Tonkin v Shaw
[2021] WASC 254
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TONKIN -v- SHAW [2021] WASC 254
CORAM: TOTTLE J
HEARD: 5 MAY 2021 & FURTHER WRITTEN SUBMISSIONS FILED ON 12 MAY 2021 & 19 MAY 2021
DELIVERED : 30 JULY 2021
FILE NO/S: SJA 1075 of 2020
BETWEEN: JAMIE CHRISTOPHER TONKIN
Appellant
AND
WAYNE ARTHUR SHAW
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T R HALL
File Number : AR 1755 of 2020, AR 1756 of 2020
Catchwords:
Criminal law - Appeals - Breach of restraining order - Requirement not to 'intimidate' protected person - Whether conviction unreasonable or not supported by the evidence - Where context relevant to question of intimidation - Where appellant not a reliable or credible witness - Application of propensity evidence - Appeal dismissed
Legislation:
Criminal Code (WA), s 338D, s 338E
Evidence Act 1906 (WA), s 31A
Restraining Orders Act 1997 (WA), s 6, s 12(1), s 13(2), s 61(1A),
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms E R Zillessen |
| Respondent | : | Ms P A Femia |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Hellings v The Queen [2003] WASCA 208
MEN v The State of Western Australia [2020] WASCA 118
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Tonkin v McIntosh [2021] WASC 118
TOTTLE J:
Introduction
The appellant has applied for leave to appeal against two convictions entered on 10 September 2020. The convictions were in respect of:
(a)breaching a violence restraining order (VRO) contrary to s 61(1A) of the Restraining Orders Act 1997 (WA);
(b)pursuing another in a manner that could reasonably be expected to intimidate and does in fact intimidate contrary to s 338E(2) of the Criminal Code (WA) (commonly known as stalking).[1]
[1] The appellant was charged with the more serious offence of stalking with intent to intimidate under s 338E(1) of the Criminal Code but was convicted of lesser alternative offence of a contravention of s 338(E)(2).
The stalking offence was committed between 23 January 2020 and 10 February 2020 and the breach of the VRO was committed on 10 February 2020.
The grounds on which the applications for leave to appeal are based are that the convictions were unreasonable and not supported by the evidence.
The statutory provisions
Under the Restraining Orders Act 1997 (WA), when a court is considering whether to make a VRO and what the terms of the order should be, the court must consider the need to protect the applicant from personal violence, and the need to prevent behaviour that could reasonably be expected to cause the applicant to apprehend they will have personal violence committed against them.[2] The stalking of an applicant is an act of personal violence.[3] In this context 'stalking' is defined to include committing an offence under s 338E of the Criminal Code.[4] The Restraining Orders Act also expressly provides for a person being restrained from being on or near a specified place.[5]
[2] Restraining Orders Act 1997 (WA) s 12(1).
[3] Restraining Orders Act 1997 (WA) s 6(c).
[4] Restraining Orders Act 1997 (WA) s 3(1).
[5] Restraining Orders Act 1997 (WA) s 13(2)(b).
Section 61(1A) of the Restraining Orders Act 1997 (WA) provides:
A person who is bound by a VRO and who breaches that order commits an offence.
Section 338E(1) of the Criminal Code provides:
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.
Alternative offence: s 338E(2).
...
Section 338E(2) of the Criminal Code provides:
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 terms 'intimidate' and 'pursue' are defined in s 338D(1) of the Criminal Code as follows:
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;
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.
The concept of 'pursue' is confined by s 338D(2) which 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.
An intention to intimidate is not an element of the offence created by s 338E(2), in contrast to the more serious offence under s 338E(1). The elements of the offence created under s 338E(2) are:
(a)a pursuit of a person in a manner that could reasonably be expected to intimidate that person; and
(b)intimidation of the person pursued.
The appellant's prior conviction for stalking the complainant
An unusual aspect of this matter is that on 16 January 2020 (seven days before the relevant offending commenced) the appellant had been convicted, on his plea of guilty, of stalking the same complainant between 10 August and 16 August 2019. The appellant was fined and a spent conviction order was made.[6] At the appellant's trial the prosecution notice and transcript of the sentencing hearing for the prior stalking offence were tendered as propensity evidence under s 31A of the Evidence Act 1906 (WA).
[6] The appellant applied for leave to appeal out of time against the conviction entered on 16 January 2020 on the ground that there had been a miscarriage of justice. The application for an extension of time within which to appeal and the application for leave was dismissed on 7 April 2021, Tonkin v McIntosh [2021] WASC 118.
The facts of the prior stalking offence summarised by the prosecutor on 16 January 2020 and, by reason of his guilty plea, admitted by the appellant were as follows:[7]
[7] Tonkin v McIntosh [4].
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 5.50 pm 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 7.45 am 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 [redacted]. 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.
The VRO
The VRO was obtained on 6 February and served on the appellant on 7 February 2020. Relevantly, the VRO provided the appellant must not:
behave in an intimidatory, offensive or abusive manner towards the Person protected,
… enter or remain upon Protected Person premises or any other premises where the Person Protected lives or works or is educated or be within 100 metres of the nearest external boundary of those premises,
approach within 50 metres of the Person Protected.
The prosecution case at trial[8]
[8] The summaries of the prosecution case, the defence case and the magistrate's reasons are drawn from the respondent's written submissions filed on 23 April 2021.
The prosecution case at trial was:
(a)The course of conduct constituting the appellant's pursuit of the complainant comprised four incidents on 23 January 2020, 4 February 2020 and 10 February 2020.
(b)The appellant and the complainant were known to each other by reason of the incidents giving rise to the appellant's conviction for the prior stalking offence but they had never been in a pre‑existing friendship or relationship. The appellant came to know and knew where the complainant resided, the complainant's work commute schedule and the complainant's daily public transport use by reason of the prior offending.
(c)On 23 January 2020, the complainant was at the Gosnells train station and the appellant was there at the same time. The appellant yelled out to the complainant, 'Hey mamma'. She ignored him and walked away.
(d)On 4 February 2020, the complainant was walking to the Gosnells train station on her way to work. The appellant emerged from behind some bushes and yelled, 'Hey, mamma'. She told him to 'fuck off' to which he responded, 'What you gonna do about it?' and started to laugh.
(e)On that same day, a person who the prosecution alleged was the appellant was captured on the complainant's CCTV cameras to be walking past her house and looking at it.
(f)On 6 February 2020, the complainant made an application for the VRO, which was granted and served on the appellant on 7 February 2020.
(g)On 10 February 2020, the complainant was walking to the Gosnells train station on her way to work and saw the appellant in a park looking at her. He walked away after she started filming him on her mobile phone. This was said to be intimidatory behaviour given the history of the complainant with the appellant.[9]
[9] ts 109.
The defence case at trial
The defence case at trial was that any encounters with the complainant were accidental, that the appellant is in the habit of going on lengthy and frequent walks around Gosnells, and that in any event the appellant could not be conclusively identified as the man observed by the complainant and on the CCTV footage.[10]
[10] ts 6.
At the commencement of the trial, the appellant admitted that the VRO had been served on him on 7 February 2020, and a copy of the VRO was tendered.
In oral evidence, the appellant denied that he was the person who the complainant said she encountered on 23 January 2020 and 4 February 2020.[11] He denied that he was the person observed in the CCTV footage walking past the complainant's house, but also stated that 'it could have been him', and stated he is not sure where the complainant lives and does not really recognise her house.[12] As to the incident on 10 February 2020, the appellant agreed that he was in that location on that day and that he saw someone filming or taking photos of him so he 'bolted in the opposite direction',[13] and stated that it was a 'coincidence'.[14]
[11] ts 94, 104.
[12] ts 95, 104.
[13] ts 96, 106, 108.
[14] ts 107.
The magistrate's reasons
The magistrate delivered oral reasons at the end of the trial. His Honour summarised the complainant's evidence,[15] and found the complainant to be a very credible and reliable witness.[16] In this respect, the magistrate observed as follows:[17]
(a)her evidence was detailed;
(b)she was cross-examined thoroughly and was not shaken in cross-examination;
(c)as to the identification evidence, the appellant was not someone she did not know; she had got to know the appellant because of the stalking and had over 15 interactions with the appellant due to the initial stalking;
(d)she did not 'play up' her evidence in relation to the incident on 23 January 2020 by saying the appellant was pursuing her, nor in relation to 4 February 2020 by saying she saw the appellant in the park;
(e)her evidence was consistent with the pattern of behaviour involved in the prior stalking offence; and
(f)her evidence was corroborated by the appellant's 'distinctive' voice and by the CCTV footage of the appellant.
[15] ts 117.
[16] ts 119.
[17] ts 119 - 121.
The magistrate found that the appellant was not a credible or reliable witness. Accordingly, the appellant's evidence was put to one side with the exception of his admission in relation to the incident on 10 February 2020.
In arriving at his conclusion in respect of the appellant's credibility, the magistrate took into account that the appellant:[18]
(a)is on the autism spectrum, and this was evident in the manner in which he gave evidence;
(b)denied the prior offending to which he had pleaded guilty with counsel; and
(c)gave evidence that the complainant had been taking photos of the appellant in February 2019.
[18] ts 118 - 119.
Accordingly, the magistrate was satisfied beyond reasonable doubt that:[19]
(a)on 23 January 2020, the appellant approached the complainant and said, 'Hey, mamma';
(b)on 4 February 2020, the appellant interacted with the complainant coming out of the park and again said, 'Hey, mamma', laughed and said, 'What are you doing to do about it?';[20]
(c)on 4 February 2020, at 10 am the appellant walked past the complainant's house; and
(d)on 10 February 2020, the appellant was in the park, was looking at the complainant, and turned and ran away when he saw she was filming.
[19] ts 121 - 122.
[20] ts 20.
The magistrate concluded on the evidence adduced at trial that the appellant 'pursued' the complainant within the meaning of s 338D (subsections (b) and (d)) on the basis that he repeatedly followed her and watched or beset the place where she lives or works or happens to be.[21] As to following, the magistrate inferred that the appellant had followed the complainant:[22]
in relation to the incident where she saw a man in a tan and white shirt - a tan shirt and black shorts walking the other way and then, not long after, he has been behind her.
[21] ts 122.
[22] ts 124.
The magistrate concluded that the defence in s 338D(2)(b) was not made out as the facts of the prior conviction demonstrated that the appellant knew that the complainant caught the train to work, the times she left and returned, her route to work and where she lives.[23]
[23] ts 122.
The magistrate did not accept the appellant's assertion at trial that the incidents occurring between him and the complainant were coincidental.[24]
[24] ts 123 - 124.
The magistrate was satisfied beyond reasonable doubt that the appellant pursued the complainant in a manner that could reasonably be expected to intimidate and that did, in fact, intimidate. This was not because of just one act by the appellant, but because of the culmination of all the acts of the appellant including the acts making up the prior offence of stalking offence.[25]
[25] ts 124 - 125.
The magistrate was not however satisfied the element of intent, required to establish the offence of stalking with intent under s 338E(1) was made out.[26]
[26] ts 124.
As to the breach of the VRO, the magistrate was not satisfied beyond reasonable doubt that the appellant was within 50 m of the complainant but was satisfied that the appellant behaved in an intimidatory manner, when viewed in culmination with the other conduct towards the complainant.[27]
[27] ts 125.
Leave to appeal
The appellant requires leave to appeal as this is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA).[28] Leave to appeal must not be granted unless the court is satisfied that the ground has a reasonable prospect of success.[29] This threshold will have been met if the ground of appeal can be shown to have a rational and logical prospect of succeeding, meaning, a real prospect of success.[30]
[28] Criminal Appeals Act 2004 (WA) s 9(1).
[29] Criminal Appeals Act 2004 (WA) s 9(2).
[30] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
If leave to appeal is not granted on at least one ground of appeal, the appeal is taken to be dismissed.[31]
[31] Criminal Appeals Act 2004 (WA) s 9(3).
The circumstances in which a conviction will be unreasonable and not supported by the evidence
The principles guiding an appeal against a conviction on the grounds that it was unreasonable and not supported by the evidence, which apply by analogy to a trial before a magistrate,[32] were recently summarised by Quinlan CJ and Beech JA in MEN v The State of Western Australia:[33]
[32] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44].
[33] MEN v The State of Western Australia [2020] WASCA 118 [403] - [406].
In Wells v The State of Western Australia, this court summarised the principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence, by reference to the leading authorities, including M v The Queen, SKA v The Queen and R v Baden-Clay, as follows:
(a) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(e) A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(f) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(g) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
In Fennell v The Queen, the High Court observed:
'Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.'
Recently, in Pell v The Queen, the High Court elaborated on the principles in the following terms:
'[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.'
In this passage, the High Court emphasised that the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court. The appellate court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. The question for the appellate court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt. (citations omitted)
Breach of violence restraining order
The appellant's contentions
The appellant's contentions were to the following effect:
(a)When a restraining order is being drafted to protect a person from stalking, the question of the places where the respondent should not be allowed to go is of principle importance and should be expressly addressed in the terms of the order.
(b)Given that specific prohibited physical locations may be specified in a restraining order, an order restraining a person from behaving in an 'intimidatory manner towards the protected person' must, by definition, be an actual manner of conduct, irrespective of location.
(c)Any order restraining a person's behaviour so as to prevent acts of personal violence should clearly define the behaviour 'that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them.'
(d)If the ambit of the 'intimidatory behaviour' is not defined in the order, it is not permissible to stretch the breadth of 'intimidatory behaviour' to include every instance 'where intimidation arises in the complainant that is reasonably foreseeable'.
(e)The appropriate remedy for a complainant upon realising that a restraining order has not prohibited someone from being in certain public places is to make an application to vary the terms of the order and to discover whether, on the basis of the evidence, there are grounds to exclude a person in the way that they desire from public areas.
(f)That a protected person is intimidated does not compel the conclusion that the person subject to an order prohibiting 'intimidatory behaviour' has acted in an intimidatory manner.
(g)It is unreasonable to assess the wrongfulness or intimidatory nature of the appellant's conduct (presence) in the park on the morning of 10 February 2020 by reference to his state of mind, that is, his knowledge of the complainant, his knowledge of where he 'should and shouldn't be' due to history, in circumstances where the magistrate found there was not enough evidence to prove that the appellant intended to intimidate the complainant.
(h)If it was proved someone was acting with intent in stalking someone else at any relevant time, a subsequent presence in a place, combined with the intent to intimidate the complainant by being there, could possibly be construed as 'behaving in an intimidatory manner'.
(i)To find the appellant acted with sufficient intimidatory 'manner' to breach the order is logically inconsistent with the legal basis of the conviction for simple stalking which was founded on the absence of intent on the appellant's part.
(j)In finding the alleged act not intimidatory on its own but intimidatory due to prior impugned conduct, the magistrate mistook the capacity of the act to be seen as part of a series of acts (stalking) with the capacity of the act to transgress a specific prohibition (breach of the VRO).
(k)The evidence was not capable of supporting the proposition that a breach of the VRO occurred on 10 February 2020 because:
(i)There was no prohibition in the VRO requiring the appellant to stay away from the park.
(ii)The conclusion that the appellant's presence in the park was connected to the complainant is no more than a reasonable possibility about which there is a reasonable doubt because there was no evidence to negative that the appellant was in the park for an innocent purpose unconnected to the complainant.
(iii)The appellant's conduct in the park as observed by the complainant was not inconsistent with his evidence about why he was there.
(iv)The appellant's conduct in moving away from the complainant when he noticed her filming him is inconsistent with the intimidation by him of her.
(v)The appellant's conduct cannot properly be characterised as 'behaviour towards the person protected' - there was no act by him directed towards the complainant.
The respondent's contentions
The respondent's contentions were to the following effect:
(a)The VRO imposed restrictions on the appellant that were necessarily directed towards protecting the complainant from personal violence, specifically stalking, and word 'intimidatory' should be interpreted in a manner consistent with s 338E of the Criminal Code.
(b)Accordingly, conduct which could reasonably be expected to intimidate another, within the meaning of s 338E(2) of the Code, would also be objectively 'intimidatory' for the purposes of the term of the VRO. Asking whether conduct could reasonably be expected to intimidate an ordinary person in the position of the complainant is consistent with objectively assessing whether a person behaved in an intimidatory manner towards the complainant.
(c)Because the concept of 'intimidate' in s 338D of the Code includes causing fear or apprehension, the word 'intimidatory' in the VRO should not be confined to conduct which may cause fear, but also extend to conduct which may cause apprehension in another.
(d)What is 'intimidatory' in a particular case will necessarily depend on the surrounding circumstances and the relationship between the parties. In this case it would be appropriate to consider the evidence relating to the history of the relationship between the appellant and the complainant,[34] including that the previous interactions between the appellant and the complainant had occurred in or near the park in the early morning and early evening.
[34] Hellings v The Queen [2003] WASCA 208 [34].
(e)The complainant's evidence at trial was not simply that she saw the appellant going about his business and felt intimidated by his presence. Rather, her evidence was:[35]
[35] ts 23 - 24.
I walked over towards the vacant parkland and the [appellant] was standing there watching me.
…
At the time I first saw him he was just standing out in the middle of the open parkland. When he saw me recording, though, he did turn and walk toward Walter Street.
(f)In his evidence, the appellant essentially agreed that he was in that location on that day, saying that he saw someone filming or taking photos of him so he 'bolted in the opposite direction', and said it was a 'coincidence'.[36] He did not give evidence as to why he was in the park that day, only saying that he was 'on [his] way to do what [he] had to do'.[37] His evidence as to going on regular walks around Gosnells was at a general level only.[38]
(g)On the basis of the complainant's evidence, it was open for the magistrate to be satisfied beyond reasonable doubt that the appellant was waiting along the complainant's usual route during her usual commute time and watching her.
(h)In light of the propensity evidence, which was highly probative, the frequency of the encounters between the appellant and the complainant and the fact that each of those encounters occurred near the Gosnells train station during the complainant's usual commute times, it cannot be said the magistrate must have entertained a reasonable doubt on the basis that this encounter was coincidental.
(i)The appellant's conduct in standing in the vicinity of the complainant's regular and daily commuting route, during the time of her regular and daily commute and watching the complainant was intimidatory in light of all of the surrounding circumstances (including the previous interactions with the complainant and the circumstances of the prior offending against her). This is because it was a continuation of the appellant's pursuit of the complainant notwithstanding that the complainant had practically exhausted available avenues for stopping or deterring the appellant's pursuit of the complainant, including:
(i)reporting the matter to the WA police, which resulted in the appellant being convicted and sentenced for prior offending of this kind;
(ii)telling the appellant to 'fuck off' because of the continued conduct; and
(iii)obtaining the VRO, which was served with on the appellant by the WA Police.
Consideration and disposition
[36] ts 95 - 96, 106 - 108.
[37] ts 107.
[38] ts 89 - 91, 93 - 94.
I will deal first with the appellant's contentions as to the terms of the VRO. I do not accept that because a VRO may impose restrictions on the movement of a respondent 'behaving in an intimidatory manner' must be interpreted as requiring more than the mere presence of a respondent in a location which the respondent is otherwise permitted to attend and must involve a 'manner of conduct'. That does not follow as a matter of logic. Furthermore, such a restrictive interpretation would have the capacity to restrict the effectiveness of the Act.
In any event, as I explain below, I am satisfied that it was open to the magistrate to find that the appellant's presence in the park was not coincidental. It formed part of the appellant's pursuit of the complainant and in that sense his presence was conduct directed towards the complainant.
Ultimately, it did not appear to be in dispute that a breach of the VRO could not be established merely by proving the complainant was intimidated by the appellant's presence in the park on 10 February 2020. To establish a breach, it was necessary for the appellant's conduct, assessed objectively by reference to the ordinary person in the complainant's position, to be found to have been intimidatory. I interpolate that I accept the respondent's contentions to the effect that the term 'intimidatory' should be construed in a manner consistent with the definition of 'intimidate' in s 338D(1) of the Criminal Code and includes conduct that causes apprehension as well as fear.
The context in which the conduct of a respondent occurs is critically important. Context may be sufficient to render a respondent's presence in a certain location intimidatory. Depending on context there is no absolute requirement for the respondent to perform a positive act 'directed' to a complainant. In any event the complainant's evidence, which was accepted by the magistrate, was not that the appellant was merely present in the park, walking around and going about his business – the complainant's evidence was that the appellant was standing in the park and looking at the complainant. As I explain below this evidence is corroborated by the video taken on the complainant's phone.
I do not accept that there was an inconsistency between the magistrate's conclusion that the appellant did not have the intent to intimidate required to sustain a conviction under s 338E(1) and his Honour's conclusion that the appellant's presence in the park on 10 February 2020 was not 'co-incidental' as the appellant maintained. There is no inconsistency between a finding that the appellant did not intend to intimidate the complainant and a finding that he intended to be present on the park on 10 February 2020 as part of his pursuit of the complainant, that is, to watch the complainant or have some interaction with her as he had done on previous occasions rather than with the intention to intimidate the complainant even though, unintended by him his conduct might have that effect.
The magistrate's positive credibility finding in respect of the complainant and negative credibility finding in respect of the appellant and the persuasive force of the propensity evidence constitute significant difficulties for the appellant to overcome before he can convince this court that the magistrate must have entertained a reasonable doubt about the appellant's guilt. Further, the video recording made by the complainant (using her mobile phone) on 10 February 2020 provides support for the magistrate's finding. The complainant's evidence was that she saw the appellant watching her from the park as she walked along the road and started to film him. At 45 seconds into the recording the video shows the appellant standing in the park looking in the complainant's direction, at 60 seconds he can be seen in the same position and at 70 seconds he can be seen moving away. The appellant's evidence was to the effect that he 'bolted' in the opposite direction when he saw he was being filmed or photographed.
When the appellant's conduct is assessed in the context of the history of his conduct towards the complainant I am comfortably satisfied that it was open to the magistrate to conclude beyond reasonable doubt that the appellant breached the VRO by behaving in an intimidatory manner. In reaching that conclusion I accept the contentions advanced by the respondent summarised by me at [32(i)].
The appellant's ground of appeal in respect of the conviction for breaching the VRO has no reasonable prospect of success and leave to appeal in respect of it is refused.
The stalking offence
The appellant's counsel made no oral submissions in support of the application for leave to appeal in respect of the stalking conviction.
In summary the appellant's written submissions advanced two contentions. First, that the appellant's conduct involved chance encounters with the complainant and it was not open to the magistrate to be satisfied that the appellant had 'pursued' the complainant within the meaning of s 338D(1) of the Criminal Code. Secondly, even if the appellant did pursue the complainant, he did not do so in a manner that could reasonably be expected to intimidate, even though his conduct might be seen as 'belligerent and stubborn'.
Having regard to the whole of the evidence - in particular the propensity evidence and the appellant's calling out 'Hey, mamma' to the complainant on 23 January and 4 February 2020 - it was open to the magistrate to find that the appellant's interactions with the complainant were not chance encounters.
Viewed objectively from the standpoint of an ordinary person in the complainant's circumstances, I have no hesitation in concluding that the magistrate was correct to find that the appellant pursued the complainant in a manner that could reasonably be expected to intimidate.
The application for leave in respect of the stalking conviction does not have a reasonable prospect of success and leave to appeal is refused.
Conclusion
Leave to appeal is refused in respect of each ground of appeal. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
30 JULY 2021
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