Tahlia Fenech v Shankar Ramalingam
[2022] ACTMC 29
•6 December 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Tahlia Fenech v Shankar Ramalingam |
| Citation: | [2022] ACTMC 29 |
| Hearing Date(s): | 13 September 2022 |
| DecisionDate: | 6 December 2022 |
| Before: | Chief Magistrate Walker |
| Decision: | See [67]–[73] |
| Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – Stalking – Recklessness |
| Legislation Cited: | Crimes Act 1900 (ACT) (‘the Act’), s 35 |
| Cases Cited: | Director of Public Prosecutions v Walker [2011] ACTCA 1 |
| Parties: | ACT Director of Public Prosecutions ( Prosecution) |
| Representation: | Solicitors |
| File Number(s): | CC 10556 of 2021 |
CHIEF MAGISTRATE WALKER:
1․The defendant, Mr Shankar Ramalingam, is charged with one count of stalking contrary to s 35 of the Crimes Act 1900 (ACT) (‘the Act’). It is an offence which on conviction carries a maximum penxalty of two years imprisonment. The offence is alleged to have occurred over a period between 17 and 23 October 2021.
2․The hearing ran over four days in September and October. Mr Ramalingam was unrepresented. I commend the prosecutor for the careful approach he took to presenting the case, the practical assistance he provided to Mr Ramalingam and the solicitous manner in which he did so.
3․The factual circumstances are largely undisputed. The defendant is father to Mr Vinoshan Shankar, his adult son. They have been estranged for a number of years. In October 2021, Mr Shankar had day to day care of the erstwhile family dog, Tina. Tina suffered a concerning health episode which caused Mr Shankar to convey a message to his father, through his father’s sister, that Tina may die, and should Mr Ramalingam wish to see her, Mr Shankar was agreeable to facilitating that. Tina in fact recovered quickly from what transpired to be a passing illness. However, Mr Ramalingam remained concerned for her health and began a barrage of unwelcome attempts at contact with Mr Shankar. There is substantive concurrence about the factual circumstances.
4․What is in issue is the defendant’s state of mind in engaging in the conduct complained of. The prosecution submits that the defendant intended to harass his son by his conduct or, alternatively, was reckless as to whether his conduct would be likely to harass his son, and that this intent can be inferred from the defendant’s conduct and the circumstances in which it occurred. Mr Ramalingam asserts that at all relevant times, he merely had the welfare of Tina in his mind and that it is not open to the court to infer that he intended to harass Mr Shankar, nor that he was reckless as to the likelihood of his conduct being harassing.
(a)
5․In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offences charged beyond reasonable doubt. The defendant has no obligation to prove his innocence; if he raises an explanation consistent with his innocence, he is not required to prove it; it is for the prosecution to disprove it or demonstrate its irrelevance. In assessing the reliability or credibility of witnesses, I may take into account a range of factors including what they say, how they say it and their general impression upon me; in doing so, I may accept or reject some or all of their evidence. In assessing the evidence, I must be rational and dispassionate and may rely on common sense and experience. An inference may only be drawn if it is the only rational inference available. A defendant’s evidence is of no lesser weight simply by virtue of that person’s status as a defendant. If a defendant chooses not to give evidence in their own case, no adverse inference is to be drawn from this. If the prosecution fails to meet its high evidential burden, then the defendant must be acquitted of the charges.
The evidence
6․I will now summarise the factual circumstances. Where there is a dispute, I address within the body of this summary.
7․Mr Shankar gave evidence of past family violence by his father which had caused them to be entirely estranged since at least 2018.
8․In December 2017, Mr Shankar commenced living at an address in Coombs. He lived there with his partner, Ms Madeline Watson. As far as he knew, his father had never attended that address. His father did not know that he had, and lived with, a partner.
9․In October 2021, Mr Ramalingam and Mr Shankar’s mother were in the process of a formal marriage separation.
10․On Monday 18 October 2021, Mr Shankar took Tina to a veterinarian who expressed grave concerns for her health. Out of respect to his father’s relationship with the dog, Mr Shankar emailed his father at an old email address he had for him, stating, in part:
“In the last two weeks her condition has deteriorated quite a bit – she isn’t eating. I have taken her to the vet this morning and they are doing some more tests on her. I don’t think there is very long for her. Do you want to see her. I can drop off”.
11․There being no response within the hour, he sent a message to his father’s sister saying that Tina was dying and authorising her to give his number to his father. His father called back, hysterical and in tears, asking “What’s happening with Tina?”. Mr Shankar agreed to take Tina to Mr Ramalingam for a visit.
12․It then transpired out that the dog was not fatally unwell but had a gastrointestinal upset. She was returned to Mr Shankar’s care.
13․Mr Ramalingam attended the veterinary clinic treating Tina after she had been released to Mr Shankar.
14․Mr Ramalingam called a second time that day demanding to see the dog; he said Mr Shankar had promised. During the conversation, Mr Ramalingam also threatened to make Mr Shankar’s mother’s life hell if he did not take the dog over. He also said:
“You wouldn’t think I’d still be scratching around and causing you grief, but here I am”.
15․Mr Shankar perceived the conversation as threatening and manipulative; he felt uncomfortable. As the dog was no longer expected to die, Mr Shankar agreed to let Mr Ramalingam see the dog, not that day but before Mr Ramalingam left for a planned overseas trip. During that conversation, Mr Ramalingam said that he intended to visit Mr Shankar’s house. Mr Shankar stated that he absolutely was not to do so.
16․Mr Ramalingam accepts that the conversation took place although he could not recollect being told not to attend Mr Shankar’s address. Mr Shankar said that to police in his first 000 call on 18 October 2021:
“I told him just not – um, I wasn’t going to let him come here … I didn’t know that he knew where I lived…”
17․He was clearly very distressed at the prospect of a visit by Mr Ramalingam. Mr Ramalingam did not deny having been told not to attend the address, rather stating that he did not recall having been told that. I find that Mr Shankar did tell his father not to come to the residence, consistent with his immediate complaint to police.
18․Later that afternoon, Mr Ramalingam arrived at the Coombs address in a red Nissan Pulsar. Mr Shankar did not understand how Mr Ramalingam knew his address. In interview, Mr Ramalingam stated that he had facilitated Mr Shankar buying the unit “off the plan” some years before and recalled it was near the Coombs shops. In combination with recognising Mr Shankar’s car, he identified Mr Shankar’s residence.
19․Mr Ramalingam knocked and then stood to the side of the door. This was repeated a number of times, the knocking becoming louder. Mr Shankar confirmed by looking from an upstairs window that it was indeed Mr Ramalingam. Mr Shankar called 000 to report Mr Ramalingam’s unwelcome attendance. Mr Shankar made a second call to 000 during which he was audibly distressed stating that his father had returned and was calling out the dog’s name. Mr Shankar provided police with details of Mr Ramalingam’s vehicle, a red Nissan registration number [redacted]. Mr Shankar saw Mr Ramalingam get back into his car and drive around briefly, before moving back to the front of the house. Mr Shankar was shocked and frightened by his father’s attendance.
20․The police attended after Mr Ramalingam had driven away from the property but stopped him. PC Grace Woodbridge served an exclusion notice on Mr Ramalingam which prohibited him from returning to the area for six hours. She confirmed in her evidence that Mr Ramalingam was clearly frustrated that he could not see the dog.
21․Mr Ramalingam accepts that he attended the property and that he was issued an exclusion notice following Mr Shankar's complaint to police about him. In an interview about 10 months later, Mr Ramalingam said that he was angry with his son for not letting him see the dog which he believed to be dying.
22․Mr Ramalingam left a voicemail message on Mr Shankar’s mobile telephone that night at 8:25pm:
“Keep on playing games with me, keep setting the police on me, you’re going to get the shock of your life”.
23․Later that night, Mr Ramalingam contacted the AFP in respect to the exclusion notice looking for confirmation as to when he could return lawfully to the property and asking for police assistance in contacting his son and accessing his dog. Mr Ramalingam said that the dog was dying and that he wanted to see the dog. I note that by this time Mr Ramalingam had been advised that the immediate concern for Tina’s health had passed.
24․On Tuesday 19 October 2021, Mr Ramalingam called Mr Shankar’s mobile phone. At 1:21 am:
“I’m on the way huh. You’ll be busy alright by the time I’m finished with you.”
25․At 2:03 am he called again, leaving no message.
26․In his police interview, Mr Ramalingam, when asking if the police had records of him attending the Coombs address on 19 October 2021, stated:
“Well I wouldn’t have let it go at that…”
27․At 1:16 pm, Mr Ramalingam responded to Mr Shankar’s email of the day before stating:
“She turned 14 only this April not 15. I used to brush her teeth every day because the vet asked me to after. This is the way you looked after her. Going to work and letting her wait on her own the whole day, not able to urinate and now get kidney disease 18 months ago. Now a heart disease. You have killed her. I would have kept her going healthy til she was 16 years old. Not only tina but what damage you have caused to the family I brought to Australia and carefully nurtured. God will not save you. God has already sent a message when wasim thajudeen’s mother and father visited us two months before he was killed. I don’t know whether you remember him playing with you in sri lanka. That is why I took you all out of that country of murderers and thugs. I was surprised that they came from sri lanka and visited us. I could not believe it. When I heard about his gruesome death only I realised why they visited us and now I have braced myself for your death. God works in mysterious ways. Actually we have no control at all over our life though we may think that we are at the wheel controlling the car. We have to just get up every day and what will happen will happen. Ps google wasim thajudeen and read all about the boy who would be on his bike and you will go and chat with him. He was really fond of you. He will be happy to see you again. It isn’t the end”.
28․At 2:30 pm, Mr Ramalingam left a message on Mr Shankar’s phone:
“You’re a bloody coward who can’t even talk over the phone, whenever those days I tried to call you also, you never took the bloody phone.’ I tried to tell you about her teeth and to brush her, you never took the phone, you call yourself a man? You’re a fucking woman”.
29․Mr Shankar and Ms Watson state that Mr Ramalingam attended the Coombs residence later that afternoon, again parking nearby, knocking on the front door and looking around.
30․Mr Ramalingam left a voice mail on Mr Shankar’s phone whilst he was there:
“Yeh, I’m now right outside your door, come out you bugger, you’re a fucking coward aren’t you, police police for everything, your fucking police – com out, be a man, you’re a fucking woman, is it?”
31․Mr Shankar again called 000 and reported Mr Ramalingam’s attendance to police. He reported that Mr Ramalingam was trying the PIN entry pad to the premises during the call. I am satisfied based on this evidence, corroborated by Ms Watson, that Mr Ramalingam did attend the Coombs residence on Tuesday 19 October 2021.
32․Mr Ramalingam left two further voice mails on Mr Shankar’s phone that night. At 8:56 pm:
“Tomorrow will be a happy, happy day”
33․And at 9:01 pm:
“Remember tomorrow starts after 12 o’clock tonight”.
34․This conduct continued on Wednesday 20 October 2021, Mr Ramalingam leaving yet another voice mail message on Mr Shankar’s phone at 12:09 am:
“Hmmm today has become tomorrow, so you are waiting for me to make a wrong move, so you can fix me, you narcissistic fucker, that won’t work…wait and wait for me to make a wrong move, I know what to do, you narcissistic manipulator, that is what you are.”
35․About 2:20 pm, Mr Ramalingam again attended Mr Shankar’s home, knocked repeatedly on the door and yelled Mr Shankar’s name, telling him to come out and stop being a coward. Mr Ramalingam moved between the home and the immediately adjacent car park of the Coombs shops a number of times. Mr Shankar called the 000 line again stating that his father was there. Mr Ramalingam left. Police Constables Tremethick and Simmonds confirmed that they attended and spoke to Mr Ramalingam whom they apprehended at the shopping centre car park, advising him not to return to Mr Shankar’s residence. Mr Ramalingam in interview initially denied attending that day but later accepted that he had.
36․In his interview, Mr Ramalingam also stated:
“And because he was not, ah – though I left messages, he was not calling me back. Ah, I – I might – I can’t remember exactly what I said but, ah, I must have said – something – was hoping to, you know, make him (laughs) ah, get annoyed with me and call me back. So that might have – I went and said some things hoping that that will at least make him call me back” … “I thought I’ll,,,I’ll – I’ll tell – be a bit rude to him, now he will call me back, and then I can find out what’s happening to the dog, you know”.
37․He was attempting to goad his “hot-tempered” son; when that did not work, he became concerned for his welfare.
38․That afternoon, Mr Ramalingam left two further voice messages. At 5:41 pm:
“Vinoshan can you call me back, I have a nasty feeling something is wrong with you, how can you wait in that place, day in, day out, call me back”
39․And at 5:47 pm:
“I promise I won’t talk about Tina, I’m just getting a premonition that something is not right with you so you call me”.
40․Mr Shankar was interviewed by police in respect to his complaint on Thursday 21 October 2021. Mr Ramalingam did not contact him that day.
41․On Friday 22 October 2021, Mr Shankar became aware that Mr Ramalingam had again attended the Coombs address when Ms Watson called at about 5:00 pm to warn him whilst he was travelling home. She observed the red Nissan as she was leaving the address.
42․Mr Shankar immediately called the 000 line to report his concern. Mr Shankar called 000 a second time when he saw his father driving around his residential complex in the red Nissan. It was arranged that police would attend to serve an interim family violence order which had been granted by the court two days prior. Mr Shankar called 000 a third time about half an hour later saying that he was parked in the adjacent shopping centre car park watching his father walking around the front of his townhouse.
43․The police called to follow up the situation with Mr Shankar at 7:30 pm. Mr Shankar advised that he was still in the car park as his father was still at the residence. Also, Mr Shankar advised that he was receiving messages from a neighbour whom Mr Ramalingam was questioning about the floor plan of the townhouse. Mr Ramalingam in interview stated that he had asked a neighbour to text his son.
44․At 7:39 pm, the police again called Mr Shankar to advise that a patrol was en route. During that call, Mr Shankar exclaimed that Mr Ramalingam was driving towards him in the car park. Confirming this, Mr Ramalingam stated in interview that whilst waiting at the front of the Coombs residence, he suddenly saw his car in the car park and drove over to it.
45․Whilst still on this call to 000, Mr Shankar was advised to drive towards the police station. He started to and informed the police that he was driving in circles having turned on to John Gorton Drive, then Fred Daly then back on to John Gorton. Whilst Mr Shankar was still driving around, the call-taker advised him that police were present and to pull over. Mr Ramalingam pulled over behind Mr Shankar. Mr Shankar expressed that he could not lock his car. The call ended when it was determined that police were on the scene.
46․In interview Mr Ramalingam said that he “went behind” his son’s car as he thought he was going back to his house, but he didn’t. Mr Shankar drove towards the main road.
“So I went – I was going behind him. Then, ah, because I – I was going behind him because – anyway, he’s also going in the same direction where – if I’m now – now – no point in my waiting here now. I have to go back to Queanbeyan…So I had to come back to the main road. So he’s going in that direction, so I went behind him. Ah, when he came to the main road, suddenly that the time when we are coming to the main road and going towards the main road, and nearly come to the main road, that’s the time suddenly I heard these sirens, police…and, ah, I stopped the car…and then I noticed he had also stopped the car in front. And then the police came and arrested me…I want following him…”
47․I find that Mr Ramalingam did not just follow his son along the main road as if on his journey home but, consistent with Ms Shankar’s running commentary to the 000 call-taker during the journey, police observations of the proximity of Mr Ramalingam’s car to Mr Shankar’s, and the fact that they stopped in a slip lane, not on the main road, satisfy me that Mr Ramalingam was in fact following Mr Shankar with a view to confronting him. This is also consistent with Mr Ramalingam’s response in interview that initially he was going to follow his son to his house to speak to him.
48․Mr Ramalingam was arrested at the scene by Police Constable Tahlia Fenech for stalking. A record of conversation during the arrest discloses that Mr Ramalingam was advised that he was under arrest for stalking.
49․Mr Ramalingam asserts that the arrest was unlawful because the officer could not recite all the elements of the offence when giving oral evidence in court. That submission is ill-founded. The arrest was based on the officer’s understanding of the facts at the time, and as she attested, to prevent repetition of an offence. It was lawful.
50․During the associated search, Mr Ramalingam stated:
“...trying to get my own dog back ain’t an offence, in my opinion.”
51․Mr Ramalingam was taken to City Watch House by other police officers whilst PC Fenech stayed at the scene and conducted a “family violence evidence in chief” (FVEiC) interview with Mr Shankar.
52․Mr Ramalingam was not interviewed that night due to a health scare which resulted in him being transferred to hospital. He was interviewed approximately 10 months later when the officer came across him inadvertently, having been unsuccessful in making contact in the meantime. Mr Ramalingam asserts that he was disadvantaged by being interviewed so long after the alleged incidents. Nonetheless, Mr Ramalingam relies on the version of events given in that interview. He exercised his right not to give oral evidence at the hearing.
53․Asked about his state of mind in interview, Mr Ramalingam stated that based on the one telephone contact in four years on 18 October 2021, his son had “started the ball rolling” about the dog and all was back to normal again with no enmity on either side.
54․It is a little unclear on the evidence when Mr Ramalingam became aware that the dog was not indeed terminally ill. It may have been as early as his first visit to the vet on Monday 18 October 2021, when he was told that Tina had been taken by Mr Shankar, or in that first phone call with Mr Shankar in which the latter said that he would get the dog to Mr Ramalingam for a visit but not immediately. He was certainly well aware of the dog’s recovery before his attendance at the Coombs residence on Friday, as he had attended the veterinary clinic and thanked those present for saving the dog.
55․I accept as facts the version of events related by Mr Shankar, corroborated in many respects by his father but also by his partner, Ms Watson, police witnesses, and contemporaneous complaints.
Decision
56․In total there were 12 unanswered calls by Mr Ramalingam to Mr Shankar over the period 18 to 20 October 2021, evidenced by a screen shot of Mr Shankar’s call history; there were nine voicemails and an email, all with concerning content; and there were four attendances at Mr Shankar’s home address after having been told by Mr Shankar not to attend, after having been excluded for a period by police and advised by other police officers not to attend the address. There was persistent knocking and attempts to gain access via a pinpad during those visits, extended loitering then leaving and returning during the visits, an attempt to extract information from a neighbour and using the neighbour as a conduit for contact and, finally, following Mr Shankar in his motor vehicle on a circuitous route.
57․The issue is Mr Ramalingam’s mental state.
58․The prosecutor submits that the court can infer from the context of the visits by Mr Ramalingam to Mr Shankar’s home, the content of messages directed towards him, along with the persistent attempts at clearly unwanted contact, Mr Ramalingam was not acting merely out of concern for the family dog but was harassing Mr Shankar at least in part because of anger towards him. His conduct was contrived to cause Mr Shankar to engage with him and to acquiesce in respect to his desire to see or have the dog. The conduct was intended to be harassing, or at least Mr Ramalingam must have turned his mind to the possibility that his conduct was harassing and continued anyway. He submits that Mr Ramalingam’s conduct was motivated not only by the desire to see the dog and to harass Mr Shankar but also by a curiosity about Mr Shankar’s new partner.
59․Mr Ramalingam’s filed written submissions which I summarise as best I am able to discern their meaning as follows:
(b) The police should never have arrested him because they could not have formed a view that the offence of stalking was made out without speaking to him about his intention in contacting his son;
(c) His sole intent was access to his dog and there was “no room” for any intent to harass nor recklessness as to whether his conduct was harassing;
(d) The prosecution cannot prove harassment without evidence from the complainant that he was actually harassed, which requires that he be fearful or intimidated Mellor v Low (2000) 48 NSWLR 517. The complainant stated only that he was “uneasy”; an intent to annoy does not amount to an intent to harass;(e) Even if his conduct were intentional or reckless, if the conduct does not actually harass the complainant, then the offence is not made out.
60․Section 35 provides, relevantly:
1) A person must not stalk someone with intent—
….
(c) to harass the person stalked.
Maximum penalty:
imprisonment for 2 years.
2) For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following:
a) follows or approaches the stalked person;
b) loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;
c) keeps the stalked person under surveillance;
d) interferes with property in the possession of the stalked person;
e) gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person;
f) telephones, sends electronic messages to or otherwise contacts the stalked person;
g) sends electronic messages about the stalked person to anybody else;
h) makes electronic messages about the stalked person available to anybody else;
i) acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person;
j) engages in conduct amounting to intimidation, harassment or molestation of the stalked person.
….
4) Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely—
a) to cause apprehension or fear of harm in the person stalked or someone else; or
b) to harass the person stalked.
….
61․The prosecution rely on intent to “harass”, a concept not defined in the Act. It is a term widely use in legislation, criminal and other. The Merriam-Webster On-line Dictionary defines harass as: “to annoy persistently; to create an unpleasant or hostile situation especially by uninvited and unwelcome verbal or physical conduct”. The Cambridge Online Dictionary defines harass as “to repeatedly annoy or upset someone over a period of time.” The Collins Online Dictionary defines harass as “to trouble, torment or confuse by continual persistent attacks, questions etc.” The common features of harass as defined are to act in a way which is persistent, unwelcome and impacts the subject in an emotionally negative way.
62․On the facts found, clearly Mr Ramalingam engaged in conduct on more than two occasions which falls within the categories of conduct capable of being characterised as stalking:
(a) Sub-section (b) he loitered at or approached Mr Shankar’s residence on four occasions after having been told not to;
(b) Sub-section (f) he telephoned and messaged Mr Shankar repeatedly over a 5-day period, and sub-section (j) some of the attempted telephone contacts were at hours of the day which might be considered inherently harassing when not welcome;
(c) Sub-section (j) he followed Mr Shankar in his motor vehicle, stopped only by police intervention;(d) Sub-section (j) made enquiries of a neighbour as to the layout of Mr Shankar’s residence
63․The section requires that the Defendant must intend to harass another, that is knowingly engage in conduct with the anticipated outcome that it would harass another. The section extends the definition of intent at sub-section 4 to include circumstances in which the defendant is reckless about whether stalking the other person would be likely to harass them.
64․Reckless in this context is not statutorily defined; it follows that the common law applies. The common law as to recklessness reflects the nature of the offence being considered. In the context of this provision, Penfold J in R v NO [2018] ACTSC 30 observed at [77]:
Section 35 of the Crimes Act is, for the purposes of the Criminal Code 2002 (ACT), a “pre-2003 offence” (s 8 of the Criminal Code). As such, s 20 of the Criminal Code, which defines recklessness, does not apply to the offence created by s 35 (ss 8 and 10 of the Criminal Code). In this case I have proceeded on the basis that NO would have been reckless about whether the stalking would be likely to harass the complainant if:
(a) he simply did not consider whether the stalking would harass the complainant; or
(b) he realised the possibility that the stalking would harass the complainant but went ahead regardless.
65․Her Honour’s approach is consistent with the approach adopted by Besanko J in Sims v Drewson [2008] ACTSC 91 (“Sims”), cited with approval in DPP v Walker [2011] ACTCA 1 and applied more recently in Pellegrino v Harman [2016] ACTSC 366. In these cases, all dealing with sexual assault, “non-advertent recklessness” was found to be a sufficient a mental element. In Sims Besanko J observed at [32]:
“For a number of years there has been a good deal of debate about where non-advertent recklessness can constitute recklessness and, if so, what constitutes non-advertent recklessness. On the face of it, acceptance of the concept of non-advertent recklessness as sufficient to constitute the mental element of recklessness seems to run counter to traditional notions of mens rea in criminal law as involving a guilty mind or evil intention … On the other hand, the notion of non-advertent recklessness seems well-established in the case of certain offences of which the present (sexual) offence is an example.”
66․Whilst this is an offence of a different nature, in light of Her Honour’s decision, I am bound to apply the same approach.
67․On Mr Ramalingam’s own evidence, he simply did not turn his mind to whether his conduct as a whole was harassing. On the extended definition of recklessness, the mental element of the offence is unequivocally made out.
68․I add for completeness that I infer from the circumstances that Mr Ramalingam clearly intended his conduct to harass Mr Shankar. He used the opportunity of contact with his son to belittle him and blame him for the breakdown of the family unit, whether for the purpose of causing Mr Shankar to bend to his desire to see Tina, whatever the legitimacy or otherwise of that desire, or otherwise.
69․I am therefore satisfied beyond reasonable doubt that the mental element of the offence is made out.
70․I conclude that Mr Ramalingam stalked Mr Shankar with intent to harass him; his conduct was persistent, unwelcome and designed to impact Mr. Shankar’s emotions negatively.
71․I note that sub-section 5 provides:
(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.
72․Whilst I am satisfied that Mr Shankar was in fact harassed by Mr Ramalingam’s stalking conduct, contrary to Mr Ramalingam’s submission, such a finding is not necessary for the offence to be proved.
73․It follows that I find the offence proved.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Magistrate Walker. Associate: A Jones Date: 9 December 2022 |
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