should not have concluded that reactions of being ‘shattered’, visibly upset, and tearful were indicative of mental harm.  Neither do I see any reason why, even if those reactions were solely provoked by the complainant’s fear that she might lose her job, and consequential concern for the livelihood of she and her children, such reactions should be quarantined from consideration in circumstances where they were the direct by–product of the offending conduct.

1. But putting actual effect to one side, I consider that the jury were well able to exclude, as a reasonable possibility, that it was the offender’s intention only to cause the complainant embarrassment by what he did. In the language of a complaint that a verdict was unsafe or unsatisfactory – that is the substance of Ground 1, the language used being the language of s 276(1)(a) of the Criminal Procedure Act 2009 – this was definitely not a case in which the jury must have had a reasonable doubt of the appellant’s guilt on either of Charges 1 or 3 by reason of the issue now under consideration. The first image sent to the school, which was the main image depicted later in the fake newsletter, was – when removed from the marital milieu in which it had been recorded – degrading in the extreme. I consider that a submission that the reasonable possibility could not be excluded that the offender intended to cause no more than the complainant’s embarrassment, by contrast with mental harm – had it been advanced before the jury – would have been dismissed with contempt.

1. Of course, the appellant swore that he was not the offender.  So, it might be asked, why would counsel have raised such an alternative argument.  To that it might be answered that the position which the appellant averred on oath did not prevent counsel from arguing in a general way in his closing submissions that intention to cause mental harm had not been established, as could be seen from the complainant’s actual reaction.  Indeed, as I have earlier pointed out, an alternative argument as to intention was raised in connection with Charge 2.

Course of conduct

1. Respecting Count 3, the appellant’s counsel argued an additional matter.  For the offence of stalking to be committed, a ‘course of conduct’ is required.  Here, there was no evidence of a course of conduct.

1. This was another argument not advanced below.  It might have been addressed to the trial judge, on an application that the appellant must be acquitted on Charge 3;  or it might have been the subject of a submission to the jury upon an issue of fact.

1. The Crown case at trial, counsel submitted, was that the course of conduct ‘was the posting of the nine letters that go to the nine different schools or the causing of them to be posted.  In no way could posting the letters at the one time – they were not shown to have been posted at different times – constitute a course of conduct.’

1. In Berlyn v Brouskos,[4] Nettle J (as his Honour then was) dealt with the meaning of ‘course of conduct’ more expansively.  His Honour said this:

The essence of stalking under the American model, and thus I think an essential element of stalking as defined by s 21A of the Crimes Act, is a course of conduct of the kind prescribed in the California Penal Code. And for the reasons already given that means that there must be a pattern of conduct evidencing a continuity of purpose. Indeed, for those reasons, s 21A is in some respects more limited than the legislation in other Australian States, which speaks only in terms of proscribed conduct on at least two occasions, or on one, as in New South Wales, without the requirement of a course of conduct evidencing a continuity of purpose. It is readily conceivable that conduct on two separate occasions may not always constitute a pattern of conduct evidencing a continuity of purpose and it is unlikely that conduct on only one occasion could constitute a pattern of conduct evidencing a continuity of purpose, unless the conduct were protracted. In order to constitute a pattern of conduct there must be something more, and I think with respect that McDonald J was correct when his Honour said in Gunes, in effect, that the something more is that the conduct must be engaged in on more than one occasion, or it must be protracted.

That is not to suggest that proscribed conduct which is engaged in on more than one occasion or which is protracted will necessarily constitute a course of conduct evidencing a continuity of purpose.  It may not, and I do not take McDonald J to have suggested otherwise.  Something additional about the conduct or the surrounding circumstances will need to be shown before it can be said of the conduct that it amounts to a pattern of conduct evidencing a continuity of purpose.  But I think that for all intents and purposes, it will not be open to say of conduct that it amounts to a course of conduct unless it is engaged in on more than one occasion or unless it is protracted;  whatever else may need to be shown.[5]

[4](2002) 134 A Crim R 111, 117 [24]-[25].

[5]Ibid, 117 [24]-[25].

1. Thus, a legal meaning was ascribed to the term, and the judge was obliged to direct the jury as to that meaning.  It was then the jury’s function to consider whether the Crown had proved that the conduct met that meaning.

1. The judge did direct the jury as to the meaning of the term.  He said this:

To be a course of conduct, the acts must have been committed on more than one occasion or must have gone on for a prolonged period of time.  A short, isolated act cannot constitute a course of conduct.

1. No exception was taken to this direction at trial; and none was taken in this Court.

1. When summarising the prosecutor’s final address, the judge said nothing about what had been submitted as to course of conduct.  Obviously, his Honour’s summary of defence counsel’s final address said nothing about the matter, because counsel had said nothing about it.

1. Was there any evidence that the appellant had engaged in a course of conduct, giving that term its legal meaning, with respect to Charge 3?  If not, the verdict was unsafe and unsatisfactory.  Alternatively, if there was some evidence that the appellant had so engaged, must the jury nonetheless have had a reasonable doubt of his guilt on that Charge?

1. In my opinion, the answer to the first of those questions is ‘yes’, and to the second, ‘no’.  In so concluding, I put to one side an argument advanced for the Crown in this Court that the course of conduct included the addressees, acting as the appellant’s innocent agents, contacting the school where the complainant worked, this leading on to her becoming aware that the fake newsletter had been sent to many schools.  At very most, that characterisation was hinted at by the prosecutor at trial.[6]

   [6][48] above.

1. The success of the appellant’s submission depended on the only correct analysis being that posting the nine letters was conduct undertaken on a single occasion, and that it was not protracted conduct. It assumed that ‘contacting … any other person by post’ – the language of s 21A(2)(b) of the Crimes Act – was effected when the letters were posted.

1. I will assume, without deciding the matter, that this assumption was correct.  At least it coincides with the Crown case at trial.  Upon that assumption, it appears to me that the appellant’s analysis was only one way in which the jury might have approached the matter.  I see no reason why the jury was not entitled to treat each act of posting, to a different addressee, as a separate piece of conduct.  In that event, it was not bound to conclude that the Crown had failed to prove the ‘course of conduct’ element of Charge 3.  The appellant’s analysis would invite an artificial examination of the facts.  Could there be a course of conduct if the various letters (I do not say in this case) had been posted a minute, or five minutes, or 15 minutes apart?  Would there have been a course of conduct if an email annexing a scanned copy of the fake newsletter had been sent by one press of the send button to the nine recipients?  Would it have been different if there had been nine separate emails, sent successively at 10 second intervals? 

Charge 2:  proof of relevant intention

1. I turn to Charge 2. The offence created by s 83A(1) of the Crimes Act required proof that the false document was made with the intention that the recipients accept it as genuine, and by reason of so accepting it, do an act to the complainant’s prejudice.  Appellant’s counsel submitted that the newsletter sent to the various schools was obviously a fake.  That is how the recipients viewed it.  The document being an obvious fake, it was not open to the jury to exclude the possibility that the sender of the documents did not intend the recipients to accept them as genuine, and by reason of so accepting it do an act to the prejudice of the complainant. 

1. This submission, I remind myself again, was a submission that the verdict was unsafe and unsatisfactory, giving that term the meaning described in the authorities.[7]

   [7]Libke v The Queen (2007) 230 CLR 559, 596-597 [113] (Hayne J). See also SKA v The Queen (2011) 243 CLR 400, 408 [20]-[22] (French CJ, Gummow and Kiefel JJ) and R v Klamo (2008) 18 VR 644, 653-654 [38]-[40] (Maxwell P).

1. The submission for the Crown in this Court was that the document was created to have the appearance of a genuine newsletter.  The author clearly intended that the recipients would contact the school where the complainant worked.  The jury was not bound to find against the prosecution on the question of intent.

1. There was an irresistible inference that the newsletter was made by the appellant.

1. It was evidently open to the jury to find that the newsletter was a false document within the meaning of s 83A(6) of the Crimes Act,[8] a matter which was commonly assumed, both at trial and on appeal. 

   [8]As to which see R v Ceylan (2002) 4 VR 208, 209-210 [4] (Winneke P).

1. Respecting the necessary intention, the judge gave this direction, the content of which was correct:

The prosecution must prove that he intended that the recipients at these schools would, as a result of accepting the document as genuine, act to somebody’s prejudice.  That is in this case [the complainant’s] prejudice. 

The term prejudice has a technical, legal meaning.  An act will prejudice someone if it will result in them being deprived of an opportunity to earn remuneration or earn greater remuneration.

The person the accused intended would be prejudiced may be the same person he intended would be deceived into accepting the document was genuine or it may be someone else.  For this element to be satisfied, it’s not sufficient for the accused to have intended that someone would act in a way that may cause prejudice, the accused must intend that someone would act in a way that must result in prejudice.

However, that does not mean you must find that someone actually was prejudiced as a result of accepting the document as genuine.  The focus here is on the accused’s intention at the time he made the document.  If he intended that, due to accepting the document as genuine, a person would act in a way that would prejudice somebody, this element will be met regardless of whether that in fact happened.

Now, in this case, it’s alleged the accused intended as a result of accepting that the fake [newsletter] was genuine, the recipients, the heads of these schools, would act in a way that would prejudice the complainant.  They’d all contact … the complainant’s employer.  This would result, in effect, in her losing her job.  You heard evidence from the recipients of the newsletters about them contacting [the] School and you heard evidence from many of them about their reactions and their comments about the detrimental effect such a newsletter can have on the individual involved.

1. In my opinion, the jury was not bound to have a reasonable doubt that the Crown had failed to establish the component parts of that intention.  A number of circumstances lead me to that conclusion.  It is a question of their cumulative, rather than discrete, impact.

1. First, there was evidence that for a period of years leading up to making of the document the appellant had a very strong animus against the complainant.  It was evident, inter alia, from his retention of the sexually explicit images despite his evidence that he had disposed of them in 2006, by the conduct which constituted the first charge of stalking, from the derogatory statements about the complainant which police found on the computer which they seized in 2007, and from the sending of the fake newsletters to the other schools after the document had been created.

1. Second, it was evident that much work had been put into creating the fake newsletter.  The jury was entitled to conclude that aspects of that work had taken place over a considerable period of time.  So, the jury was entitled to reason that (a) the appellant had obtained electronic copies of the newsletter earlier in 2009, not for the reason which he assigned, but in preparation for making the false newsletter;  (b) a genuine newsletter must have been edited in such a way as to retain the shell, and then saved;  (c) the principal’s signature must have been isolated and placed into a separate file, for later use;  (d) the text had been created;  and (e) the text, the photographs, the principal’s signature, and the Victoria Police logo had been inserted into the shell.[9]

   [9]Or, alternatively, that the text was created in the shell.  It matters not.

1. Third, the document was on its face a document made by the complainant’s employer.  The appellant once having made the document, he sent copies of it to other schools with which, as an employee, the complainant had contact.  There was, then, an employment connotation in what was done.  This was not a case of degrading images of the complainant being made and then sent to her immediate family, or friends.

1. Fourth, it is related to, but distinct from the first matter which I have mentioned, the prosecutor submitted that the appellant had become ‘unhinged’ by the breakdown of his marriage.  The jury saw the appellant, and heard him give evidence.  It was uniquely well-placed to consider whether there was merit to the prosecutor’s characterisation of the appellant’s mental state at relevant times.

1. In my opinion, it was open to the jury to reason, in these circumstances, that the appellant had created the document intending, probably irrationally, to induce the recipients to accept it as genuine, and in that state of mind, act to the complainant’s prejudice (for the moment, not giving that word its s 83A meaning).

1. The jury would surely have rejected, as an alternative hypothesis, that it was the appellant’s intention that the recipients of the document should not be induced to accept it as genuine, even for an instant, and in that state of mind act to the complainant’s prejudice. 

1. That would leave open this competing hypothesis: that the appellant intended to induce the recipients only to accept the document as genuine for a fleeting moment – for as long as it took to read it, rather than immediately discard it; but intended that, having realised that the document was a fake, the recipients would act to the complainant’s prejudice.

1. Considering the competing hypotheses, I see no reason why the jury was bound to find that there was a reasonable doubt whether the intention described at [98] had been established.  It is true that all the recipients quickly realised that the newsletter was a fake; and that when they communicated with the complainant’s employer it was in that state of mind.  But whilst I accept that such evidence could be of some relevance to proof of the appellant’s subjective intention, it could not be conclusive.

1. Then there is the question of ‘prejudice’.  It must have been proved that the appellant intended the recipients of the document to act to the economic prejudice of the complainant – so as to deprive her of the opportunity to earn remuneration.  I do not doubt that the jury would have been readily persuaded that the appellant intended to cause the complainant mental harm by making the document.  That is what he predictably achieved by sending it to the various recipients.  But what of economic prejudice?

1. In my opinion, persuasion that the appellant intended, via the recipients, to cause the complainant mental harm did not mean that it was not open to the jury to conclude that the appellant intended that she should be economically prejudiced.  There are a number of reasons, put together, why that intention might have been inferred.  First, as I noted earlier, the document had an employment connotation.  It was not a document made for distribution to the complainant’s family or friends.  Second, it might readily have been concluded that the appellant’s intention was that the recipients should contact the employer.  Third, the school then had to address the situation in which one of its teachers, named in the document, a person who interrelated with other representatives of the schools’ association, might well be considered unsuitable for that role.  If that was the situation, why would job loss not be one potential outcome?  Fourth, the complainant gave evidence that, when told about the newsletter by the principal, in fact she feared for her job.  That was not evidence of the appellant’s subjective intention, and in fact the complainant did not lose her job.  But, in assessing the appellant’s intention, the jury was not compelled to disregard her evidence about that matter any more than it was obliged to disregard the evidence of recipients about realising that the newsletter was a fake.  Fifth, a number of the witnesses who contacted the principal described the newsletter, in substance, as being damaging to the school and to the individual involved.  That was despite them realising that it was a fake.  They were all cross-examined to the effect that the damaging impact would only arise if the document had been widely distributed.  They agreed.  But the more witnesses who gave evidence of the newsletter being received at their schools, and of its circulation, though limited, at their schools, the more it might have appeared to the jury that the document had been sufficiently widely distributed to have such an impact, as intended by the appellant.

Ground 6

1. It is convenient next to address ground 6.

1. Counsel for the appellant submitted that the judge, in his charge, had impermissibly enlarged the Crown case by directing the jury that what I will call the ‘intention to harm’ required by s 21A (2) of the Crimes Act could be satisfied not only by proof of actual intent but also in either of the ways contemplated by s 21A(3). The latter subsection provides as follows:

(3)For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim, including self-harm, or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if-

(a)the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or

(b)the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.

1. Counsel submitted that, by his directions, the judge expanded the Crown case in two ways, viz:

   First, the first ‘way’ that mens rea could be established included not only an intention to cause mental harm, but also to cause physical harm or apprehension or fear for the safety of the complainant or any other person;

   Secondly, by describing the second and third ‘ways’ that mens rea could be established, it encompassed ‘deemed intention’ pursuant to s 21A(3) of the Crimes Act 1958.

2. Counsel then submitted that the principle in King v The Queen[10] was thereby breached.  She relied also upon R v Wong,[11] R v GAS[12] and Arafan v The Queen.[13]

   [10](1986) 161 CLR 423.

   [11](1988) 37 A Crim R 385.

   [12][1998] 3 VR 862

   [13](2010) 31 VR 82.

1. The consequence of this breach, counsel argued, was that acquittals should be entered on Charges 1 and 3. 

1. It was implicit in counsel’s submissions that the directions were ‘an error or irregularity in or in relation to the trial’, and that as a result of that error or irregularity there had been ‘a substantial miscarriage of justice’: vide s 276(1)(b), Criminal Procedure Act 2009.

1. It was submitted for the Crown that the case at trial, as the prosecutor made clear in opening and in his final address, was that the acts to which Charge 1 and 3 referred were done with the intention – that is, the actual intention – of causing the complainant mental harm.  It was, indeed, the only way that the case could sensibly be put.  The judge had made the way in which the Crown put its case clear in his charge.  To the extent that he gave directions relating to intention which were not part of the Crown case, and which lacked an evidentiary basis, they were otiose.  They occasioned no concern at trial.  No re-direction was sought by either party.

1. Counsel further submitted that the authorities relied upon by the appellant were instances where what happened conferred a forensic advantage to the Crown, or a significant forensic disadvantage to the accused.  But that was not this case.  The evidence adduced for the Crown bespoke an actual intention to cause the complainant mental harm; whilst the appellant’s case was a denial that he sent anything to the complainant or anyone else apart from the January 2007 letters. 

1. In the event, counsel submitted, there was no miscarriage of justice. 

1. The issue now falling for my consideration is the fourth of the matters agitated by the appeal.  It is the third which was not ventilated at trial, the other having only been raised incompletely.

1. The judge directed the jury as follows:

I was just moving on to the second element of that charge and that relates to the accused’s state of mind and the circumstances in which the course of conduct was committed.  This element can be met in three different ways.  First it can be met if you find the accused intended to harm the victim, either physically or mentally or intended to cause the victim to be frightened or apprehensive about her own safety or about the safety of someone else.  In this case, the prosecution allege that the accused intended to cause the complainant mental harm.  Second, this element can be met if you decide the accused knew that his conduct would be likely to cause the victim such harm.  The third way in which this element can be met is if you find that the accused ought to have understood that his course of conduct would have been likely, in the circumstances, to cause the victim such harm and the accused’s conduct actually did have that effect.

This third way is a two part test, in the first part you decide what the accused ought to have understood – ought he have understood that his actions would be likely to cause the victim to suffer mental harm or to become frightened or apprehensive.  This is no longer a question of what the accused ought to have understood when he acted in the way that he did.  When deciding whether the accused ought to have understood the likely consequences of his course of action, you should consider what a reasonable person ought to have understood in the same circumstance.  Ought a reasonable person in those circumstances have understood that if he acted in the way that the accused did, he would be likely to cause the complainant mental harm.  If so, then the accused ought to have understood that his acts would be likely to have that effect.

But it is not enough to decide that the accused ought to have understood that such harm would be the likely result of his actions, under the second part of this test you must also find that the accused’s act actually mentally harmed the victim.  It is only if you find that the accused both ought to have understood that his conduct would have been likely, in the circumstances, to cause the complainant harm and that his actions actually had that result that this third way of proving this element will be met.

It is important to remember these three ways of satisfying this element of the offence are alternatives.  You, therefore, do not need to even consider the question of whether the accused ought to have understood the likely effects of his conduct and the actual effect his conduct had on the complainant if you are satisfied that he intended to harm the complainant or knew that such harm or apprehension was likely.  You only need to be satisfied that one of these three ways of satisfying this element have been proven.  In addition, you do not all need to agree about the particular way in which this element has been satisfied, as long as you all find it has been proven beyond reasonable doubt.  Remember though, if you do rely on the fact that the accused ought to have understood that his acts would have been likely to cause the complainant harm, fear or apprehension, you must also find his acts actually had that effect.

In this case, the prosecution allege, in relation to Charge 1, the course of conduct which I have already described to you.  The SMSs, the letters the sexually explicit images to the school.  The prosecution argue that the intention of the accused – it was the accused that engaged in this course of conduct and his intent was to cause mental harm.  The prosecution argue this is obvious having regard to the texts, letters and photos.  The prosecution also point to the fact, and it is relevant, that the complainant was so harmed.  She said “I was destroyed, I was shattered”, this was her evidence in relation to the meeting she had at school in April 2007.

Similarly, the prosecution argue that in relation to Charge 3, the course of conduct is the sending of the fake newsletters to a number of private schools and the intention on the part of the accused, who the prosecution argue sent these newsletters, was clearly to harm the complainant.

1. I have considered each of the authorities relied upon by appellant’s counsel.  In my opinion, none of them requires a conclusion that the Crown case was impermissibly enlarged in this case.  Further, if and to the extent that the judge’s directions were an error or irregularity in or in relation to the trial, the appellant has singularly failed to satisfy me that as the result thereof there was a substantial miscarriage of justice.

1. In King,[14] there was a re-direction, at the behest of the prosecution, which radically changed the way in which a murder charge had been laid against the accused man.  His counsel had been deprived of the opportunity of cross-examining witnesses on that different case. 

   [14]King v The Queen (1986) 161 CLR 423.

1. In GAS,[15] the Crown conducted its case against an accused charged with murder on the basis that, only if he had stabbed the victim, was it murder.  His defence was that another offender, who had pleaded guilty to manslaughter, had been the attacker.  The jury asked a question which the judge inferred raised the possibility that both offenders had stabbed the victim; and he directed the jury that in such circumstances the accused could be convicted of murder even if he had not inflicted the fatal wound.  The judge’s re-direction was supported by the prosecutor. Again, this involved a radical and late change in the Crown case.  Counsel had not had an opportunity to re-open his client’s case, or address.  The Director of Public Prosecutions, conceded, or ‘virtually conceded’, that the conviction must be set aside.

   [15]R v GAS [1998] 3 VR 862, 863 (Ormiston JA), 877, 878-879 (Batt JA).

1. In Arafan,[16] a case of blackmail that had been opened and conducted by the Crown on an aiding and abetting basis was altered, after the conclusion of the Crown case, to one of joint criminal enterprise.  On appeal, the Crown conceded that the appeal must be allowed.  Ultimately, acquittal was directed, because the evidence adduced at trial could not have established the new case.

   [16]Arafan v The Queen (2010) 31 VR 82.

1. In each of King and Arafan, the Crown raised a new case against the accused after evidence and submissions were concluded.  It was a case in substitution for the case advanced thus far.  The accused had no opportunity of controverting it.  In GAS, the Crown supported the judge putting a new pathway to guilt, which again had not thus far been advanced.  Again, the accused was forensically disadvantaged.

1. It was unfortunate that the judge adverted to the methods of proof of intention contemplated by s 21A(3) when they were irrelevant to the Crown case. He did so, of course, without any encouragement from the prosecutor. But in substance, as distinct from form, the Crown case was not thereby enlarged. His Honour emphasised several times the way in which the Crown actually put its case. The inference of actual intent to harm was overwhelming in respect of both Charges 1 and 3. The prospect that any juror would determine intent by recourse to the requirements of s 21A(3)(a) or (b) – the latter of which, incidentally, required proof of harm caused when proof of actual intent to harm did not – was, in my view, non-existent.

1. In the circumstances which I have described, I am doubtful that any error or irregularity was established.  But if that be wrong, my review of the evidence, as discussed in these reasons, has satisfied me, beyond reasonable doubt, that a verdict of guilty on Charges 1 and 3 was inevitable in the sense that the jury acting reasonably on the evidence before it, correctly instructed, and applying the correct onus and standard of proof, would have been bound to convict, there being no room for reasonable doubt.[17]  In that connection I add add, for sake of completeness, that if the appellant had been forewarned that the judge would charge as he did, the way in which he conducted his defence could have been no different.  His defence was that (apart from the two January 2007 letters) he was not the author of any of the conduct relied upon by the Crown to make out Charges 1 and 3.  He must have offered the same fantastic account of events.

Ground 5

[17]Baini v The Queen. [2013] VSCA 157 [18]-[19].

1. The contention raised by Ground 5 is that there was a miscarriage of justice because the jury, having found the appellant guilty on the two charges of assault (5 and 7), were permitted to return (guilty) verdicts on the two charges of obstruct police (6 and 8). 

1. In argument, counsel for the appellant advanced two arguments; one strictly within the ground as articulated, one not.  The former was that, following conviction on each of the assault charges (5 and 7), the appellant was entitled to plead autrefois convict to the corresponding obstruct police charges (6 and 8).  The elements of the offences were different, but they were based upon ‘substantially the same set of facts.’[18]  Here there was a demonstrable overlap of evidence between the charges of assault and obstruct police.  In such circumstances, the jury should not have been asked to return verdicts on Charges 6 and 8.  R v Weeding[19] supported a conclusion that the convictions on Charges 6 and 8 should be quashed.

   [18]Counsel cited Pearce v The Queen (1998) 194 CLR 610, 616 (McHugh, Hayne and Callinan JJ).

   [19][1959] VR 298, 304.

1. The alternative argument, not strictly within the ground of appeal, was that the convictions on the assault charges should be quashed, on the basis that those convictions amounted to double punishment.[20]

   [20]Counsel relied upon R v Sessions (1998) 2 VR 304, R v Le [2009] VSCA 247 and R v Bradley [2010] VSCA 70.

1. Counsel for the Crown submitted that there were elements of the assaults which were not present with the obstruction offence.  He instanced the physical assaults themselves.  Then, in relation to the obstruct police offences, there were physical and mental elements not required for assault.  In this case, the conduct which constituted obstruction ‘encompassed (but was not limited to) the conduct which constituted assault of the police officers’.  In addition, the obstruction extended to ‘failure to co-operate, [the appellant’s] aggressive manner generally and to physical acts.’  In the event, there was no double jeopardy.  The matters were relevant, at most, to sentence.

1. I have noted the competing submissions in counsel’s addresses at [56]-[62] above. It is next convenient to note some of the directions referable to Charges 5-8 which the judge gave to the jury.

1. It was not suggested that, in the end, the judge incorrectly charged the jury about the elements of the offences.  So I need not say anything about those aspects of his directions.

1. With respect to the charges of assault, the judge said this:

In this case, the prosecution argue the accused applied force to Keleher and Tapai.  Mr Keleher, you heard the evidence of Mr Keleher and Mr Tapai about the accused grabbing Keleher’s wrist and wrenching his forearm, twisting it violently.  You heard the evidence of Mr Cole, Mr Tapai and Mr Keleher about the accused grabbing Tapai’s hand and wrist and twisting it and Tapai feeling immediate pain to the wrist area.  You heard the accused deny assaulting either of those police officers, his only movement being to pull away.  That’s the first element, that’s the application of force.

1. In connection with the charges of obstruct police, the judge relevantly gave this instruction:

… the third element relates to what the accused did.  He must have obstructed the complainant in the course of his duty.  To find that the accused obstructed the complainant in the course of his duty, you must find that he acted in a way that prevented the complainant from carrying out his functions as a police officer, or made it more difficult for him to do so.  And in this case, the prosecution argued that at the very least, the accused made it more difficult for Mr Tapai and Mr Kelleher and you heard the evidence in relation to his aggressive manner, his physical acts, his failure to cooperate.  And so I will not repeat all that evidence.  I will refer to that in a bit of detail later in the charge.  But that is the basis of the evidence relied on in relation to that.

The issue of self-defence having been raised in the circumstances mentioned at [63] above, the judge clarified with counsel what incident the Crown relied upon to constitute the assault on Tapai. Counsel for the appellant agreed that it was on the occasion when, according to Tapai’s evidence, he put his hand inside the appellant’s car, and when the appellant, then being inside, grabbed his wrist and wrenched it back. Counsel explicitly stated that self-defence did not arise in respect of that incident. The question, he said, was whether or not the incident happened. Then, in the case of Keleher, counsel said, the appellant denied the alleged assault; but said that if there was an assault, then it was an act of self-defence. Finally, self-defence arose with respect to the charges of obstruct police. The question was whether the appellant’s actions, after he got out of his car, ‘were an obstruction or ... in self-defence.’

1. The judge then re-directed.

… you will recall that I stated to you that a lawful excuse may be self defence.

Before lunch I said to you that this was not an issue in this trial.  Now that is not correct, so I want to correct that statement immediately.  Although neither party made submissions on self-defence the possibility of self-defence does arise from the evidence of the accused.  You will recall the accused said that he, the accused, was assaulted.  He said after he got out of the car he was being struck.  He said he was being hip and shouldered and later he was being struck with a baton by Keleher.  I must therefore give you some directions on self-defence.

The prosecution must prove that the accused in respect of these charges acted without lawful excuse.  So in addition to all the other elements of the charges that I have already directed you on, the prosecution must also prove that the accused was not acting in self-defence.  The law recognises the right of people to defend themselves from attacks or threatened attacks.  The law says they may act to defend themselves if they believe on reasonable grounds that it is necessary to do what they did in self-defence.  They may do whatever they believe is necessary to defend themselves, even if this involved committing what would otherwise be a criminal act.

So in this case even if you are satisfied the prosecution has proven all of the elements of assault and obstruct police beyond reasonable doubt, the accused will not be guilty of those offences if he acted in self-defence.  Because the prosecution must prove the accused’s guilt, it is for the prosecution to prove beyond reasonable doubt the accused was not acting in self-defence.  It is not for the accused to prove he did act in self-defence.  There are two possible ways for the prosecution to prove the accused was not acting in self-defence.  The first way in which the prosecution can prove the accused was not acting in self-defence is to prove beyond reasonable doubt that when he assaulted Keleher and obstructed Tapai and obstructed Keleher, he did not believe that it was necessary to do what he did to defend himself.

1. It will immediately be apparent that, for reasons explicable by his discussion with counsel, the judge did not specifically direct about self-defence with respect to the alleged assault on Tapai.  His Honour did not explain to the jury why that was so.

1. The judge summarised relevant evidence.  Three police officers – Cole, Tapai and Keleher had given evidence of the appellant assaulting Tapai when the latter put his left arm into the appellant’s car.  The same officers had given evidence that the appellant behaved aggressively when he finally got out of his car – rushing at Keleher, grabbing Keleher’s hand and twisting it violently.  The appellant had resisted being handcuffed.  Keleher had used a baton and capsicum spray in response to the appellant’s actions.  The appellant had given evidence that he did not grab Tapai by the wrist and twist it back.  He had got out of his vehicle with difficulty.  Tapai had hip and shouldered him.  Keleher had approached him and started punching him in the chest with his baton.  He had been sprayed in the face.  He had not assaulted Keleher.  Tapai had struck him from behind on the left side with his baton.  He denied having been aggressive or uncontrollable.

1. The judge did not refer, either when discussing the elements of assault, or when summarising the evidence, to evidence given by Tapai of a second assault by the appellant upon him.  

1. I should next refer to the relevant parts of s 31 of the Crimes Act1958.

31Assaults

(1) A person who –

…

(b) assaults or threatens to assault, resists or intentionally obstructs –

(i)a member of the police force in the due execution of duty; or knowing that the member, officer or person is such a member, officer or person;

…

is guilty of an indictable offence.

…

(2) In subsection (1), assault means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is –

(a)without lawful excuse; and

(b)with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty –

and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).

1. Four separate and distinct offences against members of the police force are created by s 31(1)(b): assault, threaten to assault, resists and intentionally obstructs.[21]  A count including all four would be bad for duplicity.[22]  In Galvin (No 2), the Full Court (O’Bryan, Dean and Hudson JJ) observed:[23]

… [I]t is proper to bear in mind that the concept of assault is quite different from the concept of resisting.  The concept of obstructing is different from either of the other two.  A participant in the one episode may offend in all three ways.  On the other hand, a particular act may be clearly an assault but not a resisting or an obstructing, or it may clearly be a resisting and not an assault or an obstructing, or it may be merely an obstructing and not an assault or a resisting.  Each constitutes a particular and distinct mischief justifying prohibition and threat of punishment and we can see no reason for supposing that the Legislature intended to combine these three different elements in order to constitute one offence of assaulting or resisting or obstructing.  Each, in our opinion, constitutes a separate offence. …

It is true that in some cases the one act may render the actor guilty under all three prohibitions – but it is no uncommon thing for the same act to constitute an offence against more than one statute or rule of law.

[21]R v Galvin(No 2) [1961] VR 740, 742.

[22]Ibid, 743.

[23]Ibid, 742–3.

1. Arising out of what I have thus far said, there is a question whether the conduct said to constitute the appellant’s assault on Tapai was sufficiently identified.  Tapai described two assaults in his evidence: the first when he reached inside the appellant’s car; the second when he put up his left hand to stop the appellant rushing towards his car, the appellant again grabbing his wrist, pulling it back, and  twisting it.  Tapai said explicitly:  ‘He assaulted me twice.’

1. The two occasions were distinct in time.  If there was doubt as to which assault the Crown relied upon, there could well have been a problem of latent duplicity[24] – not that any such complaint was raised by this appeal. But it seems to me clear enough from that part of the judge’s charge noted at [128], which correlated with what counsel agreed was the situation when the self-defence exception was taken, that the Crown relied upon the assault first in time.  It is the fact, however, that the judge did not explain to the jury, when re-directing as to self-defence, why it was that he did not mention that assault.

   [24]The situation would likely not have been one of the continuing episode kind considered in R v Heaney (2009) 22 VR 164.

1. The obstructing of the two policemen might have been constituted by a variety of acts – the appellant refusing to get out of his car so that the police could search it, falsely telling the police that he did not have a computer in his car, grabbing and twisting Tapai’s hand when the latter attempted to remove the car keys, pushing his way past the policemen, yelling abuse and refusing to allow the police to search his vehicle, rushing repeatedly at Keleher, resisting attempts to handcuff him, separately grabbing each of Keleher and Tapai in the course of the confrontation.  In that connection, I add, there was Tapai’s evidence that he was assaulted twice; and his evidence that, if you took everything into account, ‘there may be ten counts of assault’ involving Keleher.

1. The evidence being in that state, the judge directed the jury, as I earlier noted, that, on the charges of obstruct police, ‘you heard the evidence of [the appellant’s] aggressive manner, his physical acts,[25] his failure to co-operate.’  Whilst no exception was taken to that direction, which did not identify the evidence, I consider that it created the real prospect that the jury would include, in the conduct relied upon by it to find that Charges 6 and 8 were made out, the entirety of the assaults – that is, including the two pieces of conduct relied upon to found Charges 5 and 7; whilst also using those pieces of conduct to find that Charges 5 and 7 were made out.  To my mind, nothing in his Honour’s later summary of the evidence was such as to dispel that prospect.

   [25]My emphasis.

1. I think that it is clear enough why the judge directed as he did.  The primary ‘defence’ was a denial of offending conduct.  The fall-back position was, with the exception of one piece of conduct, an allegation of self-defence.    

1. The fact that the parties approached the matter, in substance, on an ‘all or nothing’ basis does not mean that that it was unnecessary for the jury to be told both what evidence could be used in proof of a particular charge and what evidence could not be used in proof of that charge.  A single act should not give rise to multiple punishments.  As Hayne JA observed in R v Sessions,[26]  recording a conviction is part of the punishment meted out to an offender. 

   [26][1998] 2 VR 304, 312-313.

1. It was possible, in my view – I do not say that it was desirable – for the Crown to indict the appellant on Charges 5-8, and to make it crystal clear in address, and to ensure that the judge made it crystal clear to the jury, that the conduct relied upon in proof of the assaults must not be considered by the jury in proof of the obstruct police charges.  Then, there might well be no reason why, if guilty verdicts were returned, there should not be conviction on all charges.  But in this case, in the circumstances which I have described, it cannot be safely postulated that the jury approached its consideration of Charges 5-8 in that way.  Indeed, I consider that the contrary is more probable.

1. There was plainly evidence which made it inevitable that findings of guilt should be returned on Charges 5-8. There was no obstacle, I consider, to verdicts being taken on all those charges. But punishment in the form of conviction should not have been recorded on both the charges of assault and of obstructing police. The appellant has satisfied me that there was a substantial miscarriage of justice of the kind falling within s 276(1)(c) of the Criminal Procedure Act 2009 by the recording of convictions on all four charges.

1. What is to be done?  The jury found that the assaults, which I have concluded were sufficiently identified, were proved.  I think that the best course is to sustain those convictions, but to quash the convictions on the charges of obstruct police and set aside the sentences imposed  on those charges.  Bearing in mind the fact that the appellant denied all the alleged conduct, a theoretical justification for that course, despite its factual improbability, is that the jury might have relied upon the evidence of the two assaults as the sole proof of the obstruct police charges.

A needless problem

1. It is for the prosecutor to determine the charges on which an accused person is to be indicted.  All criminal conduct is to be addressed.  But there is no virtue in an overloaded indictment.  In the present case, there was little obvious worth in preferring Charge 2 and each of Charges 5-8 against the appellant;  and difficulties were created because the indictment was in that form.  The making of the fake newsletter could have been brought to account in sentence as part of the background of Charge 3.  As the indictment was in fact preferred, the judge understandably did not cumulate any part of the sentence on Charge 2 on the sentence on Charge 3.  Then, as to Charges 5-8, all of the appellant’s criminality could have been addressed by the two obstruct police charges.  Again, as the indictment was in fact preferred, the judge did not cumulate as between the assault and obstruct police sentences. 

Conclusion

1. Save for quashing the appellant’s conviction on Charges 6 and 8 and setting aside the sentences passed thereon, the appeal against conviction should be dismissed.

The sentence appeal

Ground 1: Delay

1. Counsel for the appellant submitted that the judge erred by not bringing to account the mitigatory effect of delay, notwithstanding that it was not raised by counsel on the plea.  She submitted that material as to the appellant’s mental unwellness was adduced on the plea, and that it was likely that the delay caused the appellant particular anxiety.

1. In my opinion, this ground should be rejected.  The contention that the judge ‘erred’ by not considering delay, when the issue was not raised by appellant’s counsel on the plea - and understandably so - is a contention without merit.  Whilst there was significant delay between first offending and time of trial, the length of time between last offending and trial was quite short.  Moreover, the appellant’s conduct in the period between first offending and trial contraindicated him taking the opportunity for rehabilitation.  To the contrary, the appellant offended whilst on bail, he offended in breach of a renewed intervention order, and he committed unrelated offences.  I do not ignore the fact that, in respect of the earliest offending, the appellant had the prospect of criminal prosecution hanging over his head for quite a time.  But I could not conclude, in the circumstances which I have described, that it could have stood as a mitigating circumstance of any significance. 

Manifest excess

1. Counsel made a number of general submissions.  She submitted that the sentence on every charge, the degree of cumulation, and the non-parole period fixed, were all manifestly excessive.  She identified seven mitigatory circumstances applicable to each charge.  The judge referred, in substance, to all of them in his sentencing remarks, with the exception of delay.  Counsel further submitted that totality was of particular relevance, given that the appellant was sentenced to six months’ imprisonment in 2010 for the child pornography found on the computer which was seized from him in May 2007.  She noted also that the Crown had submitted that, for the instant offending, a total effective sentence of between five and seven years would be proper;  with a non-parole period of between three and five years.

1. Counsel then directed attention to the sentences imposed on the individual charges.  She relied upon some contentions which I have elsewhere rejected - for instance, that the stalking did not cause the complainant mental harm.  I will not repeat all that counsel submitted, but note the following contentions:  (1) the extent of cumulation of the sentence on Charge 1 on the base sentence, the sentence on Charge 1 being a heavy sentence viewed discretely, was manifestly excessive;  (2) the sentence on Charge 2 was very heavy, particularly bearing in mind a significant overlap between Charges 2 and 3;  (3) The sentence on Charge 3 was far too high.  There was only one incident of stalking;  (4) The sentence on Charge 4, the child pornography charge was far too heavy because the number of images was relatively modest, the number of more extreme images was limited, and the images were only on the appellant’s computer for a short while (that is, before it was seized);  (5) the sentences on Charges 5-8 were far too heavy.  Had the appellant been charged only with these offences, it was unlikely that he would have been imprisoned.

1. In oral argument, there was reference to two instances of stalking recently dealt with by this Court.  Counsel relied upon Wilson v The Queen[27] to support her proposition that the sentences on Charges 1 and 3 were manifestly excessive.  As Redlich JA, who presided in Wilson, observed in argument, that was a very different case to the matter now before us.  The sentence there imposed[28] was very modest, and the unrepresented applicant’s challenge to it emphasised grounds which were of an idiosyncratic kind. 

   [27][2012] VSCA 40.

   [28]A total effective sentence of 15 months’ imprisonment.

1. Reliance on Wilson underscores the lack of utility in simply comparing numbers when attempting to establish manifest excess.  The same may be said of Carroll v The Queen,[29] where sentences of five years, three years and six months and three years imprisonment on three counts of stalking – they were three counts amongst many others for different offences – were held not to be manifestly excessive.  Circumstances of offending and offender are infinitely variable, and sentences, consistently with principle, may also vary considerably.

   [29][2011] VSCA 150.

1. In the circumstances which I have earlier described, the convictions on Charges 6 and 8 should be quashed and the sentences imposed thereon be set aside.  Otherwise, I am not at all persuaded that any of the individual sentences exceeded the sound exercise of the sentencing discretion.  The judge’s sentencing remarks addressed all matters which emerged from the evidence at trial and on the plea.  He made clear, and in my view unimpeachable, findings as to circumstances of aggravation and mitigation.  I accept that the sentences on Charges 1-3 were substantial – I do not say stern.  But the appellant’s conduct was repugnant in the extreme.  As the judge said, it involved a gross breach of trust.  It was intended to cause the complainant mental harm, and prejudice her employment.  The Charge 1 conduct was protracted.  The Charge 2 conduct was evidently a considerable time in the planning and execution.  The Charge 3 conduct involved a substantial distribution of material which was degrading of the complainant.  It was conduct

likely to have a long-term impact upon the complainant, because she could justifiably perceive that her headmaster, and others at schools with which she has professional interaction, either know or may know about the content of the fake newsletter.  It may be accepted that the appellant was ‘unhinged’ when he acted as he did.  But his conduct was nonetheless calculated – in its planning, execution and attempts to escape being implicated.

1. Nor do I consider that the extent of cumulation was excessive.  The judge only cumulated where it was appropriate, and he obviously had totality in mind.  He

produced a total effective sentence which in my view was quite appropriate to the circumstances of the offending and the offender.  I am of the same opinion with respect to the non-parole period which his Honour fixed.

1. For two reasons, the quashing of the convictions on Charges 6 and 8 do not affect those conclusions. First, the overall criminality of the offending was not thereby altered. Second, there was no cumulation of the sentences imposed on those charges. There is no occasion to vary sentences in reliance on s 277(3) of the Criminal Procedure Act.

Conclusion

1. The sentences on Charges 6 and 8 having been set aside in consequence of the quashing of the convictions on those charges, the sentence appeal should simply be dismissed.

REDLICH JA:

1. I have had the advantage of reading the reasons of Ashley JA.  I agree that the matter should be disposed of in the manner he proposes.

PRIEST JA:

Introduction

1. I have had the considerable advantage of reading the reasons of Ashley JA in draft.  His exposition of the facts and issues has to a large extent relieved me from their recitation. 

1. So far as what his Honour has written concerning conviction, I respectfully agree with his reasons for rejecting Grounds 1 (save so far as the ground is directed

to charge 2), 5 and 6.  Thus I agree that the appellant has failed to demonstrate that the convictions on charges 1, 3, 5 or 7 are attended by error.  And I agree specifically with his Honour’s reasons for concluding that the convictions on Charges 6 and 8 cannot be permitted to stand.

1. It is my misfortune, however, to disagree with his Honour’s analysis with respect to the first ground of appeal so far as it relates to Charge 2.  In my opinion, for reasons which I will explain, the conviction on Charge 2 – making a false document – must be quashed, and a verdict of acquittal entered.

1. Quashing of the conviction on Charge 2 would also lead me to allow the sentence appeal.

The conviction for making a false document cannot be permitted to stand

1. As has been observed, a verdict of guilty was returned on Charge 2 on the Indictment, a charge of making a false document under s 83A of the Crimes Act 1958.[30]  The interwoven nature of the foundational facts on this charge with those on Charge 3, stalking, may to some extent be judged by the fact that the sentence on Charge 2 was to be served wholly concurrently with that on Charge 3.  Indeed, it is not disputed that one of the bases upon which it was sought to establish that charge of stalking was by the sending of offensive material to the complainant’s place of employment.

   [30]The Statement of Offence subjoined to Charge 2 is: ‘Making a False Document contrary to s 83 of the Crimes Act 1958’. Nothing turns, however, on this error.

1. At the risk of some repetition, it will be recalled that the facts relied upon as the basis of Charge 2 are that, on 23 and 24 November 2009, eight private schools received by post a copy of what purported to be the ‘[School Name] Messenger’, a newsletter produced by a suburban Melbourne secondary school.  There were nine documents[31] which had been posted in Melbourne on or about 20 November 2009.  Each ‘newsletter’ contained sexually explicit images of the complainant, HG, accompanied by highly inflammatory text.  The fake newsletters had been mocked-up using the masthead of a genuine ‘[School Name] Messenger’, and contained a Victoria Police crest and the purported signature of the headmaster of the school (he not having authorised the document or the use of his signature).  Copies of the sexually explicit images were found on the hard drive of the appellant’s computer, when it was seized by police on 18 May 2007, as were electronic copies of the genuine newsletter containing the headmaster’s signature.  The appellant had previously been a member of Victoria Police.  Representatives of seven of the eight schools contacted the headmaster to say they had received it.  He brought it to the attention of HG, who was a teacher at the school.  She was devastated and fearful that she would lose her job. 

   [31]One school had two campuses, and a copy of the bogus newsletter was sent to each.

1. The appellant’s defence essentially was alibi.  He claimed to have been camping at Cobram when the documents were posted (although in cross-examination he agreed that it would have been possible for him to have made the eight hour round trip in one day).

1. It is submitted by the appellant that the conviction on Charge 2 is unsafe and unsatisfactory, in the sense that it was not open to a properly instructed jury to be satisfied of guilt beyond reasonable doubt.[32]  The argument is seductively simple – the newsletter was so obviously fake that it was not open to the jury to exclude the possibility that the person who sent it did not intend another person to accept it as genuine and to act to the detriment of the complainant, HG.

   [32]Libke v R (2007) 230 CLR 559, 596–7 [113]. See also M v The Queen (1994) 181 CLR 487, 492, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ);  Weiss v The Queen (2005) 224 CLR 300, 316, [41] (The Court); SKA v R (2011) 243 CLR 400, 408 [20], [21] (French CJ, Gummow and Keifel JJ); R v Klamo (2008) 18 VR 644, 653-4 [38]–[40].

1. Section 83A of the Crimes Act1958 is entitled Falsification of documents.  It is found in Division 2 , headed Theft and similar or associated offences, of Part 1 of the Act, under the sub-heading Fraud and blackmail. As is plain from s 83B, the offence created by s 83A is designed to replace the common law offence of forgery and uttering, as part of a code concerning the making and use of false documents.[33] 

   [33]R v Gatzka (2004) 9 VR 459, 463 [10].

1. So far as is relevant for present purposes, s 83A provides:[34]

   [34]My emphasis.

83AFalsification of documents

(1)   A person must not make a false document with the intention that he or she, or another person, shall use it to induce another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person’s, or to another person’s prejudice.

…

(6)   For the purpose of this section, a document is false if it purports –

(a)to have been made in the form in which it is made by a person who did not in fact make it in that form; or

(b)to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or

(c)to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or

(d)to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or

(e)to have been altered in any respect by a person who did not in fact alter it in that respect; or

(f)to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or

(g)to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or

(h)to have been made or altered by an existing person who did not in fact exist.

…

(8)   For the purposes of this section, an act or omission is to a person’s prejudice if, and only if, it is one that, if it occurs –

(a) will result –

(i)in the person’s temporary or permanent loss of property; or

(ii)in the person’s being deprived of an opportunity to earn remuneration or greater remuneration; or

(iii)in the person’s being deprived of an opportunity to obtain a financial advantage otherwise than by way of remuneration; or

(b)will result in any person being given an opportunity –

(i)to earn remuneration or greater remuneration from the first-mentioned person; or

(ii)to obtain a financial advantage from the first-mentioned person otherwise than by way of remuneration; or

(c)will be the result of the person's having accepted a false document as genuine, or a copy of a false document as a copy of a genuine one, in connection with the person’s performance of a duty.

…

(10) In proceedings for an offence against this section, if it is necessary to allege an intent to induce a person to accept a false document as genuine, or a copy of a false document as a copy of a genuine one, it is not necessary to allege that the accused intended so to induce a particular person.

1. Within the factual framework of this case, the elements of the offence under s 83A of which the jury needed to be capable of satisfaction beyond reasonable doubt are:

1.   The appellant made a false document as defined in s 83A(6).

2.   The appellant made the false document with the intention that he, she or another person would use it:

(a)to induce another person to accept it as genuine; and

(b) by reason of accepting it as genuine, do some act to another person’s prejudice.

1. There was ample evidence in this case that the appellant made the bogus newsletter.  The finding of copies of the sexually explicit images, the genuine newsletter and Victorian Police crest on his computer, together with the other circumstantial evidence, rendered satisfaction to the criminal standard open.  Indeed, once the jury rejected the appellant’s claim that he had been ‘set up’, a finding that he made the bogus newsletter was in my opinion inevitable.

1. Further, there is no doubt that the document was false, within the meaning of s 83A(6), and thus for the jury to so find. In Ceylan,[35] Winneke P described the essence this aspect of an offence under s 83A as follows:[36]

… The subsections of s 83A of the Crimes Act are not easy to construe or apply and require close attention to detail in the manner of presentation of charges alleging offences against them. The essence of the crime of ‘making a false document’ contrary to s 83A(1) is not simply that the document is false in the sense that it contains material untruths about past facts; rather its essence is to be found in the fact that the document ‘tells a lie about itself’ in the sense that it purports to be something which it is not (that is, not ‘an authentic document’). Thus, the gravamen of the offence is to be found in subs (6) which sets out the various ways in which a document can be ‘made false’ for the purposes of the offence, and which marks the offence out from related offences such as ‘false accounting’ (s 83) and ‘obtaining financial advantage by deception’ (s 82). The difficulties in the interpretation of s 83A have been recently pointed up in the decision of the English Court of Appeal in Attorney-General's Reference (No 1 of 2000).[37]…

His Honour’s remarks tend to emphasise the undeniable fact that s 83A is part of a code dealing with offences of fraud and dishonesty.

[35]R v Ceylan (2008) 4 VR 208.

[36]Ibid, 209–10 [4] (emphasis added).

[37][2001] 1 WLR 331.

1. It was also open to the jury to infer that at the time the appellant made the fake newsletter, he intended the recipient – ‘another person’ – to accept it as genuine, if only fleetingly.  The only motivation for mocking-up the masthead from a copy of the authentic newsletter can have been to induce the recipient – if only briefly – to think that it was a genuine newsletter from the named school and thereby to look at its content.  In my opinion the inference is compelling that the maker of the document used the masthead so as to ensure that the reader would view its content.

1. The point of difficulty is whether it was open to the jury to infer that the appellant intended that another person (the recipient) would, by reason of accepting the fake newsletter as genuine, do some act to another person’s (HG’s) detriment.

1. In Tobierre[38] the Court of Appeal (UK) was called on to construe s 3[39] – upon which s 83A is based – and s 10[40] of the Forgery and Counterfeiting Act 1981 (UK).  Tudor Evans J, giving the judgment of the Court (O'Connor L.J., Tudor Evans and Eastham JJ), said:[41]

There are two possible constructions of the section: first, that the only intention which has to be proved is an intention to induce someone to accept the instrument as genuine.  On this construction, once such an intention is proved, it is simply an objective question whether that person, by accepting the instrument as genuine, in fact acted or omitted to act to his own or some other person's prejudice.  The alternative construction requires proof of a double intention, the intention to induce and an intention that the other person shall act or omit to act to his own or someone else’s prejudice. Sections 1, 2, 4 and 5, which are the other offence creating sections, do not assist upon the construction of section 3.  Mutatis mutandis, the same language is used.  But, in our view, sections 3 and 10 of the Act of 1981, when read together, make it clear that proof of a double intention is necessary.

With respect, in my opinion the Court was correct to find that the equivalent section to s 83A(1) required a ‘double intention’. Thus in the context of the present case, the evidence needed to be capable of satisfying the jury that when he made the fake newsletter, the appellant had the intention not only to induce another person (the recipient) to accept it as genuine, but also the intention that the person would act to another’s (HG’s) detriment by accepting it as genuine.

[38]R v Tobierre [1986] 1 WLR 125; [1986] 1 All E.R. 346.

[39]Section 3 of the Act provided:

3. The offence of using a false instrument.

It is an offence for a person to use an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

[40]Section 10(1) is in very similar terms to s 83A(8) of the Crimes Act 1958.

[41]R v Tobierre [1986] 1 WLR 125, [1986] 1 All E.R. 346, 128 (WLR).

1. The newsletter was so obviously non-genuine, in my opinion, that any person receiving it, looking at the pictures contained within it and reading the text, would almost immediately be compelled to the conclusion that it was not a genuine newsletter from the named school.  That said, the whole point of the mocking-up of the masthead must have been to entice the recipient – even if only momentarily – to view its contents.  Hence, quite clearly, the first part of the necessary two part intention was open on the evidence. 

1. In my view it is also plain, however, that although a person receiving it (relevantly, in this case, HG’s employer and others) might be prejudiced in a general sense against HG, that prejudice would arise from the unsavoury nature of the fake newsletter’s content, rather than by reason of accepting it as genuine. It must be borne steadily in mind that the prejudice that an accused must intend to induce is more than prejudice in the ordinary sense (such as, in this case, personal embarrassment or humiliation). The prejudice that an accused must intend to induce is that described in s 83A(8) which, generally (and not wholly accurately) described, is some form of economic disadvantage.

1. When charging the jury the judge gave correct directions on the requisite intention.  He said in part: [42]

   [42]Charge 1314–5.

The fifth element also focuses on the accused’s intention.  The prosecution must prove that he intended that the recipients at these schools would, as a result of accepting the document as genuine, act to somebody's prejudice.  That is in this case the complainant’s prejudice.  [HG’s] prejudice.

The term prejudice has a technical, legal meaning.  An act will prejudice someone if it will result in them being deprived of an opportunity to earn remuneration or earn greater remuneration.

The person the accused intended would be prejudiced may be the same person he intended would be deceived into accepting the document was genuine or it may be someone else.  For this element to be satisfied, it’s not sufficient for the accused to have intended that someone would act in a way that may cause prejudice, the accused must intend that someone would act in a way that must result in prejudice.

However, that does not mean you must find that someone actually was prejudiced as a result of accepting the document as genuine.  The focus here is on the accused’s intention at the time he made the document.  If he intended that, due to accepting the document as genuine, a person would act in a way that would prejudice somebody, this element will be met regardless of whether that in fact happened.

Now, in this case, it's alleged the accused intended as a result of accepting that the fake [Named School] (sic., newsletter) was genuine, the recipients, the heads of these schools, would act in a way that would prejudice the complainant.  They’d all contact [Named School], the complainant’s employer.  This would result, in effect, in her losing her job.  You heard evidence from the recipients of the newsletters about them contacting [Named School] and you heard evidence from many of them about their reactions and their comments about the detrimental effect such a newsletter can have on the individual involved.  I’ll go to that evidence in a little bit more detail later.

1. Despite the jury having been given accurate instructions, however, in my opinion the verdict on Charge 2 cannot be permitted to stand.

1. Any person with a modicum of sense would have realised in the blink of an eye – perhaps a startled eye – that the newsletter was not genuine. And an unreasonable individual might have harboured some attitude of prejudice in a general sense directed toward the complainant due to the manner in which the complainant is depicted. But that prejudice would not be prejudice in the sense contemplated by s 83A(8); that is, in the complainant ‘being deprived of an opportunity to earn remuneration or greater remuneration’ because of the recipient ‘accepting it as genuine’. More to the point, in my opinion it was not open to the jury to infer that the appellant might have harboured an intention to induce someone to act to HG’s prejudice as a result of accepting the document as genuine. It is inconceivable that the appellant could have entertained the view that, as a result of thinking that the newsletter was a genuine publication, HG might lose her job. I have no doubt that, once the jury were satisfied that the appellant had made (and sent) the bogus newsletter, they would have concluded that he intended to cause HG very great embarrassment and humiliation. But that is not the intention required for conviction under s 83A.

1. The verdict on Charge 2 is, in my opinion, unsafe and unsatisfactory, and must be set aside.

An overloaded indictment

1. I should not leave this topic without commenting on the unsatisfactory nature of the Indictment. It is plain that s 83A is part of a suite of offences designed to deal with fraud of one kind or another. As is clear, the offence in s 83A is intended to embrace the kind of conduct that once would have been covered by the common law offence of forgery and uttering. Section 83A was a wholly unsuitable vehicle for the prosecution of the kind of unsavoury conduct in which the appellant indulged. To add a charge under s 83A, when the relevant conduct was already – and more appropriately – caught by a charge of stalking,[43] was to overload the Indictment, and thereby to cause unwarranted difficulty to all involved.  Greater discrimination should have been exercised in the drafting and filing of the Indictment.

   [43]I note that there was no complaint by the appellant in the Notice of Appeal or Written Case of double jeopardy or double punishment.

The sentence appeal 

1. In my view, the quashing of the conviction on sentence on Charge 2 (making false document), and of those on Charges 6 and 8 (obstructing police), would lead to the sentencing discretion being reopened (even appreciating, as I do, that the sentences on those charges were concurrent – or largely so – on the sentence on Charge 3, stalking).

1. Exercising the discretion afresh, I would sentence the appellant to be imprisoned for three (3) years and six (6) months on Charge 3 (stalking), but would confirm the sentences on Charges 1 (stalking), 4 (possess child pornography), and 5 and 7 (assault police).  I would also confirm the orders for cumulation.  That would lead to a total effective sentence of five (5) years’ imprisonment, upon which I would fix a non-parole period of three years and four months.

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