Wild v O'Neill - [2012] NTSC 39

Wild v O’Neill [2012] NTSC 39
PARTIES: WILD, Stephen Leslie

v
O’NEILL, Julie

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 14 of 2012 (21136885)
DELIVERED:   8 June 2012
HEARING DATES:   18 May 2012
JUDGMENT OF:   MILDREN J
CATCHWORDS:

CRIMINAL LAW — Justices Appeal – Stalking – elements of the offence – whether offence made out – s 189 Criminal CodeAct
STATUTORY INTERPRETATION – s 189 Criminal CodeAct – Stalking – “or otherwise contacting the victim” – whether ejusdem generis
WORDS AND PHRASES -- Stalking – “surveillance” – “repeated instances or a combination of” – “loitering” – “frequent” – “or otherwise contacting the victim” – s 189 Criminal Code Act
Criminal Code Act
Hansard, Debates 289 November 2001
Samuels v Stokes (1973) 130 CLR 490; followed
REPRESENTATION:
Counsel:
Appellant:   B. Taylor
Respondent:   C. Henderson
Solicitors:
Appellant:   De Silva Hebron
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:   11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wild v O’Neill [2012] NTSC 39
No. JA 14 of 2012 (21136885)
BETWEEN:

STEPHEN LESLIE WILD

Appellant

AND:

JULIE O’NEILL

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 8 June 2012)

The appellant was originally charged on information with five counts of stalking, contrary to section 189(2) of the Criminal Code Act (NT). The maximum penalty for the offence is imprisonment for two years. This is not an indictable offence and, therefore, not capable of being brought by way of information. The prosecutor applied to amend the charge sheet to a complaint. This was not objected to by counsel for the appellant, and the learned Magistrate treated the information as a complaint accordingly. The first two counts, being out of time, were withdrawn. The trial then proceeded on the remaining three counts.
The learned Magistrate found the appellant guilty on Counts 3 and 4, but His Honour dismissed the charge in relation to Count 5. His Honour convicted the appellant on each count and imposed an aggregate fine of $700.00 and, in addition, placed the appellant on a good behaviour bond for 18 months, subject to conditions.
The appellant has appealed against his findings of guilt only, on two grounds. The first ground complains that the learned Magistrate erred in his construction of section 189 of the Criminal Code. The second ground complains that the offences were not proved.
Section 189(2) provides that a person who stalks another person is guilty of an offence. Section 189(1), which provides what is, in effect, a definition of what is meant by “stalk”, is in the following terms:
(1)A person (the offender) stalks another person (the victim) if the offender engages in conduct that includes repeated instances of or a combination of any of the following:
(a) following the victim or any other person;
(b) telephoning, sending electronic messages to, or otherwise contacting, the victim or another person;

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.

Continue reading Wild v O'Neill

Details

AGLC: Wild v O’Neill [2012] NTSC 39
Case: [2012] NTSC 39
Decision Date: 08/06/2012

CaseChat Overview and Summary

In the case of Wild v O'Neill, the appellant, Wild, sought an appeal against a conviction for stalking under section 189 of the Criminal Code Act. The trial judge had found Wild guilty based on a series of incidents involving repeated contact with the victim, O'Neill, including telephone calls and in-person encounters. The appellant argued that the lower court had erred in its interpretation of the stalking offence, particularly in relation to the phrase "or otherwise contacting the victim."

The primary legal issue before the court was the interpretation of section 189 of the Criminal Code Act, specifically whether the term "or otherwise contacting the victim" within the context of stalking included a broad range of conduct beyond surveillance, loitering, or frequent contact. The court had to determine if the phrase should be interpreted narrowly in line with the other specified behaviours or more broadly as any form of contact. Additionally, the court considered whether the term should be interpreted using the rule of ejusdem generis, which would limit the scope of "or otherwise contacting the victim" to the types of behaviour explicitly listed.

The court held that the phrase "or otherwise contacting the victim" should be interpreted broadly, encompassing any form of contact that could be considered stalking. The court rejected the argument for a narrow interpretation using ejusdem generis, finding that such an approach would unduly restrict the scope of the stalking offence. The court emphasised that the term was intended to cover a wide range of behaviours that could be considered stalking, provided they met the criteria of being repeated and causing fear or harassment to the victim. The appeal was dismissed, and the conviction upheld, as the court found that the trial judge had correctly applied the law in interpreting the stalking offence.

The final orders of the court confirmed the conviction and sentence imposed on the appellant. The court did not alter the findings of the trial judge regarding the elements of the stalking offence or the evidence presented. The appellant's appeal was therefore dismissed without merit, and the conviction for stalking remained intact.

Orders