Tonkin v Macintosh
[2021] WASC 118
•21 APRIL 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TONKIN -v- MACINTOSH [2021] WASC 118
CORAM: TOTTLE J
HEARD: 7 APRIL 2021
DELIVERED : 7 APRIL 2021
PUBLISHED : 21 APRIL 2021
FILE NO/S: SJA 1092 of 2020
BETWEEN: JAMIE CHRISTOPHER TONKIN
Appellant
AND
TIAH MACINTOSH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S MALLEY
File Number : AR 10447 of 2019
Catchwords:
Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant submits he could not in law have been guilty of the offence upon the admitted facts - Whether miscarriage of justice would result from maintaining judgment of conviction - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 338D, s 338E
Result:
Application for extension of time within which to apply for leave to appeal refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms E R Zillessen |
| Respondent | : | Ms A K Miller |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580
Hart v The Queen [2003] WASCA 213
Hellings v The Queen [2003] WASCA 208
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vella v The State of Western Australia [2006] WASCA 129
TOTTLE J:
Summary
On the 16 January 2020 the appellant pleaded guilty to pursuing another in a manner that could reasonably be expected to intimidate under s 338E(2) of the Criminal Code (WA). The appellant's offending conduct is commonly known as stalking. The appellant, who was represented at the sentencing hearing, was fined, ordered to pay costs and granted a spent conviction order.
The appellant applied for leave to appeal, over nine months out of time, on the ground that there had been a miscarriage of justice. The appellant contended that on the facts admitted by him he could not in law have been guilty of an offence under s 338E(2) of the Criminal Code.
At the conclusion of the hearing I dismissed the application for an extension of time within which to appeal, and dismissed the application for leave to appeal and the appeal. I gave brief reasons for my decision and said that written reasons would follow. These are those reasons.
The facts
The facts admitted by the appellant were summarised by prosecuting counsel as follows:
The accused is a tow truck driver and regularly parks his tow truck on Stalker Road near Demnick Street in Gosnells. The victim, walks between her home and the Gosnells train station about 7.45 in the morning and 5.50pm returning in the evenings, Monday to Friday. The victim crosses the Gosnells football oval on Stalker Road near Gosnells. This is the route she normally takes. The victim has come to the notice ‑ has come to notice the accused parked his truck in that location every day.
That's the background. 10 am on Saturday, 10 August, the accused was at the intersection of Main Street and Lissiman Street in Gosnells, the same suburb. The accused approached the victim, who was walking, engaged in a conversation with her. The accused followed the victim and walked with her … He said hi. He said:
I know you because I see you walk across the park every day. I wave to you but you never wave back to me. You always seem to have headphones on.
Yes, I listen to music -
the victim said.
You must work nine to five.
Yes.
And then they part company. The victim grew uncomfortable so the accused ‑ so told the accused she was going a different way and crossed the street and the accused stopped following the victim. 7.45 am on Monday 12 August, the accused was parked in his tow truck at the entrance gates to the Gosnells football oval on Terrance Street, which is the oval the victim uses to cross on the way to work. The victim was walking to the train station and noticed the accused at the entrance to the oval. The victim found this unusual as the accused had always previously parked on Stalker Road with his tow truck. The victim felt uncomfortable and chose not to walk across the oval that day.
The victim walked along Terrance Street and then Stalker Road towards the train station around the block. The accused followed the victim down Stalker Road, driving his tow truck. The accused turned into Wheatley Street and parked in a driveway on the corner of the intersection. At 5.50 pm on 12 August, so the same day in the afternoon, the accused was sitting on the ‑ near the garden bed at the Gosnells football oval on the Walter Street side of the road. A map would assist you, but ‑ because it's a sentence.
The victim was walking along Terrance Street towards Walter Street and noticed the accused sitting there. The accused was staring at the victim. The victim walked on the opposite side of the road to avoid the accused, while continuing on her route home. Due to the incidents, the victim became anxious about walking to work. At about 7.45am on Tuesday, 13 August, the accused took an Uber to the train station to avoid contact with the accused.
At about 5.50 pm on Tuesday 13 August, the accused was on Terrance Street in Gosnells, walking towards the Gosnells train station. The victim had just left the Gosnells train station and was walking along Terrance Street towards her home address. The victim noticed the accused walking towards her and considered crossing to the opposite side of the road but there was no footpath and it was not well lit. As the accused approached the victim, he greeted her. The victim acknowledged the greeting and continued walking.
The victim checked to see if the accused was following her. However, the accused couldn't be seen. Then at about 7 am on 16 August 2019, the victim was at her home address of 11 Watson Street in Gosnells. The accused knocked on the door and the victim answered. The accused apologised to the victim for his unseemly behaviour throughout the week. The victim acknowledged the accused and shut the door and the accused left. At 8 am the same day, the victim was driven to the Gosnells train station by her sister. The accused was waiting by the train station entrance near the public toilets.
The accused approached the victim and again apologised for his behaviour over the week. He further apologised if he had scared the victim. The victim told the accused to leave her alone and the accused acknowledged the victim. The victim continued on to her commute to work. The victim was made to feel scared. Well, she was scared, I should say, for her safety and uncomfortable about walking to the train station and subsequently reported these incidents to police. He was later interviewed in relation to the matter.
In the course of the plea in mitigation the appellant's trial counsel made the following points.
(i)The appellant had been diagnosed with autism and was not taking his regular medication and that could account for staring, daydreaming and 'loitering' and other communication issues.
(ii)In the appellant's counsel's opinion the 'only objectively concerning occurrence' was the attendance at the complainant's home.
(iii)The appellant's attendance at the complainant's home was an unintentional occurrence because the appellant had been given the address by a third party who contacted the appellant, scared him, warned him off the complainant and told him to meet the third party at the address to 'sort it out'. The appellant did not know that the address he had been given was the complainant's address.
(iv)The appellant had a towing contract with the Gosnells City Council and he worked in the area in which the offending took place 'a lot'.
(v)The appellant was at the train station on 16 August 2019 because he had intended to catch a train though ultimately he did not do so.
Leave to appeal
As an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) the appellant requires leave to appeal.[1] Leave to appeal must not be granted by the court unless it is satisfied that the ground has a reasonable prospect of success.[2] In order to meet this threshold the ground of appeal must be shown to have a rational and logical prospect of succeeding, meaning, a real prospect of success.[3]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P,
The circumstances in which a plea of guilty will be set aside
In Vella v The State of Western Australia [2006] WASCA 129,[4] Steytler P (with whom Wheeler and Buss JJA agreed) remarked that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty, his Honour went on to observe:
In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
[4] Vella v The State of Western Australia [2006] WASCA 129 [26].
The statutory provisions
Section 338E(2) of the Criminal Code sets out the offence of stalking as follows:
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.
The term 'intimidate' is defined as follows:[5]
intimidate, in relation to a person, includes ‑
(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;
[5] Criminal Code (WA) s 338D(1).
The term 'pursue' is defined as follows:[6]
pursue, in relation to a person, includes ‑
(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.
[6] Criminal Code (WA) s 338D(1).
Section 338D(2) provides:
(2)For the purpose of deciding whether an accused person has pursued another person ‑
(a)the accused is not to be regarded as having communicated with or followed that person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with or follow that person;
(b)an act by the accused on a particular occasion is not to be taken into account for the purpose of deciding whether the accused watched or beset a place where that person lived, worked or happened to be, or the approaches to such a place, if it is proved by or on behalf of the accused that on that occasion the accused did not know it was such a place.
In contrast to the more serious offence created by s 338E(1), an intention to intimidate is not an element of the offence created by s 338E(2). The elements of the offence created by the latter subsection are:
(i)a pursuit of a person;
(ii)in a manner that could reasonably be expected to intimidate that person; and
(iii)intimidation of the person pursued.
Overview of the issues
In this case it was accepted that the complainant had in fact been intimidated by the appellant. The controversial issues were whether the admitted acts established the appellant had pursued the complainant within the meaning of s 338D(1) and if so, whether it was in a manner that could reasonably have been expected to intimidate the complainant. The appellant's counsel contended that the appellant's conduct towards the complainant was simply ordinary interaction between two members of society and the only pursuits that the appellant was engaged in were his pursuit of a 'habitual attachment to a place' - his usual parking place near the train station and the pursuit of his livelihood.
The appellant did not maintain an argument foreshadowed in his written submissions to the effect that there needed to be causal connection on the facts between the first and the third element under s 338E(2).
Additionally, two short points of statutory construction were raised by the appellant's submissions. The first point was whether a 'course of conduct' could constitute a pursuit. The appellant's counsel contended the offence was not concerned with a course of conduct.[7] Rather, the focus should be on whether 'relevant pursuits' as set out in the definition in s 338D(1) of the Code had been proved. By way of an illustration of the consequences of the approach that had to be taken, the appellant's counsel contended that one 'can't just tack on a following onto a communication pursuit'.[8] The second statutory construction issue was whether 'apprehension' as it appears in paragraph (b) of the definition of 'intimidate' is, as the appellant's counsel contended, 'another word for fear'.[9]
[7] ts 12.
[8] ts 14. In her reply, counsel for the appellant argued that to speak to a person on the street and walk with them cannot be classified as following. However, this fails to address whether the conduct could nevertheless amount to a pursuit.
[9] ts 12.
Consideration
The meaning of 'pursue'
An inclusive definition is not to be understood as excluding all other meanings, not covered by the definition, that fall within the ordinary meaning of the word.[10] In determining whether a course of conduct can be taken into account to determine whether a person has pursued another it is necessary to consider the ordinary meaning of the word 'pursue'. The dictionary definitions of 'pursue' include: 'to strive to gain; seek to attain or accomplish (an end, object, purpose, etc)',[11] 'to follow persistently or seek to become acquainted with',[12] and 'persistently attend, stick to; seek after, aim at (pleasure etc, one's object)'.[13]
[10] Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580, 588 ‑ 589 (Barwick CJ).
[11] Macquarie Dictionary (7th ed, 2017).
[12] Collins Dictionary of the English Language (2nd ed, 1986).
[13] The Australian Concise Oxford Dictionary (3rd ed, 1997).
In my view 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 - and this ordinary meaning is not excluded by the inclusive definition of pursue contained in s 338D(1) of the Criminal Code. Further, this construction reflects the importance of evaluating the conduct constituting a pursuit as a whole when determining whether it could reasonably be expected to intimidate under the second limb of s 338E(2).
The meaning of apprehension
Turning to the meaning of apprehension - the ordinary meaning includes 'uneasiness'.[14] 'Apprehension' conveys a sense of concern which has not reached a state of fear. In the statutory context in which 'apprehension' is used two matters make it clear that it is not intended to have the same meaning as 'fear'. These matters are: the disjunctive 'or' between 'apprehension and 'fear'; and the fact that if the word 'apprehension' meant fear, one or other of the words would have no work to do within the definition.
The appellant pursued the complainant
[14] The Australian Concise Oxford Dictionary (3rd ed, 1997).
I have no hesitation in concluding that on the admitted facts (excluding for this purpose the appellant's attendance at the complainant's home on 16 August 2019 on the basis that the interaction on that occasion was not intended by the appellant and was thus excluded by operation of s 338D(2)) that the appellant pursued the complainant. The admitted facts which compel this conclusion are as follows. The appellant engaged the complainant in conversation on Saturday 10 August 2019, following her as she walked, and told her that he knew she walked across the football oval every day. The following Monday morning rather than parking his truck in his usual place, he parked near to where the complainant entered the oval on her walk to the train station; when the complainant altered her route to walk along the street rather than across the oval, he followed her in his truck. Later that day, the appellant was sitting near the entrance to the oval and was staring at the complainant. The following day at 5.50 pm the appellant approached the complainant as she was walking home and greeted her. On Friday, 16 August 2019, the appellant approached the complainant as she approached the entrance to the train station.
The appellant pursued the complainant in a manner that could reasonably be expected to intimidate
In Hellings v the Queen[15] the Court of Appeal made the following observations regarding the second element of the offence created by s 338E(2)[16]:
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.
[15] Hellings v The Queen [2003] WASCA 208.
[16] Hellings v The Queen [13].
In the course of oral submissions counsel for the appellant referred to the discussion by Steytler P in Hart v The Queen[17] of propositions relating to the function of 'the ordinary person' as providing an objective and uniform standard of the minimum powers of self‑control for the purposes of the defence of provocation. Interesting though these observations are, I have reservations about whether observations made about the 'ordinary person test' in the context of the defence of provocation are directly applicable to the exercise of judgment required by the phrase, 'in a manner that could reasonably be expected to 'intimidate'. In any event, as I am about to explain, I have no reservation in concluding that the appellant's conduct as admitted could reasonably be expected to intimidate.
[17] Hart v The Queen [2003] WASCA 213.
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'.
The aspects of the appellant's conduct that lead me to the conclusion that it was conduct that could reasonably be expected to intimidate are as follows:
(i)The unsolicited nature of the appellant's approach to the complainant on the street coupled with remarks to the effect of:
I know you because I see you walk across the park every day. I wave to you but you never wave back to me. You always seem to have headphones on;
Unsolicited remarks like these made to a woman by a man she does not know are likely to cause apprehension. They suggest the man has been observing the woman and there is an underlying sense of dissatisfaction on the man's part because the woman does not wave back to him. I would add that the ordinary man might also feel apprehension if approached in this way.
(ii)The appellant parking his truck at the entrance of the oval, as opposed to the side street where he usually parks, and then following the complainant in his truck when she changed her normal route to avoid him. One only needs to describe the circumstance ‑ a man (effectively a stranger) in a truck waiting for, and then driving the truck to follow, a woman along a street as the woman walked to work ‑ to understand that such conduct is very likely to convey a sinister or unwelcome intent on the part of the follower that could reasonably be expected to cause apprehension or fear on the part of the woman.
(iii)The appellant sitting by the entrance to the oval that the complainant walked across to get home and staring at the complainant having earlier that day followed the complainant down the street in his truck.
Conclusion
For the reasons given I consider the three elements of the offence under s 338E(2) were satisfied by the admitted facts. There was no miscarriage of justice.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Associate to the Honourable Justice Tottle
21 APRIL 2021
Wheeler & Roberts-Smith JJA).
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