Thomas v Burk

[1999] TASSC 138

[1999] TASSC 138

CITATION:                 Thomas v Burk [1999] TASSC 138

PARTIES:  THOMAS, Michael Edward

v
BURK, Stephen Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA25/1998
DELIVERED ON:  13 December 1999
DELIVERED AT:  Hobart
HEARING DATE:  18 October 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law - Particular offences - Offences against the person - Other offences against the person - Miscellaneous offences - Other miscellaneous offences - Stalking.

Aust Dig Criminal Law [180]

Evidence - Admissibility and relevancy - In general - Other cases - Admissibility of relationship evidence to a charge of stalking.

Aust Dig Evidence [23]
Wilson v The Queen (1970) 123 CLR 334, referred to.

REPRESENTATION:

Counsel:
             Applicant:  D F M Zeeman
             Complainant:  K Brown
Solicitors:
             Applicant:  Butler McIntyre & Butler
             Complainant:  Director of Public Prosecutions

Judgment  Number:  [1999] TASSC 138
Number of paragraphs:  18

Serial No 138/1999
File No LCA25/1998

MICHAEL EDWARD THOMAS v STEPHEN MAXWELL BURK

REASONS FOR JUDGMENT  COX CJ

13 December 1999

1. The applicant was convicted on a charge of stalking contrary to the Criminal Code, s192, the particulars of the charge being that:

"On the 5th, 6th, 16th and 19th December 1996 at Hobart in Tasmania with the intention of causing another person namely Jennifer Lee mental harm, fear and apprehension, he followed Jennifer Lee and kept Jennifer Lee under surveillance."

The learned magistrate found that he had stalked the complainant on 6, 16 and 19 December 1996, but not on 5 December 1996.  Evidence was received over the objection of the applicant's counsel concerning a series of incidents occurring between the complainant and applicant in the course of an intimate relationship which commenced in 1992 and extended to 1996.  In August of that year, the complainant obtained a restraint order against the applicant and the order was in place in December when the incidents of stalking were alleged to have occurred.

1. The incidents about which evidence was received were as follows:

"•   Easter 1992 an occasion when the applicant argued with his son, lost his temper and kicked him

·    During a period when the parties separated the applicant telephoned the complainant and said 'I've got 20 tapes of personal conversations if you don't come back to me I will send them to relatives and friends.'

·    Verbal abuse including comments such as referring to the complainant as 'nothing' and a 'piece of shit'.

·    An occasion in 1993 when the complainant said she didn't love the applicant and he 'belted her across the face' and she suffered a swollen jaw.

·    During a break in the relationship and the complainant told the applicant about a trip to King Island and he said that if she went 'he would pour petrol through the house' and he asked her a question about what were the two most precious things to her.  The complainant said that she inferred a reference to her two children.

·    An incident on the 6th June 1994 when the complainant was walking from Hutchins School to the University Creche and the applicant came up behind her and swore at her.

·    An incident when the complainant and the applicant went to dinner at Prossers and then to the Casino and on the way home the applicant was driving at a speed of about 180 kph and verbally abusing her.  When they got home the applicant struck the complainant and she stepped back into a glass door causing it to smash.

·    An interim restraint order was taken out by the complainant on the 18th of June 1994 and after that the applicant followed her.  There was no detail of what took place.

·    An occasion in mid December 1995 when the complainant was at work at Fahan School.  The applicant rang her and said to her 'if you don't come with me I'll come and make trouble'.  They met at Sandy Bay Beach and the applicant abused the complainant.  That evening the complainant had planned to go to a work function and the applicant followed her and slapped her across her face.  The applicant turned up at the function uninvited by the complainant.

·    On the 27 April 1996 after both the complainant and the applicant had attended the Fahan Race Day, the applicant assaulted the complainant by striking her across her face with an open hand causing bruising.  The complainant sought medical treatment for an injury to her eye which was caused by the blow.

·    In August 1996 the applicant threatened the complainant stating that if she did anything about his behaviour he would knife her and tie her up in court."

1. The applicant, by ground 1 of his notice to review, complains "that the learned magistrate erred in law in directing herself as to the admissibility of the evidence relating to the relationship between the applicant and Jennifer Faye Lee prior to 13 August 1996".  In substance, the error alleged was that none of this evidence was relevant to the proceedings before the Court and should have been excluded.  The learned magistrate admitted it on the basis that it demonstrated the nature of the relationship which existed between the parties and helped to explain the nature and purpose of the acts said to constitute the offence, or in other words, tended to demonstrate that the applicant's acts in December 1996 which brought him into proximity with the complainant were deliberate and not coincidental and were carried out for the purpose of causing her fear and apprehension.  The learned magistrate also expressed herself satisfied that the probative weight of the evidence outweighed its prejudicial effect.  In Wilson v The Queen (1970) 123 CLR 334, the applicant had been convicted of murdering his wife by shooting her. He contended that the gun had been accidentally discharged by a dog jumping on it. Evidence was led of bad blood between the couple. At 337, Barwick CJ said:

   "The fundamental rule governing the admissibility of evidence is that it be relevant.  In every instance the proffered evidence must ultimately be brought to that touchstone. …

   It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility."

   At 344, Menzies J said:

   "It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were casually connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide."

   See also R v Hissey (1973) 6 SASR 280, R v Bond [1906] 2 KB 389, O'Leary v The King (1946) 73 CLR 566, R v Ethrington (1982) 32 SASR 230, Frawley v The Queen (1993) 69 A Crim R 208 and R v Peake (1996) 67 SASR 297.

1. The evidence was rightly admitted, in my view.  The presentation of evidence of many incidents in a lengthy relationship may become oppressive and prejudicial to the fair conduct of the defence and a court has a discretion to contain the extent of relationship evidence, but no claim has been made that the learned magistrate erred in failing to exclude such evidence on that basis.  I note that some allegations of conduct amounting to rape were, in any event, excluded.  It was submitted that evidence of the existence of the restraint order ought to have been enough to demonstrate the existence of friction between the parties without recourse to any earlier instances of disharmony.  Nevertheless, in my view the prosecution was entitled to place evidence of those earlier incidents before the Court.

1. On the hearing of the notice to review, ground 2 was amended and ground 3 added.  They now read:

"2The learned magistrate erred in law in finding the particulars of stalking proved relating to the 6th, 16th and 19th December 1996 at Hobart in Tasmania when there was insufficient evidence to find beyond reasonable doubt that the applicant had stalked the complainant on those days.

3In all of the circumstances, the conviction of the applicant was unsafe and unsatisfactory."

1. A case of this kind required proof that the applicant deliberately followed the complainant and/or kept her under surveillance and that he did so with the specific intent of causing her mental harm, fear or apprehension.  There was ample evidence from which the learned magistrate was entitled to be satisfied beyond reasonable doubt that the applicant did deliberately follow the complainant from time to time during lunch time periods on the days found by her, namely 6, 16 and 19 December, notwithstanding the evidence given and adduced by the applicant suggesting that his presence close to the complainant was fortuitous on all occasions. 

1. The applicant was employed as a fire safety officer by Telecom and was required to attend various installations in the City Centre, the main ones being the Davey Street Exchange, the Telecom Centre at 70 Collins Street and others at the Bathurst Street Exchange, Mather's Lane and the State Library.  He had the use of a white Holden sedan with "Telecom" written on the side.  His former wife worked at the National Mutual office in Macquarie Street between Murray and Elizabeth Streets.  His daughter worked at a place called Hearing Services at 173 Macquarie Street and he had an account at the CPS Credit Union in Collins Street.  The complainant worked at the Forestry Commission in Macquarie Street opposite the Collegiate School in the block between Molle and Barrack Streets.  Evidence was given by her of her movements and observations of the applicant on the four days mentioned in the complaint and certain police officers detailed to keep the applicant under surveillance on those days also gave evidence from which a largely uncontested picture of their movements emerged.  Although no stalking was found to have occurred on 5 December, the pattern of the applicant's conduct is relevant.

1. On 5 December, at about 1pm, the complainant walked from her office in Macquarie Street towards the city.  In the next block (between Barrack and Harrington Streets) she saw the applicant's car parked outside Motors, that not being far from 173 Macquarie Street.  As she approached the corner of Macquarie and Murray Streets, the applicant was seen by one of the police officers walking on Macquarie Street in the direction of Harrington Street near a sandwich bar at 149 Macquarie Street.  He was on the same side of the road as the complainant.  Whether he had passed her was not clear to the officer and the complainant did not claim in her evidence of that day to have seen him there.  She walked down to Hadley's Hotel in Murray Street to meet a female friend and they sat in a restaurant area which had a big plate glass window overlooking the street.  The applicant was seen to return to his car and to drive it down Macquarie Street through the Harrington Street intersection and left down Victoria Street where he turned right and drove down Collins Street through the intersection with Murray Street.  While still waiting for her friend to arrive, the complainant observed the applicant walking up Murray Street from Collins Street.  He looked in and, according to her, saw her, but kept walking.  When the friend arrived, they left Hadley's and went to another restaurant.  After lunch, as the complainant was returning to her work along Macquarie Street, the applicant drove down that street in the lane nearest to her and looked at her.  The police officers who had last seen the applicant about an hour earlier returned to a vantage point near the complainant's place of work and at about 2pm saw him drive his car from Molle Street into Macquarie Street past the Forestry Commission offices and look in their direction.

1. The applicant's version of the events of that day were that he left his car outside Motors and visited his daughter's place of work two doors away, before walking into town and meeting his wife for lunch.  He returned to his daughter's place of work about 2pm to collect some work she had prepared for him.  In cross-examination he said he did not walk into town to meet his wife, but drove and parked his car at 70 Collins Street before meeting his wife.  He conceded that he may have walked past Hadley's, but denied seeing the complainant.  He admitted driving down Macquarie Street, as observed by the police.  The learned magistrate found some of his evidence plausible, but found that there were two journeys past the complainant's office about 2pm, the first being possibly coincidental as he went to his daughter's place of work, but the learned magistrate found that on the second occasion he was looking for the complainant, who had by then returned to her work.  She found that his conduct could not therefore amount to "following" on this occasion and concluded that he did not stalk her on 5 December.

1. The following day the complainant left her office at about 1pm and walked down Macquarie Street.  The applicant came out of 173 Macquarie Street, where his daughter worked, and crossed to the other side of the street.  He walked towards the city, maintaining a distance of about 30 - 50 metres behind the complainant.  He was seen looking in her direction, slowing when she slowed and stopping when she stopped.  At Murray Street, the complainant turned left and proceeded towards Collins Street and crossed towards the Trust Bank.  The applicant was seen to cross over Macquarie Street at its intersection with Murray Street and walk towards Collins Street past Hadley's.  The officer last saw him at the south-east corner of that intersection, diagonally opposite the Trust Bank.  At about 2pm, the police were following the complainant back to her office.  Within the space of four minutes, they saw the applicant drive his vehicle from Barrack Street left into Macquarie Street.  On the first occasion he drove left from Macquarie Street into Harrington Street and then right into Collins Street.  By the second time he drove out of Barrack Street and down Macquarie Street, the complainant had returned to her office, a short distance above Barrack Street. At no time on this day did the complainant see the applicant.

1. The applicant's version was that he met his wife on the 6th and before that had a cup of coffee with his daughter at 173 Macquarie Street.  He walked from there down Macquarie Street turning left into Murray Street before going down Collins Street to meet his wife.  He denied seeing the complainant and when asked why he had slowed his pace and stopped, said he may have stopped for a cigarette.  He agreed that he had driven down Macquarie Street from Barrack Street twice at about 2pm, but said he was going to his Credit Union in Collins Street and had to go round the block a number of times to get a parking space.  As the Credit Union was in Collins Street to the left of Harrington Street, his turn right at that intersection, as seen by the police, is hard to understand.

1. The learned magistrate regarded his denial of seeing the complainant in Macquarie Street as fanciful and found that he followed her, although she accepted that his initial observations of her in Macquarie Street may have been coincidental.  She also found that the applicant was looking for the complainant at 2pm, but that as he did not see her, his actions at that time could not amount to following her and hence stalking her.

1. On 16 December, the complainant left work just after 12 noon and walked down Macquarie Street towards the city.  She saw the applicant in his car turning from Barrack Street into Macquarie Street and saw him look at her.  He passed her again near Victoria Street and again looked in her direction.  She turned left into Murray Street and proceeded to the Trust Bank on the corner of Murray and Collins Streets.  The applicant was sitting in his car at the lights at this intersection and watched her cross.  Later the complainant returned to her work along Collins Street, pausing to enter a St Vincent de Paul shop on the corner of Harrington and Collins Streets on the mountain side of Harrington Street.  The applicant was seen leaving the Centrepoint exit at Collins Street and walking up that street to the St Vincent de Paul shop where he walked past slowly and looked in the windows.  He continued along Collins Street for about 100 metres before retracing his steps towards Harrington Street.  At this time the complainant came out of the St Vincent de Paul shop and as she did so, the applicant walked into the Credit Union through one door and emerged from another, after about two seconds, carrying some forms.  The complainant crossed Collins Street and walked up Harrington Street towards Macquarie Street, turning right to return to her office.  The applicant walked to the corner of Harrington and Collins Streets and looked up Harrington Street until the complainant disappeared from view at Macquarie Street.  The learned magistrate found that the applicant followed the complainant on Collins Street and remained in her vicinity and then, on a pretext, walked into the Credit Union which allowed him more time in her vicinity and then watched her walk away.

1. On 19 December, the complainant left work at 1pm.  She saw the applicant drive past her place of employment.  She returned inside to get her sun glasses and then walked down Macquarie Street.  As she got about half way between Harrington and Barrack Streets, the applicant again drove past her on Macquarie Street and looked in her direction.  She continued walking and turned left into Murray Street and walked towards Collins Street.  She then saw the applicant walking towards her on her side of the street and as he approached her, he looked at her.  She then walked to a café called "Ducat's" in Wellington Walk.  Two police officers on surveillance duties followed the complainant from her place of work into the city.  They did not observe the applicant drive past, but saw him walk towards the complainant on Murray Street, on the same side of the street as the complainant.  He stopped and looked in the window of a travel bureau and as the complainant walked past him, he turned and watched her walk towards Collins Street.  He then continued in the same direction as before towards Macquarie Street and crossed over to the other side of the street.  He stopped and turned, looking in the complainant's direction and walked in her direction towards Collins Street at a distance behind her of about 50 - 60 metres.  The complainant crossed Murray Street and walked towards the Elizabeth Street Mall.  The applicant also turned right at Murray Street into Collins Street and walked down Collins Street on the other side of the street from that being used by the complainant.  Half way down, he stopped in the doorway of an insurance company and appeared to observe the complainant until she turned left into the Elizabeth Street Mall.  He then crossed to the other side of the street and walked into the Mall behind her.  After lunch, the complainant walked back up Murray Street past Hadley's Hotel and saw the applicant drive out of Macquarie Street and turn right into Murray Street.  The applicant did not dispute any of the movements attributed to him, save following the complainant from Collins Street into the Elizabeth Street Mall.  He admitted looking in the travel shop to see the price of air fares and doing the same thing near the insurance company in Collins Street, but from there he said he had gone into Trafalgar Place and thence to his wife's office, as they had arranged to meet for lunch and to buy Christmas presents for their children.  The learned magistrate found his evidence unsatisfactory and he provided no satisfactory explanation for his walking into the Mall after the complainant had been seen to do so.  She found that the first occasion when he passed the complainant in Macquarie Street could have been coincidental, but not the second time.  His presence there and his presence when walking on Murray Street was contrived and he remained in her vicinity and then deliberately followed her into the Mall.

1. In the light of all this evidence, I consider there was ample material to establish beyond reasonable doubt that on many of the occasions when the applicant was seen following or looking at the complainant or was in close proximity to her, he was deliberately keeping her under surveillance.  Some of the meetings may have been coincidental and the learned magistrate made allowance for that possibility; but she was entitled to conclude that they were not all coincidental and that some were contrived.  She was entitled to find that on the occasions which she identified on each of the three days the applicant followed the complainant or kept her under surveillance. 

1. The final issue was whether or not he intended his conduct to cause her fear and/or alarm.  It is true that he did nothing to expressly draw attention to himself and there were times when, it may be argued, he seems to have gone to some trouble not to reveal his presence, as, for example, following her on Macquarie Street on the other side of the street and stopping or slowing so as to maintain an even distance behind her.  On the other hand, it was broad daylight, he followed her at fairly close quarters, his car was distinctive and readily recognisable by her, there were some occasions when his movements brought him face to face with her and it was likely that she would observe him observing her, although surprisingly on some occasions, as, for example, the occasion when he looked into the Opportunity Shop which she had been seen to enter and his emergence from the nearby Credit Union the genuineness for his reasons for entering which the learned magistrate found lacking, she did not see him at all.  The learned magistrate had ample evidence of hostility by the applicant towards the complainant and his knowledge of the existence of the restraint order was a reason for keeping his surveillance of her low key and not so overtly threatening as to expose him to the risk of proceedings for breach of it.  In the light of the history between them, his persistent presence in situations where she was likely to see him was calculated to create in her a sense of alarm without recourse to hostile words or gestures.

1. The learned magistrate considered a number of hypotheses which might explain the persistent behaviour she found proven.  Before drawing the inference that he did have the requisite guilty intention, she excluded all other hypotheses which might have been consistent with innocence.  It cannot be said that she erred in law by misdirecting herself or that there was some other hypothesis which she could not exclude as being one reasonably open on the evidence.  Certainly none was advanced by the defence.

1. In my view, there was ample evidence to support a conviction and no basis upon which it can be said that the verdict was unsafe and unsatisfactory.  The notice to review is dismissed.