Simpson v Herrinton - [2022] WASC 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SIMPSON -v- HERRINTON [2022] WASC 50
CORAM:   HALL J
HEARD:   1 DECEMBER 2021
DELIVERED          :   18 FEBRUARY 2022
PUBLISHED           :   21 FEBRUARY 2022
FILE NO/S:   SJA 1048 of 2021
BETWEEN:   COREY CLINTON SIMPSON
Appellant
AND
DAVID RICHARD HERRINTON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B COLEMAN
File Number            :   HV 471-2 OF 2019

Catchwords:

Criminal Law - Appeal against conviction - Stalking - Criminal Code s 338E(2) - Whether the magistrate applied incorrect test in determining whether conduct could reasonably be expected to intimidate - Whether the magistrate erred by taking into account five incidents when only two could have occurred within the time period specified in the charge - Whether the magistrate erred by taking into account evidence relating to another charge

Legislation:

Criminal Code, s 338E(2)

Result:

Extension of time granted
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on ground 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
Respondent	:	Ms R C Panetta

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
CB v The State of Western Australia [2006] WASCA 227
Conomy v Maden [2016] WASCA 30
Cotter v The State of Western Australia [2011] WASCA 202
Cowie v Wood [2021] WASC 341
Hellings v The Queen [2003] WASCA 209
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Jolley v Truong [2021] WASC 194
Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196
Orreal v The Queen [2021] HCA 44
Starling v Ostrowski [2001] WASCA 74
The Queen v Dossi (1918) 13 Cr App R 158
Tonkin v Macintosh [2021] WASC 118
Weiss v The Queen [2005] HCA 81
XHA v The State of Western Australia [2022] WASCA 8

HALL J:

The appellant was charged with two counts of stalking contrary to s 338E(2) of the Criminal Code. He pleaded not guilty to the charges and the matter proceeded to trial. He was found not guilty of the first charge and guilty of the second charge. The appellant seeks leave to appeal against his conviction of the second charge.
The conviction occurred on 1 April 2021 and the appellant was sentenced on 25 June 2021 to a 12‑month Community Based Order. Accordingly, the last date for commencing an appeal against the conviction was 23 July 2021. The appeal notice was not filed until 4 August 2021 and thus an extension of time is required. The solicitor for the appellant has filed an affidavit explaining that the delay was due to some initial uncertainty as to whether an appeal should be brought and pressure of work. The delay is relatively short and an extension of time is not opposed by the respondent. An extension of time should be granted.
There are three grounds of appeal. The first ground, in essence, alleges that the learned Magistrate erred by applying the wrong test to determine whether the appellant's conduct was such that it could reasonably be expected to intimidate. The second ground alleges that the learned Magistrate erred by taking into account five incidents when only two of those incidents could have occurred within the time period specified in the charge. The third ground alleges that the learned Magistrate erred by taking into account evidence relating to the first charge when considering the second charge.
Leave to appeal is required in respect of each ground of appeal. Leave can only be granted if a ground has a reasonable prospect of succeeding. Leave should be granted in respect of grounds 1 and 2 but refused in respect of ground 3. However, although grounds 1 and 2 are reasonably arguable, they do not ultimately succeed. The appeal must be dismissed.

The Charges

As one of the grounds relates to evidence relevant to the first charge (of which the appellant was acquitted) it will be necessary to refer to that charge and the evidence that pertains to it. Given the nature of the allegations I will refer to the complainant on the first charge as KP and the complainant on the second charge as GL.
The charges were:
1.that between 24 July 2019 and 5 August 2019, at Harvey, [the appellant] pursued another person, namely KP, in a manner that could reasonably have been expected to intimidate that person;
2,that between 2 August 2019 and 6 August 2019, at Harvey, [the appellant] pursued another person, namely GL, in a manner that could reasonably have been expected to intimidate that person.

The Prosecution Case

In opening the prosecutor said in regard to charge 2:
… the matter of (GL) is from mid-July to early August 2019. The victim heard her name being called by an unidentified male as she was leaving her workplace, which is the hair salon, 65 Uduc Road in Harvey. As a result of these incidents - caused her to become fearful, as they occurred while she was placing her newborn infant into her vehicle at the front of the premises after dark.
Friday 2 April 2019 (sic), the victim was, again placing her child and associate items into her vehicle when she was approached by a male who had his face partially covered by a bandana. The male said to her, “Hi (GL)”, and kept walking past. On 6 August 2019, staff arrived at the hair salon to find a bunch of flowers and a note attached to the door, addressed to the victim. The note was written in print and said:
Will you please fuck me, your beautiful baby - bandana boy.
The victim was extremely intimidated by this series of events, which appeared to be escalating, so she reported the matter to police. When (the appellant) was spoken to on 23 September 2019, he - an interview was commenced, and some admissions were made.[1]
[1] ts 29/3/21, 6.

Prosecution evidence

GL was the complainant in respect of the second charge. She said that approximately two weeks before the first incident involving her occurred, she began visiting her mother's hair salon. GL had worked there previously but took a break following the birth of her baby daughter. She attended the salon one to two days per week to provide assistance to her mother. When she visited the salon, she would take her daughter, who at that time was five months old.[2]
[2] ts 29/3/21, 11, 17, 25.
The first incident involving GL occurred on an evening when she was at the salon. She went to her car which was parked at the front of the salon. It was approximately 6.20 ‑ 6.30 pm and dark outside. She heard a male voice yell out '(GL), (GL), how's it going? How are you?'. She said the sound was coming from the adjacent park but due to the darkness she could not see anyone. She said she 'felt a little creeped out' because the person did not say her name in the usual way, he sung it and that 'made her feel uncomfortable'.[3] She went back into the salon and carried on with what she was doing.
[3] ts 29/3/21, 16 - 17.
GL said the same thing happened on other occasions. Each time the circumstances were similar: a voice would yell out to her and call out her first name. She would look up, but no one was there. Every time this occurred it was dark outside. She said there were about three occasions when she heard someone yell out to her. She thought it was a ‘bit creepy’ because she could never see the person calling her.[4]
[4] ts 29/3/21, 12 - 13.
When GL was asked how long after the first incident that the second incident occurred, the following exchange with the prosecutor took place:
So when did that happen - when's the next time that something happens, then?---Because I didn't really take note of it, like, and think “gee, you know, that happened on that day”, because I didn't think much of the first thing. I just thought it was someone yelling out my name, and then the second time it happened - yes, I can't remember the exact date.
Okay, but the second time it happened, how long after the first time did it happen?---I honestly can't comment because I don't want to speculate or anything. I don't know.
Okay. All right?---Yes, I can't remember.
And you mentioned earlier in your evidence that it happened probably three times?---Yes, about three times.
Over what period of time?---I think it would have only been about two or three weeks, because I had - you know, and it would have probably only been a Thursday or a Monday because that was really the only times I went into the salon, was just for a visit. [5]
[5] ts 17.
GL said that the second occasion was similar to the first, with someone yelling out to her from the same park area while she loaded her pram and other belongings into her car. She felt uncomfortable and went back into the salon where her mother was waiting for her with her baby. She agreed that this occurred three times over a two or three‑week period and that each occasion was around the same time in the evening, approximately 6.10 pm ‑ 6.30 pm.[6]
[6] ts 18.
GL then described the first time the man approached her. She had put her pram in her car and was exiting the salon a second time to put her nappy bag in her car. As she stepped out a man wearing a black hoodie with black pants walked right past her and said 'oh, hey, (GL). How's it going?'. The complainant quickly put her nappy bag into her car and ran back inside the salon. Since the person knew her name, she thought it might have been someone who knew her from school. Inside the salon she described the incident to her mother as being 'the scariest moment'.[7] She said she didn't say much because the incident took her by surprise and she was frightened by the way the man was dressed and that she did not know him or what he was going to do. Although she didn't recognise the man, she recognised the voice as the one that had been yelling out to her from the park.[8]
[7] ts 19.
[8] ts 18 - 19.
GL said a couple of days after she last heard the voice, a homemade bouquet of flowers with a note was left for her at the door of her mother's salon.[9] On one side the note was endorsed with two love hearts, 'Ms (GL)' and 'Open me!'. On the other side were the words 'Will you please fuck me? Your beautiful baby. Bandana Boy'. This was picked up by an employee at the salon, Pauline Oxford, who sent a photo of the note and flowers to GL. GL believed it was from the person who had been yelling out to her. It made her feel sick. The reference to 'baby' made her very scared because she did not know if it related to her or her baby daughter. When asked about the name 'Bandana Boy' GL said it had no significance to her. Her mother put the flowers and the accompanying note into a plastic bag and took it to the local police station.[10]
[9] ts 13.
[10] ts 20 - 21.
In cross-examination GL was asked about the number of incidents and said '[a]bout three times. That was the person calling out, but then he came up to me, so that would be probably four. That would be the fourth time'.[11] She was then asked about the timing of the incidents in relation to the days she attended the salon:
And how, so you were working, I think you said, about two or you were in at the salon, maybe, two days a week at that stage?---Yes, yes. Just helping out. Not - I wasn't getting paid for it.
And so over the two to three weeks that you were in two times a week, it didn't happen every time you were at work, is that correct?---No, I wasn't in every Monday and Thursday. It was sometimes I would come on a Monday, sometimes I would come on a Thursday. So I can't, I don't know how many times I went into work in that time.
Would it be fair to say that you couldn't say for sure that it was every time you were in at the salon?---Yes, I wouldn't say it was every time, but, yes. It was four times, essentially. [12]
[11] ts 24.
[12] ts 25.
Regarding the incident where the man wearing dark clothing walked past her outside the salon, GL said that although she assumed the man knew her because he knew her name, it was a frightening experience because of his clothing, the time of night and the fact that there was 'very, very, very seldomly anyone ever out' in Harvey at night‑time. She said the incident was a 'shock and a scare'.[13]
[13] ts 29/3/21, 26.
With regards to the flowers, GL said that this made her realise that all the incidents of a man calling out involved the same person, and that he had been hiding in the dark on each occasion. The note scared and disgusted her. Had she seen the man again she would have told him that she did not like what he was doing, and she would have asked him to stop. She said she did not see the man again because she immediately reported the matter to the police after the flowers were left at the salon.[14]
[14] ts 29/3/21, 27 - 28.
In re-examination it was clarified that she did not hear the male voice every time she went to work in the relevant two to three‑week period. Rather, over that two to three‑week period there were four incidents involving the same male voice.[15]

Pauline Frances Oxford

[15] ts 29/3/21, 28.

Ms Oxford gave evidence that she was working at the hair salon in Harvey at the time of the offences. She had worked as a hairdresser at the salon for 31 years. By reference to photographs she identified the location of the salon and its entry and exit points.
Ms Oxford referred to a day in August 2019 when she was working alone at the salon. She arrived at the salon just before 9.00 am and upon retrieving her keys from her bag she found a bunch of flowers on the door handle. Attached to the flowers was a note which had the first name of GL written on it. Ms Oxford opened the salon door and took the flowers inside.[16]
[16] ts 29/3/21, 31.
As soon as she went inside, Ms Oxford took a photograph of the flowers with her phone and sent the photograph to GL. The photograph became an exhibit in the trial and Ms Oxford confirmed that she had taken the photograph on Tuesday, 6 August 2019.[17]

Esterina Italiano

[17] Exhibit 1.3; ts 29/3/21, 32.

Ms Italiano is the owner of another hair salon which, like GL's mother's salon, is on Uduc Road in Harvey. Ms Italiano's salon is directly across the road from a Puma service station.
Ms Italiano said that one afternoon in August 2019, at approximately 5.30 pm after her staff had gone home and she had just locked the salon door, the appellant knocked on the door and asked for a haircut. Although she told him that she had just finished for the day, she reluctantly decided to let him in.[18]
[18] ts 29/3/21, 33.
The appellant sat in the barber’s chair and had a conversation with Ms Italiano as she cut his hair. At one stage he mentioned that he wanted to be a tattoo artist and he asked Ms Italiano if she wanted to see the tattoo he had given himself. The tattoo was on his upper thigh so he had to pull his jeans down to show it to her. Ms Italiano said she didn't realise this when he initially asked her, however he did promptly pull his jeans back up afterwards.[19]
[19] ts 29/3/21, 34.
The appellant paid for his haircut at the counter and left the salon. Ms Italiano noticed that the appellant had left his black and white bandana on the barber's table. He had slipped it off his head before his hair cut. Ms Italiano placed it in the bin as she thought he probably would not be back to retrieve it.[20]
[20] ts 29/3/21, 35.
The following day a police constable came to the salon to ask some questions. Ms Italiano told the officer about the bandana and it was retrieved from the bin at the back of the salon. Ms Italiano identified the bandana in a photograph which became an exhibit in the trial.[21]
[21] Exhibit 2: ts 29/3/21, 35.
During cross-examination Ms Italiano said that the appellant showing her his tattoo was 'a bit inappropriate' and that it had made her feel 'uncomfortable' and 'very wary'. At that point, since she was at the salon alone, she decided to open the salon door a little wider as it was near a local supermarket.[22]

[22] ts 29/3/21, 35 - 36.

KP was the complainant in respect of the first charge. At the time of the offences, she was employed as a console operator at the Puma service station on Uduc Road in Harvey. Her job required her to serve customers by dispensing fuel and taking payment. She would also perform general duties such as cleaning and managing stock. Her shifts were 1.30 pm to 10.15 pm on Sundays, Mondays and Wednesdays.
KP said that on the evening of Wednesday, 26 July 2019 she was working at the service station alone when the appellant attended.[23] She remembered that it was about 9.00 pm because she was cleaning the coffee machine which she always did at that time. She said the appellant looked unusual because he was not wearing a shirt and it was very cold outside. She said that he appeared agitated, energetic and rambling. He was also limping and in apparent pain.
[23] ts 30/3/21, 45.
The first thing the appellant said to KP was 'you will have to excuse me, I'm stoned'. This immediately made KP feel 'on guard'.[24] She said she felt defensive because she was working alone at night‑time and she did not know what the appellant was going to do. The appellant then said that he had just come from Harvey Hospital and that they had given him the wrong pain medication for his leg.
[24] ts 30/3/21, 46.
The appellant tried to buy several food items but his bank card was declined.[25] He searched for change by thrusting his hands deeply into his pockets, to the point where he became exposed due to his pants being pulled downwards and him not wearing any underwear. KP said that she looked away from the appellant and offered to put aside the items he wanted to purchase in the hope he would leave and come back with the money.
[25] ts 30/3/21, 43.
The appellant then asked KP if her hair colour was natural. He also said that she was 'the prettiest girl working at the servo'.[26] She said that this made her feel uncomfortable. She laughed it off and avoided any further discussion on her appearance. The appellant also mentioned that KP had served him at the service station once before. She remembered that the previous time was very brief, approximately 30 seconds, and that she had complimented the appellant on his sweater. KP said the appellant's behaviour on this occasion was very different to the previous time. The appellant stayed for around 10 minutes before leaving and did not return that night.
[26] ts 30/3/21, 43.
There was a second occasion when KP was at the service station working alone and the appellant attended. This time it was on a Monday and it was earlier in the evening. The appellant walked around out the front of the service station blowing kisses at KP and making sure she knew that he was there. Eventually, he came in. He leaned over the counter and KP felt that he was in her personal space. He asked her if she had a boyfriend to which she replied that she had a husband. She hoped that by telling him that she was married he would not pursue her. The appellant asked why she wasn't wearing a ring and she said that she was not allowed to wear jewellery at work. The appellant then said, 'I wish you weren't allowed to wear clothes'. This made KP feel 'embarrassed, uncomfortable [and] awkward'. She said that the appellant's conversations with her were 'developing or escalating to a place where she felt increasingly uncomfortable' and she did not want to engage with him in any way other than what was essential to perform her role.[27]
[27] ts 30/3/21, 49.
This second interaction with the appellant lasted two or three minutes. KP said that as the appellant was exiting the store, he yelled out a comment about her appearance followed by 'you're beautiful. … don't let anyone tell you any different', or words to that effect.[28]
[28] ts 30/3/21, 49 ‑ 50.
Around 9.00 pm that same evening KP went out to the service station forecourt to collect the buckets and jugs of water. She could hear the appellant in the carpark. She thought he was sitting on the curb. She completed her tasks very quickly so she could return to the safety of the store. There was no interaction between her and the appellant on that occasion.[29]
[29] ts 30/3/21, 50.

KP saw the appellant again on what she thinks was her next shift at the service station. She was fairly sure that all the incidents were quite close together. On this occasion, while she was out the back, the appellant came in and called out her name. She recognised his voice immediately. She went to the counter and the appellant presented her with some flowers that he had picked and said, 'can you ask your husband if I can be your toy boy'. KP said she felt 'cornered' and 'suffocated' and she 'just didn't want to see him anymore'.[30] She immediately took a photo of the flowers and sent it to her husband.
[30] ts 30/3/21, 51.
After the appellant left, KP said that she could hear him yelling from the front of the service station. He had had an altercation with a male who he accused of stealing his jacket. After dragging the man into the service station, KP told the appellant that she was calling the police. He went outside and KP locked the door. The police attended within a short time and moved the appellant on.[31]
[31] ts 30/3/21, 52 ‑ 53.
The appellant returned to the service station later that evening at around 9.00 pm. KP said she heard a knock on the window and turned around to see the appellant standing at the front of the service station. He was blowing her kisses and saying something but she could not hear what it was. The door was locked. KP did not unlock the door because she felt scared.[32]
[32] ts 30/3/21, 53.
CCTV from the last incident was tendered at the trial and KP confirmed the date stamp identified that the incident occurred on 5 August 2019.[33]

David Richard Herrinton

[33] ts 30/3/21, 58.

As at 7 August 2019, Senior Constable Herrinton was stationed at Harvey Police Station. On that date he received a complaint regarding an unknown male from GL, who he knew to be a hairdresser employed at a local hair salon.[34]
[34] ts 30/3/21, 63.
Senior Constable Herrinton said that GL showed him a photograph of a bunch of flowers with a note which she said had been left at her workplace the morning before, being 6 August 2019. GL also provided him with the note which was addressed to her. An investigation was commenced and GL made a detailed statement.[35]
[35] ts 30/3/21, 63 ‑ 64.
Later that week Senior Constable Herrinton received a complaint from KP. She named the appellant as being a person who was causing her some stress. KP told him that she had received a bunch of flowers from the appellant. She directed him to the rubbish bin at the back of the Puma service station where he saw a bunch of wilting flowers. He took photographs of the flowers and commenced an investigation.[36]
[36] ts 30/3/21, 64.
On 14 August 2019 Senior Constable Herrinton attended Snell's Park, which is diagonally opposite GL's mother's salon. He observed flowers there which were similar to the flowers in the bunches shown to him by both GL and KP. He took photographs of the flowers in the park and of the nearby businesses, including both salons and the Puma service station. These photographs, along with those he took of the bunch of flowers at the Puma service station, became exhibits at the trial.[37]
[37] ts 30/3/21, 66.
Senior Constable Herrinton said that he had cause to speak to the appellant and at around 1.00 pm on 23 September 2019 the appellant attended the police station and participated in a video record of interview. The record of interview was played at the trial and became an exhibit in the appeal.[38]
[38] Exhibit 1.

The appellant's police interview

In the police interview the appellant said that he was surprised to hear that he was being questioned about his interactions with KP. He referred to her as a friend. He said he might have gone too far, but he just wanted to make her laugh. He admitted giving her a bunch of flowers that he had picked from the park by the railway line in Harvey. He also admitted complimenting her on aspects of her appearance and telling her that she was the prettiest girl working at the service station. He said that if he had known that she was uncomfortable he would have stopped immediately. He denied making the comment about wishing that she was not allowed to wear clothes at work. He said the Puma service station is the only place open late in the evening and that he walks the streets. He said the timing of KP's shifts at the service station coincided with the times he walks around.
The appellant was asked about his visit to Ms Italiano's. He said that he went there and that it is possible he might have pulled down his pants to show the tattoo on his thigh. He was shown the bandana recovered from the rubbish bin behind the salon and admitted that it was his, although he wasn't sure he had left it at the salon because he has quite a few bandanas and he carries them around everywhere.
When asked if he had a nickname relating to bandanas, the appellant said that it was 'Bandana Boy'. At that point he said he wrote a note in relation to GL and, as he did with KP, he had picked flowers for her from the park. When shown the note GP received, he admitted it was the note he had written. He laughed as he read from the note 'will you please fuck me, your beautiful baby, Bandana Boy' and as he was shown a photo of the flowers. He said he folded up the note and left it with the flowers at the door.
The appellant was told that GP had reported someone calling out to her from the park. He admitted that he called out to her by saying 'hey (G), how are you going'. He said he does not know her, but he knows of her and he thought everyone in town said hello to each other. He knew her full name because 'everyone knows everyone in this town'. It was put to the appellant that GL was concerned because she kept hearing her name being called out from the park. The appellant said he only called out to GL once from a corner chair at the park and that at the time he was sitting with a female friend. He appeared to deny the suggestion that he was not visible to GL when calling out to her.
The incident where he appeared out of the darkness and walked past the complainant on the footpath was put to the appellant. He denied that GL had been frightened by that interaction saying that she looked 'pretty chirpy'. He denied that he was wearing black pants and a black hoodie, saying that that 'sounds pretty scary' and that he walks around in high‑vis clothing as he goes to work each day. Senior Constable Herrinton drew the appellant's attention to the appellant's current clothing, noting that he was wearing black jeans and a black shirt. The appellant responded saying that he was not working that day because he had a broken leg. Toward the conclusion of the interview, the appellant confirmed that the day he walked past GL on the footpath was 5 August 2019 and that it was the following day, 6 August 2019, when he left the flowers and note for her at the salon.[39]
[39] Exhibit 1.

Defence Evidence

The appellant elected not give or adduce any evidence at the trial.

Magistrate's reasons

In oral reasons the Magistrate referred to the definitions of 'pursue' and 'intimidate' as set out in s 338D(1) of the Criminal Code. She acknowledged that the definitions are not exclusive by stating that '[t]here may be other ways in which a person might intimidate or might pursue a person that are not set out in the legislative definition'.[40]
[40] ts 1/4/21, 4.
Her Honour said that at the time of drafting the legislation, the legislature intended that the section would 'capture behaviour that amounted to what could be considered a course of conduct, a series of acts or a repetition of behaviour'. Having listened to the appellant's record of interview, she considered that there were only two issues for her to decide:

The first is whether the (appellant) legally (sic, illegally) pursued each of the women. And secondly, if I am satisfied of that, whether the reasonable, fair-minded person would consider that the behaviour displayed by (the appellant) was intimidating. Section 338E, subsection (2) contains, within it, an objective test. There is no doubt that each of the women were (sic, was) intimidated by the behaviour displayed by the (appellant). However, that's not the end of it.
The prosecution must prove, beyond reasonable doubt, that a reasonable, fair-minded observer of the same age, background and intellectual function as the (appellant), familiar with all of the relevant circumstances known to (the appellant) at the relevant time would consider that the behaviour displayed by him was intimidating. [41]
[41] ts 1/4/21, 5.

Her Honour identified that there had been three occasions where the appellant had interacted with KP at work at the Puma service station. She made particular reference to the appellant's comment to KP about her not wearing any clothes. She described that comment as crude and offensive. However, on the whole of the evidence presented in the trial she was not satisfied that the behaviour displayed by the appellant amounted to a course of conduct that could be considered a pursuit of KP.[42]
[42] ts 1/4/21, 5.
Her Honour's reasons for that finding were that the appellant was living on the streets in Harvey at the time and the Puma service station was the only place open late at night. He attended the service station to buy food and drink. KP had had previous interactions with the appellant, but the three occasions identified were the only times he displayed behaviour that concerned her. On other occasions, the appellant had attended to purchase food or drink or to chat to people outside the service station. Her Honour considered that the only time when the appellant attended specifically to see KP was when he presented her with the bunch of flowers.[43]
As regards the appellant's conduct towards GL, her Honour said that the complainant was a compelling witness who gave clear and concise evidence about the events that had occurred, despite the lapse in time. Her Honour noted that the appellant's conduct toward GL commenced after the she returned to work following the birth of her baby daughter. Her Honour said GL gave evidence of 'three separate occasions in early August of 2019, she was leaving her mother's salon … and was approaching her car to place various items inside. On each occasion it was dark, it being winter at the time'.[44]
[44] ts 1/4/21, 6.
The magistrate summarised the three occasions as follows. The first involved someone singing GL's name and that the sound was coming from the direction of the park directly across the road. GL looked up but couldn't see anyone there. The second occasion was said to be a few days later. GL couldn't recall exactly when it was but said that it was another time when she was leaving the salon after having helped her mother. It was dark and she was approaching her car parked directly outside the salon. The same male voice called out to her from the park. She looked up but could not see anyone. GL described a further time that this occurred but 'could not recall exactly when it was, but all three incidents of name calling happened within a short period of time'.[45] She was approaching her car at the front of the salon when she heard the same male voice coming from the park.[46]
[45] ts 1/4/21, 6, 7.
[46] ts 1/4/21, 6, 7.
Her Honour then summarised a further occasion occurring at around the same time of night when GL was leaving the salon to put items in her car. As she stepped out of the salon door a man dressed in a black hoodie and black pants walked past her on the footpath. As he walked past her he greeted her by name, and she recognised his voice as being the same one that had been calling out to her from the park. GL told her mother about the incident and mentioned that maybe it was someone she knew from school.[47]
[47] ts 1/4/21, 7.
Her Honour then said that a couple of days later GL was contacted by her mother's employee, Ms Oxford, who had sent the complainant a text message with a photograph of a bunch of flowers. Her Honour referred to the evidence of Ms Oxford and how she had explained that she found the bunch of flowers with a note when she arrived at the salon. Although GL was concerned that the words 'Your beautiful baby' in the note may have been a reference to her infant daughter, her Honour considered, having heard all the evidence, that the note contained a grammatical error, and that it was in fact referring to the complainant.[48]
[48] i.e. ‘Your beautiful baby’ should have read ‘You’re beautiful baby’: ts 1/4/21, 7.
Her Honour noted that the appellant accepted in his record of interview that he wrote the note and left it for GL with a bunch of handpicked flowers. He also accepted that he called out to GL although he had claimed it was only once. He denied walking past GL on the footpath when she was exiting the salon at night, informing the police that he wears high‑vis clothing, not black clothing.[49]
[49] ts 1/42/1, 8.
Her Honour accepted, in its entirety, the evidence of GL. She acknowledged that GL did not see the face of the man who walked past her and that she only heard the voice calling out to her from a distance. However, her Honour was satisfied, based on GL's evidence, that each incident involved the same person, that is, the appellant.[50]
[50] ts 1/4/21, 8.
As to the element of pursuit, her Honour said that '[a]lthough each of the acts occurred over a very short period of time, only a matter of days being from 2 through to 6 August 2019, I consider that it was a course of conduct or a series of acts that satisfies the element of pursuit'.[51]
[51] ts 1/4/21, 8.
Her Honour said the complainant was 'most definitely intimidated' by the appellant's behaviour toward her. As to whether the appellant's behaviour toward the complainant would be viewed by a reasonable, fair-minded person as intimidating, her Honour said:[52]
Reflecting upon the behaviour of the (appellant) towards (GL), vis-à-vis (KP), there is a marked difference. In the interactions with (KP), the accused clearly identified himself on each occasion and engaged in conversations with her at the Puma service station. When he delivered the flowers, he did not attach a note with an offensive and derogatory reference about intercourse. There was one occasion in which (the appellant) made a remark to (KP) that could be considered to be offensive, but overall, the behaviour towards (KP) was less creepy.
Creepy, being the word used by (GL) in her evidence. It is true that different members of the community have different moral compasses. What might be considered intimidating by one person might not necessarily be considered so by another. This is demonstrated in the trial by the evidence of Esther Italiano who considered that the (appellant's) behaviour in her salon, by showing her his upper thigh, was a bit strange and a bit inappropriate yet she was not as affected by his behaviour as (KP) or (GL).
However, when considering the series of acts displayed towards (GL), I am of the view that a fair-minded person of the same age, background and intellectual function as (the appellant) would consider that concealing oneself in a park across the road, calling out to (GL) in the dark and failing to reveal himself on three separate occasions, then surreptitiously walking past her in the dark and making a further comment culminating in leaving a bunch of handpicked flowers at her workplace with a sexually suggestive note, yet still concealing his identity by signing the note off with the words “bandana boy” would arrive at the decision that this series of acts was intimidating.
[52] ts 1/4/21, 8 ‑ 9.
Being satisfied that the elements of the second charge were proven, her Honour found the appellant guilty of that charge.

Grounds of appeal

The appellant's appeal notice contains three grounds of appeal:
Ground 1
The learned Magistrate erred in fact and law by:
a)Convicting the appellant in the absence of evidence about the complainant's characteristics (e.g. age). This was relevant to whether the appellant's conduct was objectively likely to intimidate; and/or
b)Applying the wrong test for the purposes of s 338E(2) of the Criminal Code1913 (WA) 'Code' by referencing whether the conduct was objectively likely to intimidate in terms of an accused person's personal characteristics (T 4 ‑ 5 and 8 ‑ 9 on 1 April 2021); and/or
c)Analysing whether the conduct was objectively likely to intimidate by considering what had happened to a different complainant (Pratt) in another charge MC HV 471/2019 (T 8 on 1 April 2021).
Ground 2
The learned Magistrate erred in fact and law and/or occasioned a miscarriage of justice by:
a)Finding that the appellant committed five (5) incidents that comprised the pursuit; and
b)Where the Prosecution Notice MC HV 472/2019 alleged a date period during which the complainant could only have committed two (2) incidents.
Ground 3
The learned Magistrate erred in law and/or occasioned a miscarriage of justice by breaching the rules of procedural fairness by considering the evidence of the complainant Pratt in the trial of MC HV 472/2019 when:
a)There was no indication by the Prosecution that it was going to argue the cross admissibility of the two charges MC HV 471 ‑ 472/2019; and/or
b)The learned Magistrate did not give the appellant notice of her intention to consider the complainant Pratt's evidence in the trial of MC HV 472/2019 and/or
c)Even where MC HV 471 ‑ 472/2019 were joined on the one prosecution notice, that does not lead to the conclusion that the evidence of one charge was admissible on the evidence of the other.

Ground 1 - Did the Magistrate use the wrong test?

The appellant submits that the learned Magistrate assessed whether the conduct could reasonably be expected to intimidate by reference to the personal characteristics of the appellant. This is said to be an error because the correct test is an objective one, that is, whether an ordinary person in the position of the complainant might be expected to be intimidated. The appellant also submits that, in the absence of evidence of GL's personal characteristics it is not open to infer that the objective test was met. Finally, it is submitted that the Magistrate incorrectly assessed the nature of the appellants' conduct as regards GL by comparing it to that as regards KP.
Section 338E of the Criminal Code relevantly provides:
(1) A person who pursues another person with intent to intimidate that person or a third person, is guilty of a crime and is liable -
(a) where the offence is committed in circumstances of aggravation, to imprisonment for 8 years; and
(b)in any other case, to imprisonment for 3 years.
(2) A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.
Section 338D of the Criminal Code defines the word 'pursue' as including:
(a) to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
(b)to repeatedly follow the person;
(c) to repeatedly cause the person to receive unsolicited items;
(d) to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;
(e) whether or not repeatedly, to do any of the foregoing in breach of a restraining order or bail condition.
This definition is an inclusive definition, that is, it expands upon the ordinary meaning of the word. The ordinary meaning of 'pursue' includes 'engaging in a course of conduct to achieve some aim - including relevantly to establish or maintain some personal or social connection'.[53]
[53] Tonkin v Macintosh [2021] WASC 118, [17].
Section 338D of the Criminal Code defines the word 'intimidate' when used in relation to a person as including:
(a)to cause physical or mental harm to the person;
(b)to cause apprehension or fear in the person;
(c)to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
(d)to compel the person to do an act that the person is lawfully entitled to abstain from doing.

In Hellings v The Queen [2003] WASCA 209, the Court of Appeal considered the differences between the indictable offence of stalking contained in s 338E(1) with the summary offence contained in s 338E(2):
As to the statutory alternative of conviction of the simple offence of stalking, it will have been noticed when we referred to the way in which these offences are defined by the Code, s 338E(1) and (2), that the elements of the offences are distinctly different. The concept of a person pursuing another is the common element. The more serious indictable offence adds the element of an intent to intimidate, but conviction of that offence does not depend upon proof that the victim was in fact intimidated. On the other hand, the simple offence of stalking, which could not therefore be charged on indictment and is only available as a latent alternative on an indictment for the indictable offence, does not require proof of an intent to intimidate, but does require that the conduct of the offender by way of pursuing the complainant is of a kind that not only could reasonably be expected to intimidate another, but that it does in fact do so.
We take it then that this is the position. The more serious indictable offence of stalking is committed by pursuit with intent to intimidate, even if the victim is sufficiently strong-willed or robust in character that he or she is not intimidated, or whether or not the person is in fact intimidated. To commit the less serious simple offence there must be pursuit of a kind which does in fact intimidate the victim. However, the intimidatory quality of the pursuit is not an entirely subjective matter dependent only upon whether the particular victim is intimidated in any manner defined by the Code, but the quality of the pursuit must be such that, objectively, an ordinary person in the position of the complainant might reasonably be expected by the jury to be intimidated. (emphasis added)[54]
[54] [12] ‑ [13]. See also Conomy v Maden [2016] WASCA 30 at [11].
In Tonkin v Macintosh [2021] WASC 118, Tottle J considered the test referred to Hellings and said:
The objective element embodied by the words 'could reasonably be expected to intimidate' mean an accused's conduct is to be evaluated without considering facts personal to the appellant, which were not known by the complainant, and would not have been known by the 'ordinary person'. It is sufficient to assess the conduct constituting the pursuit and make an evaluative judgment as to whether that conduct could have reasonably been expected to intimidate the 'ordinary person'.[55]
[55] [22]. Adopted with a slight modification of no present significance by K Martin J in Jolley v Truong [2021] WASC 194.
The appellant relies on the fact that in two passages in her reasons the Magistrate refers to the objective test by reference to an ordinary person having the same personal characteristics as the appellant. Those passages are referenced at [45] and [55]. In them, the Magistrate considers whether an ordinary person of the same age, background and intellectual function as the appellant would consider the conduct to be intimidating. The correct question was whether an ordinary person in the position of the relevant complainant might reasonably be expected to be intimidated by the conduct.
What is apparent from the passages is that the Magistrate was conscious that it was necessary to prove both that the particular complainant was intimidated and that the conduct in question was objectively reasonably expected to have this affect. It was not necessary to incorporate into the objective test any personal characteristics of the appellant. However, the Magistrate did not substitute a subjective test as to the appellants' actual belief.
What Her Honour did was to predicate an ordinary person, albeit one of the same age, background and intellectual function as the appellant, and ask whether such a person would consider the conduct to be intimidating. There is no suggestion that a person with such characteristics would be more sensitive than other ordinary persons. This, therefore, remained an objective test, though one that was likely to be more difficult for the prosecution to meet than that referred to in Hellings and Tonkin. Furthermore, an ordinary person who met the criteria referred to by the Magistrate would form part of the larger class of ordinary persons that is contemplated by the objective test. Thus, proof that an ordinary person of the same age, background and intellectual function as the appellant would consider the conduct to be intimidating would necessarily mean that ordinary persons generally would be reasonably expected to find the conduct intimidating. That conclusion is reinforced by the fact that the nature of the conduct, when objectively assessed, was plainly such as would be reasonably expected to cause mental harm, apprehension or fear to the complainant.
In these circumstances any error on the part of the Magistrate in expressing the objective test was immaterial to the outcome. By narrowing the class of ordinary persons, the Magistrate formulated the test in a way that unduly favoured the appellant. The approach taken by the Magistrate did not result in any lost opportunity for the appellant to be acquitted of the second charge.
In the alternative, if there was a material error by the Magistrate, no substantial miscarriage of justice occurred.[56] While there is no single universally applicable description of what constitutes 'no substantial miscarriage of justice', an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt.[57] In addressing that question, it is necessary to consider the nature and effect of the error.[58] The appellate court in such a case is not predicting the outcome of a hypothetical error‑free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.[59] Some errors may prevent the appeal court making its own assessment of the evidence because there has been a significant denial of procedural fairness at the trial.[60]
[56] Criminal Appeals Act 2004 (WA), s. 14(2).
[57] Orreal v The Queen [2021] HCA 44 at [41]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [44] ‑ [45]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at 104 [29]; Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62 at 69 ‑ 70 [12] - [13]; Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 at 206 ‑ 207 [38]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at 951 [59], 955 ‑ 956 [84], 965 [131] ‑ [132].
[58] Kalbasiv Western Australia [2018] HCA 7; (2018) 264 CLR 62 at 71 [15]; Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 at 206-207 [38]- [39]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at 951-952 [60], 965-966 [133].
[59] Kalbasi at 70 [12].
[60] Weiss at 317 [44] - [45].
In this case the error did not involve a denial of procedural fairness and does not prevent an assessment of the evidence by this court. The evidence that the conduct of the appellant as regards GL was such as would be reasonably expected to intimidate an ordinary person was overwhelming. I am satisfied that the guilt of the appellant on charge 2 was proved beyond reasonable doubt on the evidence adduced at the trial. Thus, there was no substantial miscarriage of justice in any event.
As to the submission that it was not open to convict without evidence of the GL's personal characteristics, including her age, the basis for this assertion is difficult to understand. The claim seems to be that without evidence of the personal characteristics of the complainant the Magistrate could not decide whether the conduct was objectively intimidating for someone like her. Whilst the view has been expressed that when assessing the objective component of the offence it is relevant to take into account the personal characteristics of the complainant[61], that is not to say that evidence of precise age (or some other personal characteristic) is necessary. The personal characteristics that may be relevant, such as the gender or whether the complainant is a child, adult or elderly person are likely to evident.
[61] Jolley v Truong [2021] WASC 194 at [192].
In this case, the Magistrate had the benefit of seeing and hearing from GL as a witness. Whilst GL did not state her age, she did give some details as to her education and work history. She said that after leaving school she trained to be a hairdresser and had worked at her mother's salon for about eight years. She had then gone on maternity leave two years before the trial. She was the mother of a young child at the time of the incidents. The suggestion that this was not sufficient, and that the Magistrate could not convict without, for example, evidence of GL's precise age is without merit.
The third component of this ground asserts that the Magistrate was wrong to use the appellant’s conduct in respect of KP in determining whether the conduct in respect of GL was objectively likely to be intimidating. This assertion relies on the passage referred to at [55]. When seen in context it clear that in this passage the Magistrate was explaining why she had reached a different conclusion on charge 2 than on charge 1. She did not suggest that the appellant was guilty on charge 2 simply because the conduct was more serious than that on charge 1. Rather, Her Honour said that the conduct on the two charges was different and then went on to consider both whether GL was intimidated and whether the conduct was such as could reasonably be expected to intimidate.
Since the component of this ground dealing with how the Magistrate formulated the objective test has some merit and deserved detailed consideration, leave to appeal on this ground should be granted. However, the ground cannot succeed, for the reasons I have given.

Ground 2 - Did the Magistrate err by taking into account incidents outside the charge period?

The appellant submits that Magistrate was wrong to conclude that the five incidents referred to by GL occurred between the period specified in the charge, namely 2 to 6 August 2019. The appellant says that GL gave evidence that the incidents occurred over a two to three‑week period and that she only worked on Mondays or Thursdays, but not both in any one week. If the flower incident occurred on 6 August 2019, which was a Tuesday, the only Monday or Thursday that occurred in the charge period was Monday 5 August 2019. By this process of reasoning the appellant suggests that the charge period could only have included one incident other than the delivery of the flowers.
This is not a matter that was raised at the trial. The trial was opened on the basis that the charge related to the whole course of conduct and was defended on that basis. It was not put to GL in cross‑examination that the earlier calling-out incidents had occurred before 2 August 2019. Nor was there any objection to the evidence of the earlier calling‑out incidents on the basis that they fell outside the charge period.
Clause 5, Schedule 1 of the Criminal Procedure Act 2004 (WA) relevantly provides:
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
(a)describe the offence with reasonable clarity; and
(b)identify the written law and the provision of it that creates the offence; and
(c)identify with reasonable clarity -
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed;…
Section 178(3) of the Criminal Procedure Act provides that where a court document, such as a prosecution notice, is defective in substance or form, the court, on an application by a party or on its own initiative, must order that the document be corrected if the defect is not material to the merits of the case and may order that the document be corrected in any other case.
An amendment to correct a defect in a prosecution notice is not material to the merits of the case if the proposed amendment does not have a bearing on the evidence, the particulars of the charge or the identity of the offender or does not affect the evidence to be led by the prosecution or that may be led by the defence.[62]
[62] Cowie v Wood [2021] WASC 341, [63].
The date on which an offence is said to have occurred is not usually an element of the offence, rather it is a particular. Particulars serve the purpose of ensuring that an accused person is aware of the act and occasion which the prosecution relies on as being the commission of the offence alleged. In assessing whether particulars are adequate, the relevant question is whether the accused person has been able to identify the act, omission and circumstances whish the prosecution alleges amount to the offence charged.[63]
[63] Cotter v The State of Western Australia [2011] WASCA 202, [30] ‑ [31].
The general rule is that a date specified in a charge is not a material matter that has to be specifically proved unless it is an essential part of the offence charged. That general principle may be overridden by considerations of fairness in a particular case, if the trial has been conducted on the basis that the offence occurred on a particular date and the accused has prepared his defence on that basis.[64] Examples where fairness may require a strict adherence to the pleaded dates are where the accused has relied on alibi evidence on the basis of the pleaded date or has not had the opportunity to obtain other potentially relevant evidence due to a belief that the conduct was limited to the pleaded date.
[64] The Queen v Dossi (1918) 13 Cr App R 158, 159 ‑ 160 (Aitkin J); CB v The State of Western Australia [2006] WASCA 227 and XHA v The State of Western Australia [2022] WASCA 8, [129].
In the present case the prosecution case was always that charge 2 encompassed all of the incidents. The appellant's case at trial was run on the basis that the offence did encompass all of those events. The only date that was known with certainty was the receipt of the flowers and the note on 6 August 2019. The evidence of GL was that the other incidents had occurred before that but she could not be certain of the dates. The argument that the appellant now raises as to the timing of the incidents was not raised at the trial and was not tested in evidence. Had it been raised at the trial there can be no doubt that an amendment to the charge would have been allowed. An amendment would simply have ensured that the charge aligned with the appellant's understanding of the nature of the offence alleged.
No issue of identity arose at the trial and no alibi evidence was led. This is not a case where the dates pleaded in the prosecution notice were critical to the offence charged. Nor was there any unfairness to the appellant in the Magistrate taking into account all five incidents in determining whether the offence was proven. Nor, in the circumstances of this case, does it matter that the charge was not amended at the time and that the limitation period for the offence has now expired. Any amendment would not have altered the nature of the offence charged, that is, it would not have constituted a new and different charge to that contained in the prosecution notice.[65]
[65] Starling v Ostrowski [2001] WASCA 74, [21].
Although I would grant leave in respect of this ground, it cannot succeed.

Ground 3 - Did the Magistrate err by treating the evidence on count 1 as admissible on count 2?

The appellant submits that the Magistrate incorrectly used the evidence in respect of KP in determining whether the charge relating to GL was proved. The basis for this submission is the passage in the Magistrate's reasons that is reproduced at [55]. The appellant says that, in effect, what the Magistrate did was compare the experiences of KP and GL in deciding whether the conduct was intimidating. It is submitted that there was no application by the prosecution for the evidence on the two counts to be cross‑admissible and the appellant was denied procedural fairness by not being given an opportunity to object to such use.
As I have earlier noted in respect of Ground 1, the passage in question is clearly an attempt by the Magistrate to explain why she had reached different conclusions on counts 1 and 2. It is entirely understandable why she might have thought that those concerned with the matter, including the appellant and both complainants, would want such an explanation. That exercise of comparing and contrasting the two matters did not, however, involve treating the evidence of charge 1 as admissible in respect of charge 2.
There is no suggestion in the reasons that the Magistrate treated the evidence relating to KP as admissible in respect of charge 2, either as propensity evidence or in some other way. Indeed, she specifically noted that the two matters were different. Her Honours conclusions on charge 2 were based on her assessment of the evidence of GL, and, in particular, whether it was reasonable to expect that GL would be intimidated and whether she was in fact intimidated by the conduct of the appellant.
There is no merit in this ground and leave in respect of it should be refused.

Conclusion and Orders

For the reasons I have given, leave will be granted in respect of grounds 1 and 2 and refused in respect of ground 3. The appeal will be dismissed.
The orders are:
1.Extension of time to appeal granted;
2.Leave to appeal on grounds 1 and 2 granted;
3.Leave to appeal on ground 3 refused;
4.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
17 FEBRUARY 2022