Treloar v Police - [2018] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TRELOAR v POLICE
[2018] SASC 162
Judgment of The Honourable Justice Bampton
15 October 2018
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT
MAGISTRATES - ORDERS AND CONVICTIONS - SETTING ASIDE OR AMENDMENT OF ORDERS OR CONVICTIONS - CONVICTIONS - AMENDMENT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction for two counts of stalking contrary to s 19AA of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) on grounds that it was not open to the Magistrate to use an uncharged incident on 19 January 2015 as an element of either count and the evidence at trial did not establish the communications were made “in a manner that could reasonably be expected to arouse apprehension or fear” – respondent conceded that each count contained inadequate particulars as neither particularised two or more separate occasions of prescribed conduct – respondent applied to amend the information to allege one count of stalking constituted by prescribed conduct on 19 January 2015 and 19 September 2015 – appellant opposed the inclusion of the incident on 19 January 2015 as a particular of the charge – whether permission to amend the Information should be granted – whether the voicemail messages left on 19 September 2015 or 20 September 2015 proven in the Magistrates Court are capable of constituting one offence of stalking contrary to s 19AA of the CLCA.
HELD: The voicemail messages left on 19 September 2015 and 20 September 2015 proven in the Magistrates Court are capable of constituting one offence of stalking contrary to s 19AA of the CLCA. Noting that the appellant conceded he would not be prejudiced if the Information were amended to allege one count of prescribed conduct comprising the voicemail messages left on 19 September 2015 and 20 September 2015, the Court makes the following orders:
1. The time within which to appeal is extended to 19 February 2018.
2. Appeal allowed.
3. The conviction recorded on 24 November 2017 on count 2 on the Magistrates Court Information dated 23 December 2015 is set aside.
4. The sentence imposed by the Magistrates Court on 24 November 2017 is set aside.
5. The respondent is permitted to delete count 2 on the Magistrates Court Information dated 23 December 2015 and to amend count 1 to allege one count of stalking against s 19AA of the CLCA as follows “On 19 September 2015 and on 20 September 2015 at Wingfield in the said State stalked another person namely Jeremy Oaten”.
6. The conviction recorded on 24 November 2017 on count 1 is varied to record a conviction on count 1 on the Information dated 23 December 2015 as amended pursuant to order 5 above.
7. The appellant is resentenced on count 1 to two months’ imprisonment to commence on 15 October 2018 and be served concurrently with the sentence imposed by the District Court on 7 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Treloar v Police [2018] SASC 162
Case: [2018] SASC 162
Decision Date: 15 October 2018

CaseChat Overview and Summary

The appeal in Treloar v Police involved the appellant’s conviction for two counts of stalking, pursuant to section 19AA of the Criminal Law Consolidation Act 1935 (SA). The appellant contested the conviction on two primary grounds: first, that it was not permissible for the Magistrate to rely on an uncharged incident occurring on 19 January 2015 as part of the stalking charges; and second, that the evidence presented did not demonstrate that the communications made were “in a manner that could reasonably be expected to arouse apprehension or fear.” The respondent conceded that the charges lacked adequate particulars, as they did not specify two or more separate occasions of the prescribed conduct. The respondent sought to amend the information to consolidate the charges into one count of stalking, alleging incidents on 19 January 2015 and 19 September 2015. The appellant opposed the inclusion of the 19 January 2015 incident. The central issues before the court were whether permission to amend the information should be granted and whether the voicemail messages left on 19 and 20 September 2015 constituted one offence of stalking under section 19AA of the CLCA.

The court meticulously reviewed the evidence and listened to the voicemail recordings to assess whether the communications could reasonably be expected to evoke apprehension or fear in the complainant, Mr Oaten. The court found that the messages were disparaging, patronising, and disingenuous, and contained hostility and veiled threats. Given the context of the fractured relationship and the timing of the messages, the court determined that they could reasonably be expected to arouse apprehension or fear in Mr Oaten. The court held that the appellant’s communications with Mr Oaten, made on at least two occasions, were in a manner that could reasonably be expected to arouse apprehension or fear, fulfilling the criteria for an offence of stalking under section 19AA of the CLCA.

As a result, the court varied the conviction on count 1, aligning it with the amended information dated 23 December 2015. Additionally, considering the appellant’s subsequent sentencing by the District Court for other offences, the court addressed the implications for the disposal of this matter. Treloar was sentenced to 16 months’ imprisonment with a non-parole period of nine months, with the sentence to commence from 29 March 2018.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Treloar contended that Mr Oaten’s evidence that he was frightened was his personal subjective view and is irrelevant. He submitted that the question of whether the communication would reasonably be expected to arouse apprehension or fear is be determined objectively by assessing what was said.Conclusion In considering this matter I have read the evidence in its entirety. I have also listened to the recordings of the messages left on 19 and 20 September 2015. The Magistrate was correct to characterise the 19 and 20 September 2015 voicemail messages as reasonably expected to evoke apprehension or fear in Mr Oaten. The 19 September 2015 message left by Mr Treloar accused Mr Oaten of stealing $1.2 million, ridiculed Mr Oaten’s sex life, expressed an intention to reclaim his family’s missing millions, and accused Mr Oaten and his brother of making death threats to his father and then framing him for that conduct. Mr Treloar also accused Mr Oaten and his brother of having motive to make the alleged death threats. He then said, “Also I think we should let bygones be bygones and me and my mate will take you fishing”. In the 20 September 2015 message Mr Treloar again accused Mr Oaten of having “ripped off $1.2 million”. He also made reference to where Mr Oaten lives, and referred to his unnamed “best mate” coming over to show Mr Oaten the “deep water fishing”. He then instructed Mr Oaten, “don’t contact my dad. If you’re sending death threats making it look like me” and then asserted that “none of these fucking messages have been threatening”. Both messages were, on my assessment, disparaging, patronising and disingenuous. The purported expressions of concern and letting “bygones be bygones” do nothing to conceal the hostility and threats. Both messages, considered in context against the background of the fractured friendship and left very soon after Mr Oaten gave his statement to police in August 2015 and just before the 21 September 2015 court hearing, were communications that could reasonably be expected to arouse apprehension and fear in Mr Oaten. I am satisfied that Mr Treloar communicated with Mr Oaten by telephone on at least two occasions. He did so in a manner that could reasonably be expected to arouse apprehension or fear in Mr Oaten and he intended to cause serious apprehension or fear. The 19 and 20 September 2015 voicemail messages proven in the Magistrates Court are capable at law of constituting an offence of stalking contrary to s 19AA of the CLCA. Accordingly, the conviction recorded on 24 November 2017 on count 1 is varied to record a conviction on count 1 on the Information dated 23 December 2015 as amended pursuant to the orders in [55] of these reasons.Resentencing Following the hearing of this appeal, Mr Treloar was sentenced for other offending by the District Court on 7 September 2018 to 16 months’ imprisonment with a non‑parole period of nine months. The sentence was ordered to commence on 29 March 2018, when Mr Treloar was taken into custody. His non-parole period expires on 29 December 2018. Accordingly, I heard further submissions regarding the effect of the immediate custodial District Court sentence on the disposal of this matter.

Ratio Decidendi

Legal Principle Established

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