Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

R v Tarasiuk

 

[2019] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tarasiuk [2019] QCA 165

PARTIES:

R

v

TARASIUK, Steven John

(appellant/applicant)

FILE NO/S:

CA No 296 of 2018

DC No 2553 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 November 2018; Date of Sentence: 9 November 2018 (Dearden DCJ)

DELIVERED ON:

30 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2019

JUDGES:

Gotterson and Morrison JJA and Bowskill J

ORDERS:

  1. The appeal against conviction is dismissed.
  2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – STALKING – where the appellant was found guilty of one count of unlawful stalking – where the appellant was sentenced to 15 months’ imprisonment, suspended after five months, with an operational period of four years – where the appellant was also the subject of a restraining order – where the offending conduct arose out of the appellant’s behaviour towards his neighbours during the construction of his house on a vacant block of land between the two sets of neighbours – where various complaints were made by both complainants to various bodies, including the Brisbane City Council, the Queensland Building and Construction Commission (QBCC) and the Police – whether the conduct of the appellant amounted to unlawful stalking

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant challenges his conviction on the ground that the verdict was unreasonable and not supported by the evidence – where it is submitted that the conduct of the appellant could not have, in a legal sense, risen to the level contemplated by the legislation with respect to an offence of stalking – where it was contended that if it was found that the conduct of the appellant was capable of being found to be a count of stalking, then the appellant’s conduct could not have been found to be stalking in this case, as the conduct could only have risen to the level of nuisance and nothing more – where it was contended that the particulars and the evidence did not satisfy the elements of stalking under s 359B of the Criminal Code – whether the conduct of the appellant satisfied the elements of stalking under s 359B of the Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant contends that the prosecution’s indication that it no longer relied on Particular 13 denied the opportunity of a fair trial, thereby causing a miscarriage of justice – where Particular 13 concerned a CCTV camera which appeared mounted to the wall of the appellant’s house, and apparently pointing into the complainant’s bedroom – where independent evidence at the trial from the person who installed the camera established that even though it appeared to others that it might be pointing at the bedroom, it was not, and in any event it was not operational at any relevant time – where the appellant argues that when the abandonment of Particular 13 was dealt with in the summing up, the approach contained errors – where it is contended that the learned trial judge failed to properly instruct the jury – where it was further contended by the appellant that one possibility was that the learned trial judge thought he had given a direction in the agreed form, when he had not – where the learned trial judge asked the jury to confirm whether they had deleted Particular 13 from their schedules – whether there was any error or misdirection by the learned trial judge – whether there was a miscarriage of justice

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – DISCHARGE OF JURY – where the learned trial judge received a note from one of the jurors, after he had commenced summing up, asking to be excused citing personal reasons affecting the juror’s ability to reach a verdict – where the learned trial judge observed that the issue with the juror was whether the juror could be impartial in accordance with their oath or affirmation – where the learned trial judge asked the juror whether they could be impartial in the trial, the response to which was “No” – where the juror was discharged and replaced with one of the reserve jurors – where the appellant contends that the learned trial judge should have discharged the whole jury – whether there was a basis to conclude that the balance of the jury could not discharge their task impartially, and properly – whether the learned trial judge should have discharged the entire jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant contends that the sentence which was imposed was manifestly excessive – where the appellant was sentenced to 15 months’ imprisonment, to be suspended once he had served a period of five months – where a restraining order was made prohibiting the appellant from contacting, either directly or indirectly, or from approaching nominated members of both complainant families, their residences or place of work, for a period of 10 years – where it was contended that the approach the learned trial judge had taken was “too harsh” – where the appellant submits that the remarks of the learned trial judge in respect of lack of remorse and an offer of mediation made by the appellant were not sound – where it is contended that the sentence imposed upon the appellant should not have been any more than six to nine months wholly suspended – whether the sentence imposed upon the appellant was manifestly excessive

Criminal Code (Qld), s 359A, s 359B(c)(vi), s 359D(c)(i), s 359C

R v Czajkowski (2002) 137 A Crim R 111; [2002] NSWCCA 530, cited

R v Heckendorf [2017] QCA 59, cited

R v Roberts [2005] 1 Qd R 408; [2004] QCA 366, cited

R v Tout [2012] QCA 296, cited

Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, cited

COUNSEL:

S Di Carlo for the appellant/applicant

M T Whitbread for the respondent

SOLICITORS:

Howden Saggers Lawyers for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
  2. [2]
    MORRISON JA:  After a 24 day trial in the District Court, the appellant was found guilty of one count of unlawful stalking.  The following day (9 November 2018) he was sentenced to 15 months’ imprisonment, suspended after five months, with an operational period of four years.  He was also the subject of a restraining order.
  3. [3]
    The offending conduct arose out of the appellant’s behaviour towards his neighbours during the construction of his house on a vacant block of land between the two sets of neighbours.  That block of land was created when Mr and Mrs Duetz subdivided their block into two.  They continued to live on one block selling the other to the appellant.  On the other side of the appellant’s block lived the Coates family.
  4. [4]
    During the construction of the appellant’s home there were various complaints made by both the Duetz and Coates families to various bodies, including the Brisbane City Council, the Queensland Building and Construction Commission (QBCC) and the Police.
  5. [5]
    The appellant was originally charged with four counts of unlawful stalking, two of them with a circumstance of aggravation, namely violence.  Counts 1 and 2 related to Mr and Mrs Coates, and count 3 concerned one of their children.  Count 4 concerned Mrs Duetz.
  6. [6]
    On day 13 of the trial counts 2 and 3 were discontinued.  On day 17 of the trial the circumstances of aggravation for count 4 were partially discontinued.  After the jury retired to consider its verdict, on day 22, the circumstance of aggravation on counts 1 and 4 were amended and then discontinued on day 24.  Finally the appellant was acquitted on count 1 and found guilty on count 4.
  7. [7]
    The appellant challenges his conviction on three grounds:
    1. (a)
      that the verdict was unreasonable and not supported by the evidence – ground 2;
    2. (b)
      the prosecution’s indication that it no longer relied on particular 13 denied the opportunity of a fair trial, thereby causing a miscarriage of justice – ground 3; and
    3. (c)
      the trial judge erred in discharging a juror and then not discharging the whole jury – grounds 4 and 5.
  8. [8]
    The appellant challenges the sentence imposed upon him on the ground that it was manifestly excessive – ground 1.

Particulars of the charge

  1. [9]
    The jury were provided with a schedule of the acts of stalking relevant to each count.  What follows below are those related to Mrs Duetz in respect of count 4 which resulted in a verdict of guilty.[1]

No.

Date

Particulars

1

11.04.13

The appellant and a workman (Owen), wrote the words “WANKER NAYBORS” [sic] on the Duetz’s retaining wall by way of graffiti.

2

25.06.13

At 8.30 am Mrs Duetz was eating breakfast at her kitchen bench near the window when the appellant appeared at the boundary wall standing on a mound of dirt, about one to two metres from where she was seated, leaned on the wall and stared at her for approximately five minutes.

3

25.06.13

At 2.00 pm, Mrs Duetz parked her car in the driveway and noticed the appellant standing behind her on the footpath, staring.  He followed her a distance of about two metres until she reached her gate.

4

25.06.13

At 2.30 pm, Mr Duetz confronted the appellant about his behaviour half an hour previously.  The appellant behaved aggressively and acted like he was pumped up and ready to punch Mr Duetz.  The appellant called him a paedophile.

6

28.08.13

Mrs Duetz moved the appellant’s bins from her footpath, when he ran up the road in a very aggressive manner, grabbed his bins and threw them across the footpath at Mrs Duetz’s feet.  He then leaned over the fence glaring at her.

7

10.10.13

At about 9.00 pm Mr and Mrs Duetz were watching TV, and heard a noise around the side of the house coming from the appellant’s site.  They went to the verandah to check the noise and the appellant, who was next door, yelled “fuck off” and turned the hose on them, wetting them slightly.  A heated discussion began between the Mr Duetz and the appellant.  The appellant told Mr Duetz to come down into the yard with him.  Mr Duetz refused.  The police arrived and spoke with Mr Duetz.

  1.  

13.12.13

Mr Duetz arrived in a taxi to pick up Mrs Duetz, to go to a Christmas party.  He attended to some bins on the footpath.  As they got in the taxi, the appellant came running up, stood in Mr Duetz’s face, taunting him in an aggressive manner, apparently wanting to fight him.

  1.  

15.12.13

- 01.06.15

Over an 18 month period, the appellant would suddenly appear at the boundary fence, and often call out “bitch” or cough to get her attention and then call out “bitch”.

  1.  

End 05.14

- 01.06.14

The appellant arrived by car and stood on the scaffold immediately above Mrs Duetz and her daughter, staring at them for a number of minutes, before leaving and going elsewhere making loud banging noises.

  1.  

04.06.14

In the morning Mrs Duetz parked her car in her driveway when the appellant suddenly appeared a few metres away on the road, and followed her very closely in an intimidating manner, staring at her but without talking to her.

  1.  

04.06.14

In the afternoon Mrs Duetz went out to the clothesline when she thought the workmen had left the site.  The appellant and the tradesmen appeared on scaffolding and spoke in loud voices including the derogatory remarks, “never have sex”.

  1.  

09.07.14

At 9.10 am Mrs Duetz was vacuuming her bedroom when the appellant came onto his scaffolding and stood about two metres away, staring at her, until she moved away and shut the blinds.

  1.  

10.07.14

At 7.25 am Mrs Duetz was on the driveway with her dog.  The appellant left his worksite and approached her for no apparent purpose, and stood near her.

  1.  

23.07.14

At 4.00 pm Mrs Duetz was in her back garden when the appellant walked across the yard towards her.  She screamed at him to get away.  He ignored her and kept walking until he was at the boundary only a few feet away from her.  She told him to get away.  He laughed at her and she had to pass within inches of him to gain entry to her house.

  1.  

24.07.14

At 7.00 am Mr and Mrs Duetz heard the appellant and his tradesmen yelling out “Rape, rape” in loud voices and laughing, apparently with reference to the events the previous day.

  1.  

24.07.14

At 11.00 am the appellant and four tradesmen stood on the footpath of the entrance to the Duetz’s house, looking in, staring and laughing among themselves.

  1.  

07.11.14

At 4.00 pm Mrs Duetz walked up the middle of the road and passed the appellant’s worksite, while the appellant and a tradesman were on the footpath.  One of the appellant’s tradesmen drove over the crest of the hill and the appellant yelled out “Hit her, hit her!”

  1.  

01.12.14

Mrs Duetz was outside with her son on the footpath, with a tow truck driver delivering a car.  During a heated exchange between the appellant and the tow truck driver, the appellant yelled at Mrs Duetz “Shut up you fucking ugly dog bitch”.  The appellant came down to the footpath and stood close to Mrs Duetz’s son in a confrontational manner and said “Your parents better have a lot a money and be prepared to go to court” and also “[If] your parents think they can go after my building licence then good on them, because as soon as I [am] taken off this job as the primary builder, that’s when things will escalate and get a whole lot worse”.

  1.  

13.12.14

On this Saturday Mr Duetz was mowing his lawn when the appellant walked inside and out, taking photographs of them.

  1.  

10.09.15

Mrs Duetz was leaving the Coates’ place at 9.45 pm at night when the appellant suddenly appeared out of the night and walked very close by on the road.

  1.  

17.10.15

The appellant erected a two metre by two metre sign on his fence which read “AS SEEN ON ACA Ch 9” in an effort to deter prospective buyers of the Duetz’s property.

  1.  

31.10.15

The appellant deliberately threw rubbish along the adjoining boundary line when the Duetzs were preparing their home for inspection of sale.

  1.  

18.11.15

Mrs Duetz was informed by Patrick Dixon (a real estate agent) that the appellant sent the agent an email, falsely stating that a “neighbourhood dispute” notice had been lodged by him with the Brisbane City Council, and that the agent had a duty to disclose this information to potential purchasers.

Analysis of evidence

  1. [10]
    For the purposes of the current appeal it is only necessary to examine the evidence of some of the witnesses who were called during the trial.  The evidence given by members of the Coates family related mainly to other counts which were either discontinued or upon which the appellant was acquitted.  In what follows I intend to refer only to those witnesses whose evidence touches upon Count 4, upon which the appellant was found guilty.

Evidence of Mrs Duetz

  1. [11]
    Mrs Duetz lived with her husband and three children in the property next to that owned by the appellant, and upon which he was constructing a house.  She gave evidence that she had been a solicitor[2] and town planner, but as at the time of the trial had not worked for a number of years.  She gave some general evidence about the subdivision of the block upon which they lived, and meeting the appellant for the first time when he sought a copy of their engineering plans prior to commencing his construction.  She also gave some general evidence about the fact that she spoke to a private certifier from the Council about some concerns she had as to whether the construction complied with various codes and with the Council approval.[3]
  2. [12]
    In her evidence in chief Mrs Duetz gave fairly precise evidence in respect of each of the particulars in the schedule above.  The precision of her recollection extended to the particular dates and the identification of various matters by photograph.  As well she described her reaction to the various particularised pieces of conduct.  I will summarise them as briefly as maybe done.
  3. [13]
    Particular 1: she described the writing on the wall and identified Exhibit 72 as the photograph of the graffiti.  She said it made her feel “very unsettled as to who our neighbour is going to be if someone would do that”.[4]
  4. [14]
    Particular 2: she described that the appellant had an excavator which was digging a deep cut beside the Duetz’s retaining wall.  She was watching in case something happened to that wall.  The next morning she was sitting at her kitchen bench having breakfast when she suddenly realised that the appellant was standing on the mound of earth, above the wall, leaning on it and “watching me have my breakfast, which made me feel very, very unnerved”.  She finished eating her breakfast and at that point the appellant was “still there just staring at me”.[5]  He was staring at her for about five minutes which made her feel “very intimidated” because he was only a metre or so away from her house.[6]
  5. [15]
    Particular 3: that afternoon she said she was getting out of her car in the driveway when the appellant walked up behind the car and stood there while she got out.  He then followed her along the footpath right to her gate.  She said that “really scared me”.[7]
  6. [16]
    Particular 4: Later that afternoon Mrs Duetz said her husband called the appellant over to have a conversation with him.  The appellant was “very confrontational and he was sort of talking up to [Mr Duetz]”.  She said that the whole day had been “very frightening”, and that the confrontation made her concerned about what would happen with herself, and she was “also frightened of anything physical happening to my husband”.[8]
  7. [17]
    Mrs Duetz gave general evidence that the appellant’s worksite was quite unruly, with a lot of swearing, yelling and loud music.  She said that they would often find rubbish in their front courtyard after the appellant’s workmen had been there.  She said she was very scared by the behaviour of the workmen because she was usually at home on her own.[9]
  8. [18]
    Particular 6: Mrs Duetz said that the appellant left his overflowing bins right on the curb outside their house on the crest of the road.  Because she was concerned about the danger of them in that position, where people would have to walk around them, she would pull the bins up against the appellant’s fence.  She said that she had backed her car out of the garage and, seeing that the bins were back out on the footpath, went over to put them back against the fence.  The appellant “came racing up the footpath really aggressively towards me, grabbed two bins and just flung them down at my feet on the footpath”.  When she tried to move to the wall again the appellant again grabbed one of the bins and “flung it in front of me”, and put his arms across the top of the bin and glared at her.  She said she was “just shaking like a leaf” and “very, very frightened”.[10]
  9. [19]
    Mrs Duetz was shown CCTV footage which revealed the occasion when the appellant appeared coming out of his property and threw the bins on the footpath.[11]
  10. [20]
    Particular 7: Mrs Duetz said that she’d heard a noise coming from the appellant’s building site at night and she and her husband went to investigate.  It turned out to be the appellant and his wife, who were hosing a concrete slab.  When Mr Duetz put the torch on them to see who it was, the appellant turned around and said “fuck off”, and “starting trying to hose us with the hose”.[12]  A heated exchange followed between Mr Duetz and the appellant with the appellant inviting to him “come down here and take it up with me”.  Mr Duetz refused.  She said that the appellant was “spraying us with the hose” and she and her husband “got a little bit of splash”.[13]  She said she was “very frightened because he was very volatile”.
  11. [21]
    Particular 8: Mrs Duetz said that her husband arrived in a taxi to collect her and go to a function.  He buzzed from the front gate and as Mrs Duetz was walking out to the gate she could see the appellant “right up into [her husband’s] face”.  She went outside and the appellant was taunting her husband.  They were in the middle of the road and the appellant was “right up close”.[14]  She identified an edited video clip showing some of the events of that confrontation and she said she had been very frightened because of the “volatility of it and the aggression of it”.[15]
  12. [22]
    Particular 9: Mrs Duetz said that the building under construction was big and bulky, and only about a metre from their boundary.  Scaffolding had been erected around the building and she “never went out during the day … I felt like a prisoner in my own home”.[16]  She described a number of occasions when she would go outside and hear the word “bitch” from the appellant, who would either be on the scaffolding or on the fence line or the boundary line at the back garden.  He would pretend to cough but with the word “bitch” at the end.[17]  She said that behaviour made her feel “totally frightened”.[18]
  13. [23]
    Particular 10: On a Sunday when she thought no one was around the building site, Mrs Duetz and her daughter were pulling handfuls of nails out of the pond.  She said there was a cough above them on the scaffolding and she turned around to find the appellant there.  There was a bit of banging noise and he was “standing above us, staring down on us”.  She said that made her feel frightened and “we could just never get a break from him”.[19]
  14. [24]
    Particular 11: Mrs Duetz described “a particularly ghastly day”.[20]  She said she parked her car on the driveway and as she got out the appellant approached her and followed her to her front gate.  She said he was about a metre away from her and once she was inside she locked the front gate “while he was standing near me”.[21]  She said that the conduct made her feel frightened.
  15. [25]
    Particular 12: That afternoon when she was at the clothesline she heard two loud voices which, it transpired, was the appellant and his workman, Owen.  She said they were talking in loud voices and laughing and then she heard a loud voice say “never have sex”.  She felt “ridiculed, frightened, sick”.[22]
  16. [26]
    Particular 14: Mrs Duetz said she was vacuuming in her house and the appellant was on his scaffolding, standing about two metres away from her, “just standing and staring at me”.  Feeling frightened, scared and intimidated she put the blinds down and stopped vacuuming.[23]
  17. [27]
    Particular 15: The following day Mrs Duetz took her dog for a walk along the footpath.  She said by that stage she was “just so petrified” but her dog had to go to the toilet.[24]  As she walked up beside the wall the appellant came up the road, approached her and stood right there on the road.  He was only about a metre away and remained there, looking at Mrs Duetz, until she went inside.  She said that made her feel scared.
  18. [28]
    Particular 16: Mrs Duetz said she went to hose the lawn when she heard some loud music blaring out, making her look up.  She saw the appellant “walking across his back garden towards me”.  She screamed at him to go away and not come near her, but “he just kept walking towards me”.[25]  The appellant came right up to the wire boundary fence and stood there laughing at her while she had to walk past him to go back inside.  As for her reaction, she said “by this stage, I was just petrified”.[26]
  19. [29]
    Particular 17: This incident was the following morning.  Mrs Duetz said she and her husband were standing in the front courtyard of their house and they could hear the appellant and his workmen laughing and talking in loud voices.  Her husband had a conversation with them and then she heard the appellant yell out “Rape, rape”.[27]  She said that made her feel “scared and intimidated”[28]  She was certain that it was the appellant’s voice she heard.  The impact of the continual conduct was that the appellant seemed inevitably to be in the area when she went out, and she would wait until the tradesmen had left before she went out.  She felt that she was being watched because her house was all glass.[29]
  20. [30]
    Particular 18: Later that same day Mrs Duetz said that she was coming up the stairs towards the glass entry.  Out on the footpath at her fence was the appellant and four tradesmen, “all leering in and laughing and carrying on”.[30]  She could see them as she went up the stairs.  She felt very frightened and stayed inside all day.
  21. [31]
    Particular 21: Mrs Duetz said she walked past the appellant’s work site to the Coates’ house.  On her way back she noticed the appellant and his workmen on the footpath, packing up their vehicles.  She stepped onto the road so she did not have to walk onto the footpath, and as she walked up the road one of the appellant’s workmen came over the crest of the hill in a utility.  The appellant, who was still on the footpath, yelled, “Hit her.  Hit her”.  The incident made her feel very frightened as she thought she might get hit by the car.[31]
  22. [32]
    Particular 22: This incident was an occasion when a tow-truck had arrived at Mrs Duetz’s house and a vehicle was being unloaded from it.  The appellant came on to his front verandah and started calling out that he was going to report Mrs Duetz for blocking the road.  He starting filming with his phone.  The tow-truck driver took offence to the filming and there was an exchange of words between the tow-truck driver and the appellant.  Trying to diffuse things she turned to the appellant and said, “We’re only going to be a few minutes.  Mind your own business”.  The appellant responded, “Shut up you fucking ugly dog bitch”. There was then an exchange of words between the appellant and Mrs Duetz’s son.[32]  The incident made Mrs Duetz feel “very frightened and shaken”.[33]  The appellant told her son, “Your parents better have a lot of money and be prepared to go to court” and “[If] your parents think they can go after my building licence then good on them, because as soon as I am taken off this job as the primary builder, that’s when things will escalate and get a whole lot worse”.[34]  The comment to her son made her particularly frightened.[35]
  23. [33]
    Particular 23: Mrs Duetz said her husband was mowing the lawn in the back garden and she observed the appellant using his phone to film her husband.  It made her feel “intimidated”.[36]
  24. [34]
    Particular 25: Mrs Duetz said she was not sure of the exact date of this event but it occurred when they had been invited in to the Coates’ house for an evening drink.  On their way back they passed the appellant’s work site when “out of nowhere, [the appellant] appeared out of his driveway and … walked on the side of the road next to the footpath and walked past us”.[37]  She said there was no sign of any car or lights or anything to indicate that the appellant was around and he “appeared from his driveway and walked down in front of us down the road”.  At that point he was about a metre from them.[38]  Mrs Duetz said she felt frightened.
  25. [35]
    Particular 26: This incident occurred after the Duetzs decided to put their house on the market.  It had been listed with an estate agent and an inspection was due on that particular day.[39]  They saw that the appellant had erected a sign, painted on a white sheet on his fence, about two metres by two metres wide.  The sign said “AS SEEN ON ACA Ch 9”.[40]  Mrs Duetz identified Exhibit 52 as a photograph of the sign.  She described her reaction in these terms:[41]

“I was just beside myself by this stage. I just wanted to leave our beautiful family home. I just wanted to get away and it was like he was even stopping us leaving. You know, we built that house as our family home, our forever home, and … we had to leave it.”

  1. [36]
    Particular 27: Mrs Duetz could remember the next event which occurred on another day of inspections for their house.  The appellant had previously thrown paint tins and building material along the fence line, and put on blaring radios when there were inspections.  On this occasion it was rubbish which he had thrown along the base of the property.  The rubbish had not been there prior to that day.[42]
  2. [37]
    Particular 30: Mrs Duetz identified Exhibit 64 as an email they received from Mr Dixon, the real estate agent who was selling their house.  It contained the false assertion that a neighbourhood dispute notice had been lodged with the Brisbane City Council.  Mrs Duetz described her reaction as “I couldn’t understand why this was happening … We were trying to sell our property. We just wanted to move away. It’s all we wanted to do.”[43]

Cross examination of Mrs Duetz

  1. [38]
    The course of cross-examination of Mrs Duetz involved putting a number of propositions to her, all of which she denied, including that:
    1. (a)
      she was a liar who had made all the allegations up;[44]
    2. (b)
      she colluded with staff at the QBCC to make sure that the appellant lost his licence;[45]
    3. (c)
      she had looked up the provisions of the Criminal Code in order to determine what was required for the purposes of stalking, and told other witnesses what to say;[46]
    4. (d)
      when the appellant had come to construct the premises next door she saw him as a “bogan” and a “moron”;[47]
    5. (e)
      she was determined to prevent the appellant from building the house at all costs;[48] and
    6. (f)
      it was Mrs Duetz who had put bins in front of the appellant’s driveway on a regular basis to taunt him.[49]
  2. [39]
    It was suggested to Mrs Duetz that she persisted in complaints to the Council about the construction of the appellant’s house on a misguided or wilfully wrong basis because she wanted the project stopped.  In response Mrs Duetz separated a number of issues.  In terms of the plans which had been certified by the private certifier and which had gone to Council, she said a submission was put in outlining her concerns about bulk and size of the property.  However, once the Council had allowed the construction to be built, “that was the end of it”.[50]  She said that was a different issue from one which they did pursue, concerning the construction of retaining walls and platforms near the river in the riparian zone.[51]  As to that Mrs Duetz said that the Council inspectors came out and looked at the construction and informed her and her husband that it was being built generally in accordance with a proposal.  Upon being told that Mrs Duetz said that they did not pursue the issue any further.[52]  A third issue was the sediment control in flow-off to the river.[53]  As to that she could not recall the response of the Council.
  3. [40]
    Mrs Duetz explained that the concerns she raised first with the private certifier and then the Council were because they did not have a copy of the plans and therefore could not determine for themselves just how big and bulky the construction was going to be.[54]
  4. [41]
    She was cross-examined about a complaint or statement she had made to the QBCC on 11 February 2016, in which she had referred to the fact that in May and June 2013 Council inspectors had “conducted various inspections of the site and also inspected myself and my husband regarding our concerns”.[55]  The thrust of the cross-examination was to ask why she had not informed the QBCC that the Council had dismissed all of her complaints.  Her response was that once the Council had made its decision it was no longer an issue, and “that was the end of it”.[56]  Mrs Duetz said after the Council had announced its decisions she did not think about it and that was the reason why it might not have been mentioned to the QBCC.
  5. [42]
    Mrs Duetz also distinguished a particular issue she raised with the local Councillor.  That concerned information from the appellant that he was going to build a multi-story building with a lift.  She wanted her Councillor to know their concerns, and he suggested a formal submission be put in.  That was done.  Ultimately she received a letter back from the Councillor indicating that he did not support their objections.[57]
  6. [43]
    This line of cross-examination was all directed to the proposition that Mrs Duetz was determined to prevent the appellant’s construction at all costs.  It was suggested that when she did not get her own way that was when they decided to sell up and leave.  Her response was:[58]

“When we decided to sell up and leave was years later after years and years of me constantly being afraid, and being followed and having [the appellant] appear whenever I went outside.  It had nothing to do with the building.  We accepted the building.  That’s life.  It’s a big building beside us; we accepted that.  It was what I was then having to endure after and during the building process.”

  1. [44]
    Mrs Duetz denied the repeated suggestion that she was trying to stop the project at all costs.  She was referred to an occasion when the Duetzs and the Coates met their local member of Parliament as well as the local Councillor.  It was suggested she was still trying to stop the project at that point.  She responded:[59]

“We weren’t trying to stop the project.  The project had been approved.  We realised that at June – whenever it started.  What we were voicing our concerns was the practices of the building site.  The constant dust.  The constant swearing.  The constant loud noises.  That was after our dog had been sprayed with the thing and also the fact that I was not feeling safe in my home.”

  1. [45]
    After exploration of the matters referred to above for some considerable time, the cross-examination turned to the various particular events the subject of the charge.  As to Particular 1 and the graffiti saying “WANKER NAYBORS”, Mrs Duetz said that her son drew her attention to it.  She was cross-examined about a police statement in which she said that Mrs Coates had told Mrs Duetz that she (Mrs Coates) had observed the appellant writing on the wall.[60]  Mrs Duetz said she did not know who wrote on the wall and all she was told by others was that they had observed the appellant and another male writing on the wall.[61]
  2. [46]
    As to event Particular 7, Mrs Duetz said that during that event she had a conversation with the appellant’s wife.[62]  She said she could not comment on the proposition put to her, that the torch held by the husband shone into the eyes of the appellant.  It was put to her that the appellant did point the hose in the direction of Mrs Duetz and her husband, but that because of the distance there was no chance of water coming near them.  Mrs Duetz accepted that the hose was pointed in their direction, and said “… we weren’t hosed but I remember there were bits of water, yes”.[63]  It was also put to Mrs Duetz that the appellant did say the words “fuck off”.
  3. [47]
    It was put to Mrs Duetz, and denied, that the appellant’s bins had never been placed outside her house.[64]  In that regard Mrs Duetz also denied the suggestion put to her that she would take the empty bins and put them in the appellant’s driveway so that nobody could get in,[65] and do that on a regular basis.  It was then put to her, and denied, that the video of the appellant moving bins was on an occasion when she had put the bins in the driveway and blocked his path.[66]
  4. [48]
    Cross-examination turned to Particular 22.  It was put to Mrs Duetz that the appellant never said “Shut up you fucking ugly dog bitch”.  She reaffirmed that he did.[67]  She also said that she had no recollection of an exchange between her son and the appellant in which the appellant said he was taking a photograph because Mrs Duetz’s activities were blocking the road and there was one rule for the Duetzs and one rule for the appellant.[68]  Mrs Duetz again rejected the suggestion that the appellant at no time said anything rude or swearing.  She affirmed that she saw her son talking to the appellant but did not hear their conversation.[69]
  5. [49]
    Cross-examination turned to Particular 25.  Mrs Duetz reaffirmed her evidence-in-chief.[70]  It was not suggested at that point that the event did not happen, but rather cross-examination was directed to whether it had been repeated on other occasions.
  6. [50]
    Cross-examination then turned to Particular 8.  As to that event the video in Exhibit 77 was played to her again.  She was asked if she saw that the appellant had his arms crossed when he and Mr Duetz were standing face to face.  Mrs Duetz said she had no recollection of their stances.  She said she did not see her husband kick a garbage bin, nor the appellant say that her husband was littering.  It was put and denied that while the appellant was in the processes of speaking to the taxi driver Mrs Duetz had called out to the taxi driver “He is a bogan and a loser”.[71]  She denied the suggestions that her husband had pushed the appellant in the chest on two occasions or stood over him.[72]

Evidence of Mr Duetz

  1. [51]
    Mr Duetz gave evidence of events concerning the appellant that started in 2013, when they found chicken bones being thrown onto their property and other things thrown into their pool.  He said that he was the person who took the photograph of the sign “WANKER NAYBORS”, saying that it was prominent and could be seen from the boundary.
  2. [52]
    He referred to Particular 4, which concerned a confrontation between himself and the appellant about the appellant’s behaviour towards Mrs Duetz.  He said he beckoned the appellant to come to the fence line and to speak to him, and then told him that he did not want the appellant to approach his wife or children.[73]  He said the appellant was aggressive saying, “Well, what are you going to do about it?”  The appellant had his arms folded and came within inches of Mr Duetz’s face.[74]  He said that as a consequence he approached the police to give them an account of what had happened.
  3. [53]
    He said there was an ongoing problem with rubbish being left on the footpath, together with old chairs and paint tins, and rubbish bins being thrown onto the footpath with rubbish hanging out.  He said it was an ongoing scenario that was very difficult to deal with.[75]
  4. [54]
    Mr Duetz referred to Particular 7, saying that he and his wife were watching TV at about 9.30 pm one night when they heard voices on the building site.  He got a torch to see what was going on and when he shone the torch towards the building site he saw the appellant and his wife there.  He said the appellant told him to “fuck off” and, though he couldn’t remember the other words, it was “a whole range of words to that effect”.[76]  Mr Duetz told the appellant to settle down as he was just inquiring what was happening because of the noise.  He said the appellant continued to say “fuck off” and then the appellant was “trying to, you know, hose us in that position”.  He explained that the water came up to the balustrade on the house and “we got a bit of water on it but, … it wasn’t much”.  The appellant continued saying words to the effect of “Well, why don’t you come down here … say it to me?”[77]  The exchange continued with Mr Duetz saying he would be happy to meet the appellant down at the backyard, and when he went there the appellant hosed him.[78]
  5. [55]
    Mr Duetz then referred to Particular 17, an incident that occurred in the morning the following day.  Mr Duetz said he was going out the front gate and the appellant and his other tradesmen were in the front yard.  He heard conversation about what had transpired in the backyard (the day before), and Mr Duetz made a comment to the effect that, “that’s … a low situation … to be talking about a female in that situation”.[79]  He said the appellant turned to him and yelled out, “Rape, rape”.[80]
  6. [56]
    Mr Duetz then referred to Particular 8, an occasion when he came home in a taxi to collect his wife to go to a function.  He found a chair and other rubbish placed on the footpath.  He took the chair and threw it back to the appellant’s footpath and then went to hit the buzzer for his wife to come out.  Mr Duetz then walked back towards the taxi and turned to see the appellant “running up … towards me and then … basically standing … in front of me … about two inches away with his arms …. folded, asking me to have a go”.[81]  He then identified Exhibit 77 as a video recording the events.
  7. [57]
    He said that when he first saw him the appellant was running up the street towards him.  Mr Duetz was then taken to a scene in the video in which the appellant seemed to turn around and point his bottom towards Mr Duetz.  Mr Duetz described it as the appellant doing “the browneye”, and said he was not aware of any reason why the appellant would do that.
  8. [58]
    Mr Duetz said they put their own property on the market in early 2015, selling because “we couldn’t live there anymore … we couldn’t endure what we’d been through for the last … number of years … any longer”.[82]  He then referred to the sign which was the subject of Particular 26, saying that that had been erected by the appellant early in the sales process.  He also described the appellant’s conduct when the Duetzs had an inspection, which would include the appellant’s blowing dust and putting on music.
  9. [59]
    In cross examination Mr Duetz was asked about the first time that he met the appellant.  Mr Duetz said it was when the appellant came to his door asking for engineering drawings because the appellant was going to build a multi-story house and in the process do a deep cut along the boundary, and he did not want the Duetz’s wall falling in.[83]  Mr Duetz denied the proposition which was put to him, that he had spoken to his wife overnight about what she had said in evidence.
  10. [60]
    Questioning continued about the first time he met the appellant.  He could not recall if there were phone calls leading up to the first meeting and said that the appellant’s builder only came along to the second meeting they had.  He reiterated that at the first meeting the appellant said he had architectural plans and needed the Duetz’s engineering drawings.[84]  He described the appellant’s attitude in the first meeting as not involving the normal sort of introduction and reasonable exchange, but “more of a demand”.[85]  Mr Duetz denied the proposition that at a meeting with the appellant the appellant was accompanied by an architect.[86]
  11. [61]
    Mr Duetz was asked about the complaints that had been put in to various bodies, concerned with the height of walls and sediment erosion.  He said that his wife had prepared most of the documentation and that he was “probably not as well versed in the detail of that”.  He could not recall having discussions with an inspector from the Council.  He said he could recall meeting Mr Simmonds[87] and said that his recollection was that it was over concerns they had with the rubbish and building practices.[88]  He said in matters to do with their concerns and complaints he participated with his wife but his concerns were more to do with the direct instances he had with the appellant and the effect it was having on his family.[89]
  12. [62]
    He said his concerns with rubbish and old chairs and bins that the appellant put on the footpath was that it made it unsafe and not trafficable, not just for his family but for everyone.
  13. [63]
    Cross examination turned to Particular 4 and Mr Duetz affirmed the evidence he had given as to that event.[90]  He was asked whether anything was missing from his account.  Mr Duetz added with a comment from the appellant, “What are you going to fucking do about it?”[91]  He said that his wife had been crying over the incident shortly before.[92]  Mr Duetz denied the proposition that the event had not occurred and that the appellant indicated he did not know what Mr Duetz was talking about.[93]  He agreed that he was angry with the appellant saying “I can tell you that that conversation was based on something that had transpired and he knew about it”.[94]
  14. [64]
    When Mr Duetz was asked whether his wife had told him that the appellant had been following her consistently for more than 18 months, his response was:[95]

“… it was an ongoing scenario where my wife couldn’t go out to hose the garden, couldn’t go out the front to check the mailbox. He appeared beside her or close on – still on his property on … numerous occasions. But … whether it was consistently for 18 months … as I said … I wasn’t … there physically on all occasions and so … it would be a … statement I couldn’t make.”

  1. [65]
    Cross-examination turned to Particular 7, the incident which occurred at night and when the appellant turned a hose towards them.  Mr Duetz said they responded to a noise, went out on the deck and he shone his torch towards where the noise was coming from.[96]  Mr Duetz did not accept the proposition that he shone the torch into the faces of the appellant and his wife, nor that he did so for a significant period of time.  He said he shone the torch down there, where the appellant and his wife were hosing the slab, and the appellant was telling him to “fuck off”, to which Mr Duetz responded, “Settle down.  I just heard the noise so I was just investigating”.[97]  He also denied the proposition that there was at least 15 metres between them and that the hose could not come anywhere near them.  He said he “… got a little bit of splash … from that because … the water was reaching up to the balustrade and was coming over that but … we weren’t being drenched”.[98]
  2. [66]
    Mr Duetz said he did not recall a suggested conversation in which his wife said to the appellant’s wife “You poor woman, being married to that bogan”.[99]  Mr Duetz recalled that the appellant’s wife was civil throughout.  He also could not recall a suggested conversation in which his daughter called out to the appellant that he had built the house without considering the neighbours and that all the Duetz’s wanted was to have a say in the design.[100]  He also denied saying to the appellant that he had built his house too close to the riparian line.[101]  He accepted, however, that the appellant’s wife said something to the effect of “I don’t know what your problem is”, and that “we have built our house exactly in line with yours”.[102]  Mr Duetz said that he had more conversation with the appellant’s wife, than with the appellant.
  3. [67]
    Cross-examination then turned to Particular 17, and Mr Duetz reaffirmed his evidence-in-chief.[103]  In this account Mr Duetz referred to the expression “Rape, rape”, and said that the appellant was “making a thrusting motion”.[104]  He said he was certain that the appellant made that motion, and he had forgotten to say it earlier on.  He agreed that it was his assumption that the appellant was referring to the incident the subject of Particular 16, which had occurred between the appellant and Mrs Duetz the day before.[105]  Mr Duetz denied the suggestion that at no time did the appellant taunt him about his wife or use the words “Rape, rape”.[106]
  4. [68]
    Cross-examination then turned to Particular 8, the incident where Mr Duetz arrived in a taxi to collect Mrs Duetz.  He denied the suggestion that he picked up a chair and threw it with such force that it broke into four pieces on the road.[107]  He also denied the propositions that: (i) the appellant said that it was wilful damage or damage to his property, (ii) Mr Duetz responded that he was going to “pick up that chair and jam it right up your arse”, and (iii) that is why the appellant bent over and said “have a go”.[108]  He also denied that the proposition that he walked towards the appellant at a fast pace and in an aggressive manner, saying “You stink, you bogan”.  Also denied was the suggestion that he pushed the appellant in the chest.  He accepted, however, that he had his hands up in a defensive position.[109]  Mr Duetz said that it was the appellant who was the aggressive one saying to Mr Duetz, “Go on, have a swing”.  He then denied the proposition that he had hit the appellant in the chest a second time.[110]
  5. [69]
    Mr Duetz denied the proposition that as he turned to go, he kicked the appellant’s garbage bin causing it to litter across the front lawn.[111]  He also denied that Mrs Duetz was yelling at the taxi driver things like, “He’s a bogan and loser, just ignore him”.[112]
  6. [70]
    Cross-examination then turned to Particular 25, the event when Mr and Mrs Duetz were returning from the Coates’ house at night.  He was asked whether he had the impression that the appellant was following him, and he said “Yeah, … I found it … unusual that someone would be sitting in the dark … behind … the fence at that time of night”.[113]  He said he did not know what the appellant was doing before he saw him, and that “all I saw is when he popped out”.[114]  When asked whether that had happened on more than one occasion, Mr Duetz said that he was at work for a lot of the days and couldn’t recall other specific occasions, but “that scenario that happened, I did … witness other times then where it doesn’t matter whether we went to the front yard or the back yard, the defendant would all of a sudden appear in the back yard or the front yard; wherever we happened to be working”.[115]  Answering whether it was a possible coincidence rather than something on purpose he said “Well, not that many times”.[116]
  7. [71]
    Mr Duetz was shown a document which became Exhibit 88, which consisted of police notes of an attendance at the police station by Mr Coates and Mr Duetz on 25 June 2013.  That date applied to Particulars 2 – 4 in the schedule.  The note recorded the conduct attributed to the appellant as including:
  1. (a)
    leaning over the fence and looking through the neighbours’ windows, glaring at them;
  2. (b)
    following along the footpath until they walked inside;
  3. (c)
    graffiting the walls and swearing at them.
  1. [72]
    Mr Duetz was cross-examined about an occasion when they were in the car travelling up the road and stopped in the middle of the road, blocking the appellant’s vehicle.  Mr Duetz agreed that happened, explaining that it was when they were following their removal truck to the new home and they became concerned that the appellant was following them to see where they were going.[117]  Mr Duetz explained that their concern was sufficient enough that they got the police to escort them.  Mr Duetz explained his reason for stopping and then going to the appellant’s car as being “There was no way that I was going to let him see where that removalist truck was going”.[118]

Evidence of Angus Duetz

  1. [73]
    Angus Duetz is the son of Mr and Mrs Duetz and lived at the property.  He gave evidence about Particular 22, the event which involved a tow-truck driver delivering a car.  He said that as the car was being unloaded the appellant was on his balcony taking photographs.  His mother said something to the appellant, questioning why he was taking photographs and the appellant replied “Shut up you fucking ugly dog bitch”.[119]  Angus then came out into the street and told the appellant not to speak to his mother like that, and the appellant came down from his balcony.  He described what happened next:[120]

“There was a few comments made.  One was ‘Your parents better have a lot of money and be prepared to go to court.  I said to [the appellant],’ ‘That’s not why I’m here.  I’m here to discuss the way that you spoke to my mother.’  He then perpetuated with the threats, saying things were going to get worse if he lost his building licence.  And, after that … I think there was an exchange of a few more sentences and then I removed myself from the situation.”

  1. [74]
    In cross-examination he said he could not recall any direct conversation between the tow-truck driver and the appellant.  He agreed that his mother said to the appellant that the truck would only be there for a short time, but he denied that she made any comment to the appellant about minding his own business.[121]  He said he could not recall the exact nature of what was said between his mother and the appellant but it was a brief exchange with his mother questioning why the photographs were being taken.  She was not raising her voice at all.[122]  He denied the suggestion that at no time did the appellant say “Shut up, you fucking ugly dog bitch”.[123]  He could not recall any comment by the appellant to the effect that he was taking photographs because there was one rule for the Duetz family and one rule for the appellant.  He described the exchange between himself and the appellant as “fairly hostile” with himself being upset and the appellant being angry at him for questioning him.[124]  He denied that anything was said to the effect by him that his parents simply wanted a say in the design of the appellant’s house, and the appellant responding that it had nothing to do with them.[125]

Evidence by other witnesses

  1. [75]
    Mr Dixon, the Real Estate Agent who sold the Duetz’s house gave evidence.  He described the course of inspections and said that the appellant’s sign referring to the program “A Current Affair” had a detrimental impact on the sales process.[126]  He explained why he held the view it was detrimental, including his belief that it made buyers uncomfortable.  He also referred to the email from the appellant telling him that “a neighbourhood dispute has been lodged with the Brisbane City Council in relation to the above property which you are currently marketing”.  The email nominated three topics of complaint[127] and asked Mr Dixon to “ensure your obligations are met in advising prospective buyers until these matters are resolved”.  In cross-examination he said that he told all buyers that there was a dispute because of what was in the email.  In re-examination Mr Dixon said he had no dealing with the appellant on a face-to-face basis.  He also said that whilst he did not have the impression that the appellant did not want the Duetzs to sell, there was an attempt at times to interrupt the sales process”.[128]
  2. [76]
    Mrs Coates gave evidence that on 11 April 2013 she noticed the appellant and the workman Owen in conversation next to a wall on the Duetz’s property.  She saw Owen writing on the wall while they were in conversation.[129]  She subsequently saw that what had been written said “Wanker Naybors”.  In cross-examination she affirmed that she saw the appellant and Owen, and Owen was writing on the wall while the two of them were in conversation.[130]  She denied the suggestion that whilst Owen was out the front at the wall, the appellant was out the back fixing cement.[131]  She confirmed that she did not observe the appellant writing anything on the wall, but he was “standing there the whole time that the man Owen was writing on the wall”.[132]
  3. [77]
    Nicholas Coates gave evidences as to what he saw when the sign was written on the Duetz’s wall.  He recalled that his mother pointed out the appellant and Owen standing next to the wall.  He could see some faint writing on it but could not then make out what it was.  Owen was doing the writing and the appellant was there “standing and laughing”.[133]  He later went outside when a photograph was taken of the sign.  That photograph became Exhibit 72.  In cross-examination Nicholas Coates confirmed his evidence that at the time Owen was writing on the wall, the appellant was laughing.[134]
  4. [78]
    A Council officer, Mr Thorn, gave evidence from the Council’s records as to what complaints were made, by whom and in relation to what.  He also detailed what steps the Council took in response.
  5. [79]
    Senior Constable Lancaster gave evidence of his interaction with Mr Coates and Mr Duetz when they lodged a complaint against the appellant.  He also gave evidence of other complaints at a later time.
  6. [80]
    Sergeant Zerner also gave evidence in relation to complaints lodged by the Coates and the Duetzs, and his attendance at the properties on one occasion.  The attendances were on three to five occasions and in relation to noise complaints from Mr Coates.
  7. [81]
    Acting Sergeant Ebeling also gave evidence of her contact with the Coates family in relation to complaints by them about the appellant.
  8. [82]
    Detective Senior Constable Russell gave evidence about his investigation of the complaints, collection of CCTV footage and other matters concerning the preparation of the case on the stalking charges.  In cross-examination he answered questions directed to where the CCTV footage and photographs had been edited and how it had been stored.

Evidence of the appellant.

  1. [83]
    The appellant gave evidence of his history as a builder, the purchase of the land and his intentions to construct a house.  He then referred to the first time he met Mr Duetz which, he said, followed a phone call arranging a meeting because they needed to see the engineering drawings for the Duetz’s house.  He and his workman Owen met Mr Duetz and Mr Duetz’s builder.[135]  He asked if he could have a copy of the engineering drawings and also asked if he could bring a surveyor back to check a sewer line that ran underneath the Duetz’s pool and across the rear of the appellant’s property.
  2. [84]
    The appellant said a week later he had a telephone call with Mr Duetz about whether the appellant could move the pool to the rear of his house.  He said Mr Duetz commented that if he had the opportunity again he would have reduced the size of the building envelope at the time of sale.[136]  About a week later again he had a second phone call which he described in this way: “that phone call was – his voice was changed and he was basically telling me how to build my house”.[137]  He said Mr Duetz “was a little bit angry with what we were about to build next door”.[138]
  3. [85]
    The appellant said that when they started work in relation to a landing and some stairs off a rock wall in the riparian zone, they had to stop the work in order to get an approval which, itself, necessitated putting up a public notice.  Two objections were received, one from Mr and Mrs Duetz, and one from Mr and Mrs Coates.[139]  He gave evidence about the steps subsequent to that with the Council, and obtaining approval.  That evidence included his retaining a town planner who dealt with complaints raised in emails from the neighbours, to ensure that the building complied.[140]
  4. [86]
    The appellant then turned to Particular 1, the sign with the words “WANKER NAYBORS”.  He said Owen was working with him that day installing a power pole to bring electricity to the worksite, and the appellant was bringing up gravel from the rock wall at the bottom of the land.  In relation to the writing on the wall he said that he first became aware of that when he saw the program on A Current Affair.  He said he did not write on the wall, nor did he encourage anyone to do so, nor assist anybody to do so.[141]  He said a few weeks later he saw the words on the sign, at which time it was very faint.  In relation to that he said: “I didn’t think much of it. I just – it [didn’t] bother me”.[142]
  5. [87]
    The appellant said that work started on 24 June, and on that day an excavator was brought in to commence excavation for the construction of piles on the boundary.  He saw Mrs Duetz and her daughter taking turns to film the work on a video camera.  The filming continued on the second day.[143]  He said the filming continued “pretty much all day until I called the police”.[144]  He later confronted Mrs Duetz, asking her for an explanation of why she’d been recording over the last two days.  For that purpose he said he walked outside his property “towards her gatehouse”, and went towards her.[145]  He said he asked her “Is there any reason why you’re videoing us?”, but she did not respond and went inside.
  6. [88]
    The appellant was then asked to give an account in relation to Particular 7, the event which occurred at night when he was hosing the slab.  He said he came back to his site at about 9 pm with his wife and made his way to the bottom slab.  He said that Mrs Duetz and her son walked onto the balcony and shone a bright torch at them.[146]  Mrs Duetz then called out to the appellant’s wife saying, “Your poor wife. You’re married to a bogan”.[147] His wife responded “What’s your problem?”.  The appellant said that Mrs Duetz kept shining a torch at them and it shone in his eyes.  He said that Angus Duetz said they had come out to see who was there, and his wife responded, “You see us. Leave us alone”.[148]  His evidence then continued:[149]

“All right. And what happened then?--- They continued shining a torch at us. I turned around and said, “Fuck off”. And at the same time I had a hose in my hand and I put – swung the hose towards their direction.

All right. Well, you said, “Fuck off”. Who did you say that to? Do you recall? --- We – I couldn’t see who was holding the torch and shining the torch at my eyes. So it was directed towards the people on the top balcony.

Do you know how many people actually up there in all? --- there was two”.

  1. [89]
    The appellant said that at some stage Mr Duetz, the Duetz’s daughter and a third male person made their way to the boundary near the lower slab and had a conversation with the appellant’s wife.  He said all he heard of the conversation was that “they were talking about all we wanted is a say in your design”.[150]  He thought it was the daughter who said that.
  2. [90]
    The appellant said there was a distance of at least 20 metres between himself and where the people were standing on the balcony.[151]  He described the hose as being just a normal garden hose, with no connection on it.
  3. [91]
    The appellant said that he had a habit of placing his rubbish bins outside his property, and identified his bins in Exhibits 76 and 74.  He said, with reference to Mrs Duetz, that on a number of occasions he arrived at the site to find that the emptied bins had been placed in front of his gates.[152]  By reference to Exhibit 76 the appellant said that someone had beaten him to work, opened the gates and next to the gate was one of his bins.[153]  He said he could recall the occasion, and he was “frustrated” because he had to move the bins back to where they were when they were empty.  As a result of his frustration he said he “slammed them on the ground”.[154]
  4. [92]
    The appellant was then taken to event Particular 8.  He said he heard a car pull up and a door slam, and when he looked around Mr Duetz had one of his chairs and threw it on the ground, breaking it “into about four or five pieces”.[155]  He commented to Mr Duetz “that’s wilful damage”, at which time Mr Duetz said “I’m going to grab that chair and shove it up your arse”.  The appellant then turned around, bent over and said “Go for it”.  At that point he said Mr Duetz “came up right in front of me”, and he “thought he pushed me in my gut”.  He said Mr Duetz “had two hands he just pushed me and I just stepped back a little bit”.[156]
  5. [93]
    The appellant said that during this interaction that his hands were on his side or on his hips.  He said he could smell alcohol on Mr Duetz’s breath.  He said Mrs Duetz yelled out “Come back here, Robert, he’s not worth it” to Mr Duetz, at which point Mr Duetz “walked off he kicked my bins”, and “he just went on the footpath and the road”.  He said Mr Duetz called him a “stinky bogan”, “bogan”, and “we’re sick of you”.[157]
  6. [94]
    The appellant said he walked up to photograph the number plate of the taxi and talk to the driver at which point Mrs Duetz intervened saying something to the effect of “He’s only a bogan, … don’t listen to him”.  After the taxi left the appellant rang the police, and that night he went down to the police station and gave a statement.[158]
  7. [95]
    In relation to Particular 12, the appellant denied ever making a statement to the effect of “never have sex”.  He also denied that he was ever present when someone else said something to that effect.[159]
  8. [96]
    The appellant was then asked about Particular 16.[160]  The appellant’s account was in these terms:[161]

“It was late afternoon.  Most of the boys had left for home for the day.  I had one subbie who wasn’t quite ready to go home, so I had some spare time.  During that day we’d laid some turf in our back yard.  I made my way down and I was – I was just working with – working with the sprinklers.  I had my back turned to the Duetz’s property.  Suddenly a loud screaming from Mrs Duetz – recalling the words very loud.  It was very ears piercing:

Go away.  Someone help me.  Someone call the police.

Something along those lines.  At the time I heard that voice it was so loud I actually froze for about 10 seconds.  And then I continued doing what I was doing with my sprinklers.”

  1. [97]
    The appellant denied that he did or said anything towards Mrs Duetz on that occasion.[162]  He said he expected the police to arrive but nothing happened over the next hour and then they left.
  2. [98]
    As to Particular 17, the appellant said he was never present when someone called out the word “rape”, nor did he authorise anyone to do that.[163]  The appellant was then asked to address Particular 21 and reminded of the evidence given by Mrs Duetz in that respect.[164]  He explained that there were many occasions when there was no room to park his car on his property and he usually parked his car over the crest in a no standing zone.  During the day he would sometimes walk to and from his car.[165]  He said that there was no occasion when a car drove passed Mrs Duetz and he yelled out “Hit her.  Hit her.”[166]
  3. [99]
    He then addressed Particular 22.  He said he was upstairs working on the house when the tow-truck arrived.  Because it was “pretty much blocking the whole street” and parked near the front of his gates, he walked out on the balcony and started taking some photographs.  The tow-truck driver walked over to him and was not happy that he was taking photos.  Shortly after that Mrs Duetz yelled out to him “It will only be a few minutes”.  He said he responded “So it’s okay when you guys block the street but it wasn’t okay when I do it?”.[167]  He said soon after that Angus Duetz called him to come out and have a talk.  He had a discussion with him in which Angus was “basically telling me his family’s concern of the house I built and they had no input or say what I built”.  He responded that he did not need his family or his parents telling him what to build or how to build his house.[168]  He denied swearing at Mrs Duetz and said the conversation he was having was not aggressive although not pleasant.
  4. [100]
    In relation to Particular 25, he said that he can recall leaving his property and walking past Mrs Duetz, on his way to his car.  He said that quite often he used to work late at night and on those occasions he simply walked out to his car.[169]
  5. [101]
    As to Particular 26, the appellant admitted that he had made the sign and put it on the front of his boundary.  He said the purpose was “just to let people know that …there was another dispute and they can make their own … thoughts on the matter”.[170]
  6. [102]
    In relation to Particular 30, the appellant admitted that he and his wife had written the letter to the agent.[171]  He said the purpose was to simply notify the agent so they could notify potential buyers.  In respect of the sign on the front of his boundary and the email the appellant said he was upset by the story on A Current Affair.
  7. [103]
    The appellant denied ever placing materials along the fence or boundary line.  However, he conceded that it could have happened even though he was not aware of it.[172]
  8. [104]
    The appellant referred to the incident with the removalist truck and said that he was not following the removalist van.  He had received a call to collect his son and that is what he was doing.[173]

Cross examination of the appellant

  1. [105]
    In cross-examination the appellant agreed that his early interactions with Mr and Mrs Duetz were fairly friendly.  He asked for their engineering plans and they provided them.  He agreed that the stairs on the retaining wall were not included on the approved plans, and construction had to stop while that approval was obtained.[174]  He also agreed that a Council inspector spoke to his workman, Owen, and there was a site meeting with the appellant when he got back from Sydney.[175]  It was then suggested to him that it was the following day that Owen, accompanied by the appellant, wrote the words “Wanker Naybors” on the Duetz’s retaining wall.  The appellant said that he was not aware of that until he saw the program on A Current Affair.[176]  It was put to the appellant that he was there, with Owen, when Owen wrote the words on the wall.  His answer was:

“I was with him on that property, but I was not with him when – right next to him – when he wrote those words on the wall.”[177]

  1. [106]
    The appellant was questioned about the objections and complaints made to the Council, and said that when the initial complaints came in from the two neighbours, he had a meeting with his architect and town planner “to make sure that everything that we’re going to build on that complies … when we started building that we didn’t have any problems at all from the start”.[178]
  2. [107]
    The appellant denied the suggestion put to him, that during the construction phase he did everything he could to maximise the inconvenience, discomfort and misery to his neighbours.[179]  He also denied that he encouraged his workers to do so.
  3. [108]
    The appellant was asked about Particular 7, the incident at night when they were hosing the slab.  The appellant denied his response was hostile but did agree that he told them to “Fuck off”.  He explained that as being “you’ve got to remember I had the lights in my eyes and they were annoying me”.[180]  He agreed that he was angry because the lights were shining in his eyes and when it was put to him that he was rather quick to take to anger he answered: “They kept continuously shining, like, the torch at us for a little … while before they retreated inside”.[181]  The appellant agreed that he pointed the water in their direction but maintained it was impossible for the water to reach them because of a lack of water pressure and the distance.[182]  He denied that it was an indication of his general hostility towards the Duetzs.
  4. [109]
    The appellant was asked about Particular 25, which occurred on 10 September 2015.  The appellant agreed that he had been arrested the previous day.[183]  He said he remembered walking past someone but did not know who they were.  He explained that by saying that he “just put my head down and just walk straight to my car.”[184]  The appellant agreed that one of his conditions of bail, granted the previous day, was that he had no contact directly or indirectly with any of the complainants, two of whom were Mr and Mrs Duetz.[185]  It was put, and denied, that he deliberately walked close to them in order to upset them.[186]
  5. [110]
    It was also put to the appellant that the following night he did much the same thing when he walked past Mr and Mrs Coates, late at night, exiting from his property.[187]  Once again, the appellant said he did not know who it was he had passed, as he looked down and walked straight to his car.  The next question was “So two nights in a row, it was just coincidence?”, to which he responded “it must be”.
  6. [111]
    The appellant was asked about Particulars 2 – 4, which occurred on the day after excavation commenced.  He denied that he stood on the boundary wall staring at Mrs Duetz, or that he walked close to her when she went to the gate.[188]  As for Particular 4, the appellant agreed that Mr Duetz confronted him that afternoon and told him to stay away and stop harassing his wife.[189]  Whilst he denied standing there in an aggressive pose, asking Mr Duetz what he was going to about it, he did agree, when it was put to him that he called Mr Duetz a paedophile, that he said “As much as I know you guys could be paedophiles.”[190]
  7. [112]
    The appellant was then asked about Particular 8, when Mr Duetz arrived in the taxi to collect his wife.  It was put, and denied, that Mr Duetz did not push or lay hands on the appellant.  By reference to Exhibit 77, the video of the incident, it was put to the appellant that the only reason Mr Duetz was above him was because he was standing uphill from him, which the appellant denied, saying that the video had been heavily edited.[191]  The appellant agreed he was standing with his feet astride and his arms in front of his chest, but denied the suggestion that was an aggressive stance.  It was also put, and denied, that what was revealed in the video was the stance he adopted when, as yet, no physical contact had taken place.[192]
  8. [113]
    The appellant was then asked about Particular 6, and denied that he had ever thrown bins at Mrs Duetz’s feet.  When it was put to him that he did it to intimidate her he answered that it was not true and “It never happened”.[193]
  9. [114]
    The appellant was questioned about the possibility that he or his workers would walk in front of Mrs Duetz’s house, including in front.  The appellant said there were up to 10 people at a time sitting under the tree near the front of his construction site, at smoko and lunch time.  He maintained that “we were pretty tight to each other” and the group just finished their lunch and walked back to the job site.  He denied that anyone had ever walked in front of Mrs Duetz’s house.[194]
  10. [115]
    The appellant was then asked about Particular 16.  He maintained that he had his back towards Mrs Duetz, but heard her screaming.  He said “I’m not aware if she ran past me”.[195]  The appellant said it was not possible that she had to run within inches of him to get upstairs, and denied that he was laughing at her discomfort.
  11. [116]
    The cross-examination then turned to Particular 17.  The appellant said that it was “not possible”.  He then explained:[196]

“That morning, I can clearly remember what happened.  I arrived at work at approximately about 10.30.  When I walked up the street, I saw Mr Duetz next to the light pole.  He had a telephone in his hand and he was recording and all I heard is the tail end of a conversation, what I heard, when he said ‘Do you think it’s funny that my wife’s having a mental breakdown?’  At that time, there was a few plumbers and there was Owen there, and I asked the boys to come inside.

Mr Tarasiuk, that is just not true is it? --- It is true.

They were laughing at the joke that you’d told them about the previous afternoon? --- … That incident occurred …the previous afternoon.  I spoke to Owen when I was waiting at the kerb for the police to arrive.  I made a phone call to Owen and I made a phone call to my wife to explain what just has happened.”

  1. [117]
    The appellant was then asked about Particular 22, the incident which occurred when the tow-truck was delivering a car.  The appellant disagreed that the tow-truck driver became angry when he was photographed by the appellant, but did say that the driver turned around and waved his hands, indicating he was asking what was the purpose of taking a photo.[197]  He had denied saying “Shut up you fucking ugly dog bitch” to Mrs Duetz, and that Angus Duetz had heard it and remonstrated with him.  He maintained his account that there was no heated discussion with Angus Duetz and that all that happened was a friendly discussion about certain aspects of the building.[198]
  2. [118]
    As to Particular 26, which concerned erecting the sign referring to the programme on A Current Affair, the appellant maintained the position that it was not done out of vindictiveness or to make it difficult to sell the house, but rather so that “people can make their own judgment and looking to what actually happened there”.[199]
  3. [119]
    The appellant was asked about Particular 14, and denied that he stared at Mrs Duetz while she was vacuuming.  He also denied attempting to follow the Duetz’s removalist truck.  As to that, notwithstanding that the truck had been there for some hours while loading and unloading was carried out, the appellant said he was not aware of its presence.[200]
  4. [120]
    In re-examination the appellant referred to the occasion on the subject of Particular 25.  He was asked to clarify his evidence that he did not know who the people were.  His answer was: “I could have saw them in the corner of my eye, but I would have put my head down and just walked straight in the direction to my car”.[201]  He then said “at all times I just wanted to avoid my neighbours … just looked down and just walked”.[202]  However, he said he would have presumed it was someone from “that family”.[203]

Evidence of the appellant’s wife

  1. [121]
    Mrs Tarasiuk said that in the initial stages of building she would not be at the site for very long, usually coming by to drop off some lunch and then leaving to do errands.  Towards the end of the project she said that she was there a lot.  She explained this as meaning that she would drop her children at school and then go to the building site and be responsible for various tasks.
  2. [122]
    She gave evidence about Particular 7, which occurred at night when they were hosing the slab.  She said that the appellant started hosing the slab when “suddenly we had some bright lights shined in our eyes, and I looked up where the lights were coming from, and I could see Mrs Duetz together with a young man on her top balcony”.[204]  She guessed the intervening distance as 10 metres plus.  She said Mrs Duetz called out “You poor woman being married to that bogan”.[205]  She responded “What is your problem”, and then the young man explained they heard a noise and wanted to come out and see what it was.  She called back that now they had seen that it was them they could go, “But they wouldn’t leave.  They had – I think there was either one or two spotlights in their hand. I can’t really remember. But I can remember having that directly into my eyes”.[206]  She then continued the narrative:[207]

“… then what happened is Mr Duetz came out closer to where I was standing on that bottom slab, so he came out near his pool, where those stairs were, and he came out with a young man and a young lady, and the young lady said to me – Steven was still hosing the slab at this time, and I was close by so I had a… conversation with them. The young lady said to me, “You didn’t consider your neighbours when you were designing your house, and we didn’t get to have a say.” And then Mr Duetz said to me, “You’ve built your house too close to the riparian. And I replied, I said to them both, “No, our house is in line with your house. You have built your house much bigger than your neighbour’s house, so I don’t see what the problem is.” At that time, Mrs Duetz, I could hear yelling out, “Robert you don’t need to explain yourself to her. Come inside.” And Mr Duetz said, “No, I would like to have a conversation with her. At least I’m getting somewhere with her.” But Mrs Duetz kept calling Mr Duetz back inside. So they went back. Steven and I had finished anyway. We were only there for a very short time. So we left that area. And as we were walking away from the slab and turned around, we could see that Mr and Mrs Coates were on their balcony looking down on us as well.”

  1. [123]
    She described the conversation with Mr Duetz as him being quite reasonable, a little bit annoyed but not aggressive.
  2. [124]
    In cross examination Mrs Tarasiuk agreed she was aware there was tension between the appellant and Mr and Mrs Duetz.[208]  She said that the comment she attributed to Mrs Duetz (“poor woman, married to that bogan”) was the first thing that Mrs Duetz said, and it was said as soon as they got to the slab, “we had only just got there”.[209]
  3. [125]
    Mrs Tarasiuk agreed that her husband called out to Mr Duetz to “fuck off” but she said that was not part of the conversation she was having with Mr Duetz, and it was said only when “they continued to shine the light in our eyes”.[210]

Ground 2– verdict unreasonable and not supported by the evidence

  1. [126]
    The principal submission made on behalf of the appellant was that the conduct the subject of the particulars “could not have, in a legal sense, risen to the level contemplated by the legislation with respect to an offence of stalking”.[211]  The next contention made was that if it was found that the particulars were capable of founding a count of stalking, then “they could not have been found to do so in the circumstances of this case”, as they could only have risen to the level of nuisance and nothing more.[212]  In this respect the essential part of the contention was that the conduct as detailed in the Particulars and the evidence could not have satisfied the elements of stalking under s 359B of the Criminal Code 1899 (Qld).  Nor, it was said, could the apprehension or fear have reasonably arisen in all of the circumstances.
  2. [127]
    It was then contended that if the apprehension of fear could and did reasonably arise in all the circumstances, it could only have done so because it was informed (at least in part) by the underlying perception that the appellant had a CCTV camera positioned so as to look straight into Mrs Duetz’ bedroom.  It was submitted that once Mrs Duetz came to believe the CCTV camera was pointed into her bedroom, “that everything thereafter was coloured or informed by that belief”.[213]
  3. [128]
    The appellant’s contentions necessarily engage an analysis of s 359B of the Criminal Code which relevantly provides:

“359B What is unlawful stalking

Unlawful stalking is conduct –

  1. intentionally directed at a person (the “stalked person”); and
  2. engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  3. consisting of 1 or more acts of the following, or a similar type,-
  1. following, loitering near, watching or approaching a person;
  2. contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
  3. loitering near, watching, approaching or entering a place where a person lives, works or visits;
  4. leaving offensive material where it will be found by, given to or brought to the attention of, a person;
  5. giving offensive material to a person, directly or indirectly;
  6. an intimidating, harassing or threatening act against a person, whether or not involving violence or threat of violence;
  7. an act of violence, or threat of violence, against, or against property of, anyone including the defendant; and
  1. that –
  1. would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
  2. causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”
  1. [129]
    Section 359C provides that various things are immaterial for the offence of unlawful stalking.  For the purpose of s 359B(a) it is immaterial whether the person doing the stalking intends that the stalked person be aware the conduct is directed at them: s 359C(1)(a).  Further, for the purpose s 359B(a) and (c), it is immaterial whether the conduct directed at the stalked person consists of conduct carried out in relation to another person or the property of another person: s 359C(2).  Then, in terms of the apprehension or the fear or the detriment under s 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or the fear, or the detriment: s 359C(4).  And finally, it is immaterial whether the apprehension or fear, or the violence mentioned in s 359B(d) is actually caused: s 359C(5).
  2. [130]
    The Criminal Code also includes some definitions to be noted at this point.  Section 359A provides that “detriment” includes:

“(a) apprehension or fear of violence to, or against property of, the stalked person or another person;

  1. serious mental, psychological or emotional harm;
  2. prevention or hindrance from doing an act a person is lawfully entitled to do.”
  1. [131]
    With those matters in mind one can turn to the list of Particulars.
  2. [132]
    Particular 1 concerned the writing of the words “WANKER NAYBORS” on Mrs Duetz’s retaining wall.  The Particulars allege that the appellant and Owen wrote those words.  The evidence was that Owen wrote the words while the appellant was present, laughing.  In my view, that conduct comes within s 359B(c)(iv), leaving offensive material where it will be found by or brought to the attention of a person.  It also comes within s 359B(c)(vi), namely an harassing act against the person.
  3. [133]
    Particulars 2, 3, 10, 11, 14, 15 and 18 all allege conduct in which the appellant either followed or approached Mrs Duetz, or stared at her. Plainly they were capable of falling within s 359B(c)(i), which expressly refers to following, watching or approaching a person.
  4. [134]
    Particulars 4, 6, 7, 8, 16, 21 and 22 all concern aggressive conduct on the part of the appellant either towards Mrs Duetz,[214] or against members of her family in her presence.[215]  In my view, they plainly fall within s 359B(c)(vi), which refers to carrying out an intimidating, harassing or threatening act against a person, in which case it is immaterial that the conduct is directed at the stalked person or someone else: s 359C(2).
  5. [135]
    Other Particulars concern conduct on the part of the appellant in which he said or called out derogatory or threatening things.  For example, Particulars 9, 12, 17, 21 and 22 all fit into that category.  In my view, they are caught by s 359B(c)(vi) as being an intimidating or harassing act.
  6. [136]
    Other items consisted of conduct where the appellant either approached or stayed in the vicinity of Mrs Duetz’s house.  Examples are Particulars 3, 6, 11, 15, 16 and 18.  In so far as the conduct involved the appellant being at, near or approaching Mrs Duetz’s house, the conduct could fall within s 359B(c)(iii), which refers to loitering near or approaching a place where a person lives.
  7. [137]
    Other Particulars, such as 1, 23, 25, 26, 27 and 30, involve conduct which could fall within the term “harassing” in s 359B(c)(vi).  For that purpose it is immaterial that the conduct consists of conduct carried out in relation to a person other than the stalked person[216], which would comprehend conduct ostensibly directed at others such as anyone who saw the sign on the appellant’s fence (Particular 26) or the real estate agent who received the email with the false allegation in it (Particular 30).
  8. [138]
    I therefore do not accept the contention that the Particulars could not have, in a legal sense, risen to the level contemplated by s 359B.  They all alleged conduct which, prima facia, fell within one or other sub-sections in s 359B(c).
  9. [139]
    Further, in so far as it was contended that an apprehension or fear could not have reasonably arisen in all the circumstances that too should be rejected.  One commences with the overall characterisation of the conduct in the Particulars.  First, it is all directed at Mrs Duetz, in or around her home, or at her family members in or around her home.  Secondly, as particularised at least some of the conduct was expressly said to have been aggressive, both physically and verbally.  For example Particulars 4, 7, 8, 21 and 22 all concern aggressive acts with aspects of violence or threatened violence about them.  Others, such as Particulars 6, 11, 16 and 25, all concern conduct which contains implicit threats of violence or at least aggression.
  10. [140]
    Finally, many of the items of particularised conduct involved acts perpetrated against Mrs Duetz when she was alone, either in her house, or in or near her yard.  A prime example is Particular 16 which, according to the evidence of Mrs Duetz, so scared her that she screamed.  Even the appellant’s account of this incident involved Mrs Duetz screaming, though he would have it that she did so for no reason whatever.  All of the Particulars which involved aggressive conduct, are ones which, in my respectful view, would fall within s 359B(d)(i), namely conduct which would cause a stalked person apprehension or fear of violence to that person or someone else, reasonably arising in all circumstances.  How could it not, one might ask rhetorically, when some of the conduct involves the appellant’s readiness to assault Mr Duetz[217], her son,[218] or herself.[219]
  11. [141]
    For the purpose of examining the apprehension or fear under s 359B(d)(i), one must have regard to the definition of “circumstances”, which s 359A defines to mean: (i) the alleged stalker’s circumstances; (ii) the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker; (iii) the circumstances surrounding the unlawful stalking; and (iv) any other relevant circumstances.
  12. [142]
    There can be little doubt that the “circumstances” for the purposes of s 359B(d)(i) would include the fact that on most of the occasions Mrs Duetz was by herself, and on most of the occasions the appellant was in the company of his workmen.  Further, the appellant’s circumstances included the fact that he was angry at what he wrongly perceived to be unwarranted intrusions into his construction of his house, and by what he wrongly perceived to be unjustifiable complaints or objections to authorities.  The circumstances surrounding the conduct included that the appellant’s construction was in close proximity to Mrs Duetz’s house and he and the workmen would regularly be on the footpath.  That proximity, and the fact that Mrs Duetz was often alone, means that it was reasonably foreseeable by the appellant that she would feel vulnerable in the face of the sort of conduct itemised in the Particulars.
  13. [143]
    In the circumstances it was entirely reasonable that Mrs Duetz would feel apprehension or fear of violence to herself, her family and even their property.
  14. [144]
    The next contention on the part of the appellant was that if an apprehension of fear did arise it could only have done so because it was informed by the underlying perception that a CCTV camera on the appellant’s premises was positioned to look straight into Mrs Duetz’s bedroom.
  15. [145]
    The difficulty with this contention is that the installation of the camera, the subject of Particular 13, did not occur until 5 June 2014 whereas the conduct commenced with Particular 1 on 11 April 2013, more than a year before.  Mrs Duetz gave evidence about the impact upon her of that conduct, summarised as follows:
    1. (a)
      Particular 1 – she felt very unsettled about who her neighbour might be if they were prepared to write a derogatory phrase on her wall;[220]
    2. (b)
      Particular 2 – she felt very intimidated by this conduct because of the close proximity of the boundary wall to her house;[221]
    3. (c)
      Particular 3 – this conduct “really scared me” and her phone call to her husband exhibited such distress that he came home immediately;[222]
    4. (d)
      Particular 4 – she said the whole day had been very frightening, and she was “also frightened of anything physically happening to my husband”; a more general description was that she was “Very scared because it’s a group of men, you know, swearing and carrying on.  I was usually at home on my own”;[223]
    5. (e)
      Particular 6 – she said she was “just shaking like a leaf”, and “very, very frightened”;[224]
    6. (f)
      Particular 7 – this conduct left her “very frightened because [the appellant] was very volatile”, and he seemed to want to fight her husband;[225]
    7. (g)
      Particular 8 – this conduct left her feeling very frightened because of “the volatility of it and the aggression of it, and I was frightened that my husband was going to be caught up in some altercation”;[226]
    8. (h)
      Particular 9 – this conduct left her feeling “Totally frightened” to the point where she would sometimes ask her children to accompany her, or at least she would let them know what she was doing;[227]
    9. (i)
      Particular 10 – her description of a feeling from this conduct was that she was “frightened” and it caused her to gather her things and go back inside;[228]
    10. (j)
      Particular 11 – she described herself as being “Frightened as always” by what occurred in this incident;[229] and
    11. (k)
      Particular 12 – this caused her to get her things and go back inside, shutting the door.[230]  Mrs Duetz said she felt “ridiculed, frightened, sick”.[231]
  16. [146]
    It is true to say that when Mrs Duetz referred to the (later deleted) Particular 13, which concerned the installation of CCTV camera, she described her feelings in emphatic terms.  She said she was “just devastated”, and she “couldn’t even hide in my own home anymore”.[232]  When asked to describe how that affected her emotionally and psychologically, she said she “just felt sick … we had to keep our blinds down all the time because I just didn’t want the thought of him looking in at us in … our private bedroom.  It was … just the last straw.”[233]  However, as with each Particular before that one, and with each Particular thereafter, Mrs Duetz was asked for her description of how the particular conduct of each item made her feel.  Her answers are, properly understood, a description of her reaction to the particular item of conduct about which she was being questioned at the time.[234]
  17. [147]
    By contrast the only time when Mrs Duetz rolled the impact of the CCTV camera into a description of her feelings otherwise was in respect of Particular 16, the incident where the appellant walked towards her and she screamed.  She said:[235]

“In the past, I had never tried to react to him.  I’d always tried to ignore him.  I don’t know what it was.  This night – I think it was a [indistinct] … the camera into my bedroom, everything else – I just snapped and I screamed and screamed and I said, ‘Go away.  Do not come near me.’”

  1. [148]
    As to that incident, she also said that “by this stage, I was just petrified … Of him”.[236]
  2. [149]
    It is principally these two descriptions that the appellant relies on for the contention that Mrs Duetz’s reaction to the CCTV camera informed all of the other conduct.  In my view that conclusion is not sustainable.  It might be accepted that her reaction to various incidents built upon her reaction to earlier incidents, as particular conduct was repeated or new conduct escalated matters.  However, that does not mean that the apprehension of fear, or the detriment, referred to in s 359B(d) did not reasonably arise in the circumstances.  Furthermore, s 359B(d)(i) provides an element where the conduct “would cause … apprehension or fear, reasonably arising in all the circumstances …”.  For the purposes of that sub-section it is immaterial whether the apprehension or fear is actually caused: s 359C(5).  Once that is understood the contention by the appellant that Mrs Duetz’s reaction to the CCTV camera overwhelmed her reaction to other matters, cannot be sustained.  Looking at those that occurred later in time, there are a number of items of conduct which, if the jury accepted Mrs Duetz’s evidence about how they occurred, plainly constitute conduct which “would cause … apprehension or fear, reasonably arising in all the circumstances”.  Prime examples of those are Particular 16 where the appellant walked towards Mrs Duetz in such a way that she screamed, Particular 21 where the appellant pretended to encourage a driver to hit Mrs Duetz, Particular 22 where an obscene threat was yelled at her, and Particular 25 where the appellant appeared suddenly late at night and walked in close proximity to her.  Dealing with those that preceded Particular 13, the same can be said of all of Particulars 1-12.
  3. [150]
    On a review of the whole of the evidence it was open to the jury to find the appellant guilty.  This ground fails.

Ground 3 - issues arising from the late deletion of Particular 13

  1. [151]
    Particular 13 concerned the CCTV camera which appeared mounted to the wall of the appellant’s house, and apparently pointing into Mr and Mrs Duetz’s bedroom.  There is no doubt that Mr and Mrs Duetz thought it was pointing into their bedroom and thought it was operational.  However, independent evidence at the trial from the person who installed the camera established that even though it appeared to others that it might be pointing at the bedroom, it was not, and in any event it was not operational at any relevant time, being commissioned for the first time in October 2015.  As a consequence the prosecutor made the decision to no longer press Particular 13 as a count of stalking.  During the course of address the prosecutor told the jury exactly that in quite specific terms, which included an acceptance of the evidence that it was not pointed at the bedroom and that it wasn’t operational,[237] and included this statement:

“In any event, the Crown accepts that there is an explanation which seems to settle that the camera wasn’t operational, although the Duetzs thought it was and so their anxiety and fear was not diminished by a lack of knowledge, but there does appear to be what could be regarded as an innocent explanation for the presence of those cameras there at the time, that they were put up when the scaffolding was there – so that they wouldn’t – the scaffolding wouldn’t have to be put up again. … In any event, the Crown no longer presses that count as being an act of stalking.”

  1. [152]
    By that time, Counsel for the appellant had already addressed at length on the question of the evidence which showed that the camera neither pointed at the bedroom, nor was it operational.[238]  The address included examining in detail that evidence.[239]
  2. [153]
    The appellant contended that when the abandonment of Particular 13 was dealt with in the summing up, the approach contained an error in two respects.  First, it was said that the learned trial judge failed to “properly instruct the jury to strike through particulars 13 and 24 in accordance with the manner agreed to and adopted by his Honour”.[240]  This was said to be an agreement reached during the course of the trial.  Secondly, it was contended that one possibility was that the learned trial judge thought he had given a direction in the agreed form, when he had not.[241]
  3. [154]
    The so-called agreed method when directing about deleted particulars is not made out when one has regard to what occurred during the course of the trial.  The jury were given a copy of each set of Particulars.  Exhibit Y was an amended schedule of the acts of stalking of in respect of Mr Coates.[242]  Exhibit Z was the amended schedule of the acts of stalking in respect of Mrs Duetz.[243]  Reference to each of those schedules shows that they bore the title “Amended Schedule of Acts of Stalking”.  When dealing with Exhibit Y the learned trial judge asked the jury to take out their own copy and strike out various particulars which were no longer relied upon.[244]  In respect of them the jury was asked to put aside previous documents that they had been given and to use Exhibits Y and Z, the amended schedules.[245]  The jury were told that “these new documents are the amended particulars on which you will ultimately have to decide this case in respect of each count”.[246]  They were then told how to identify those that were struck through and therefore no longer relevant:[247]

“You will find as you go through it – and [it will be] explained later, … any particular that is greyed out and struck through is no longer relevant for the purpose of this trial.”

  1. [155]
    Reference to Exhibits Y and Z reveal various particulars that were struck through as no longer being relevant.  On Mrs Duetz’s particulars, Exhibit Z, these included Particulars 5, 10 (part), 19, 20, 28 and 29.
  2. [156]
    During the course of the address by the prosecutor, some adjustments were made in respect of Exhibit Y, which dealt with the particulars of stalking not relevant to Mrs Duetz.  The jury were asked to “take out your document that relates to David Coates, which I’ve marked Y for identification”, and then to strike out Particular 10.  The jury were told that “as with any other particular that’s been struck out, it’s no longer part of your consideration”.[248]
  3. [157]
    Prior to the summing up, the learned trial judge proposed that if there were any further Particulars that needed to be dealt with, his Honour would remind the jury of his direction about the Particulars and “just tell them to strike further ones out”.[249]  Counsel for the appellant agreed with that process, identifying Particular 13 in Exhibit Z, the item concerning the CCTV.  The learned trial judge considered that by that method he could “adequately deal with it and still start the summing up at 2.30”, at which time Counsel for the appellant was going to be absent, and the jury were told that as well.[250]  Counsel for the appellant was content with that course.
  4. [158]
    In the course of his summing up, the learned trial judge turned to the particulars relevant to Mrs Duetz.  His Honour then said:[251]

“You have been handed a document containing amended particulars, which alleges relevant acts by the defendant intentionally directed at the complainant, Arna Duetz.  In respect of those amended particulars, both lots, I direct you as follows: (1) those items in the list of particulars that have been greyed out and struck through are alleged acts upon which either, as a matter of law, I have ruled, and/or the parties have agreed that there is insufficient or no evidence for you to consider those acts at all in your deliberations in respect of each count.  This direction also applies to the further items that I have directed you to strike out from your copy of the particulars in respect of David Coates during the course of counsel’s submissions.

Conversely, those particulars not greyed out or struck through are the only acts on which you are to decide in respect of each count in accordance with the further directions I now give you, whether the prosecution are able to persuade you beyond reasonable doubt of the defendant’s guilt.”

  1. [159]
    In the course of his summing up, the learned trial judge dealt with the schedules concerning the Coates family.  His Honour reminded the jury that Particular 10 had “now been deleted, so you can withdraw that from your consideration”.[252]  His Honour then turned to the schedule in respect of Mrs Duetz.  His Honour directed the jury:[253]

“Now there were, as with the Coates, there were some matters in respect of Arna Duetz which have been deleted. Number 13 has been deleted. Thats of course the CCTV camera. So you can scratch that and of course anything that the prosecutor said about it. And, similarly, number 24. Just confirm that that is now removed from your consideration and so you can set that one aside as well.”

  1. [160]
    What this analysis of the course of the trial reveals, relevantly to the present contention, is that there was no misdirection to the jury in respect of the deletions for Exhibit Z in respect of Mrs Duetz.  First, there was no agreed protocol to be adopted by the learned trial judge when directing about the deletion of various particulars.  The course taken by his Honour was to utilise the amended schedule in respect of the Coates’ allegations, which already had some items struck through, and direct that the jury strike through the relevant particular.  That is precisely what his Honour did when it came to Particulars 13 and 24 in Exhibit Z in respect of Mrs Duetz.
  2. [161]
    Secondly, each of the jurors had a copy of the amended schedule, Exhibit Z.  They had been specifically directed that in respect of the amended schedule, items greyed out or struck through were to be ruled out of their deliberations entirely.  As each juror had a copy of the relevant schedule, it was appropriate to ask them to take that schedule out and amend it by deleting the relevantly deleted particulars.  That is precisely what happened in respect of Exhibit Z.
  3. [162]
    Thirdly, when the learned trial judge did that in respect of Exhibit Z, it is plain, in my view, that when his honour asked the jury to “just confirm that that is now removed”, he was asking the jury to respond to him that they had deleted Particulars 13 and 24 from their schedules.  That is what appears in the copy of Exhibit Z at AB 2008, where Particulars 13 and 24 have a line striking through them.  Fourthly, the course taken by the learned trial judge was one with which Counsel for the appellant agreed.
  4. [163]
    There was, thus, no error and no misdirection.

Grounds 4 and 5 – discharge of juror

  1. [164]
    On Friday 2 November 2018, the learned trial judge commenced summing up to the jury.  The following Monday a note was delivered by one of the jurors.  It read:

“Your Honour, I have two personal matters to bring to your attention.

On Friday, I absentmindedly took home all my materials relating to the trial. I only discovered this when clearing out my backpack that evening, and although I cannot remember putting them into the backpack, just as once I found my car keys in the fridge, I am sure your explanation of circumstantial evidence holds true here.

The other matter is more serious, as I would like to be excused from the jury for personal reasons which involves my ability to reach a verdict in this [sic] trial after hearing how we are to adjudicate after hearing your directions on the same said Friday [sic].

I hope these two things do not cause you too much angst – but they are what they are and I want to clear them up while you are – while you still have the option of other jurors. I am more than willing to discuss either matter so you can ease your mind that they came in honest ways.

“Let clowns do your biding [sic] and you will invariably end up with a circus.” Yours – Bozo.”

  1. [165]
    The first part of the note dealing with materials taken home during the course of the trial is of no consequence, as each side agreed that it did not present an issue.  It is the second part of the note which generated a resolution which is the subject of these grounds of appeal.
  2. [166]
    In the course of submissions, the learned trial judge foreshadowed the course he was considering taking.  That involved, firstly, finding out what were the “personal reasons” to which the note referred, and for that purpose to have the juror speak to the judge.  Depending upon his response the answers might or might not be revealed.[254]  Secondly, unlike the position in R v Roberts,[255] this particular trial had the advantage of there being reserved jurors.  His Honour observed that “the real issue, it seems to me, is the section 56 issue, which is whether this juror can be impartial in accordance with their oath or affirmation”.[256]  Ultimately the learned trial judge proposed to ask whether there was a personal reason other than what had been put in the note, because “then we can just go back to the note and discuss whether the note is sufficient to either discharge or not, as the case may be”.[257]  Counsel for the appellant was content with that course.[258]
  3. [167]
    The relevant juror was asked to approach the bench.  The learned trial judge asked him whether he felt he could be impartial in the trial, and the response was “No”.[259]  There was an additional exchange where apparently the juror was asked whether he had any personal issues and, whatever the content of his answer, his difficulty was described by the learned trial judge as “he is struggling with the concept, it seems to me, of the process of only one person being on trial.”[260]
  4. [168]
    The learned trial judge discharged the juror, and replaced him with one of the reserve jurors.  His Honour recited the question and answer about whether the juror could be impartial and the terms of s 56(1)(a) of the Jury Act, which provides:

“(1) If, after a juror has been sworn –

  1. it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial;

the judge may, without discharging the whole jury, discharge the juror.”

  1. [169]
    The learned trial judge then referred to the competing contentions.  From the defence, they were that it appeared that the juror might take a view that favoured the appellant and therefore should not be discharged because that would be unfair to the defence.  On the other hand, the Crown contended that it was not known whether that juror was a dissentient, as opposed to being unwilling to participate in the necessary functions of a juror, with impartiality.  His Honour gave his reasons in this form:[261]

“In my view, given that the juror has indicated unequivocally to me in his answer that he is unable to be impartial, and given that there are two reserve jurors available (so that this would not be a case where a jury of less than 12 were to deliberate in respect of the verdict), then this juror should not be permitted to further sit on this trial. In that respect, pursuant to section 56(1)(a), I conclude that it appears to me that the juror is not impartialand that I should, therefore, without discharging the whole jury, discharge the juror.”

  1. [170]
    The appellant’s contention on appeal was that on the information before the Court, the learned trial judge was not justified in discharging the juror, and should have discharged the whole jury “after proper and full inquiries had been made of juror number four or of the jury as a whole”.[262]  It was submitted that it was not to the point to simply accept the juror was not impartial on his say so to a leading question, without actually determining that he could not be impartial, particularly in circumstances where the juror’s note suggested that he might be in the position where he could not convict.[263]

Discussion

  1. [171]
    The juror’s note sought to be excused for personal reasons which, it was said, involved that juror’s ability to reach a verdict “after hearing how we are to adjudicate after hearing your directions on …. Friday”.  The directions which had been given on the previous Friday were the standard directions concerning the determination of guilt based on the evidence, where the burden of proof lay and how that should be approached, how to deal with questions of credibility and reliability, that it was not a question of a choice between the evidence of the prosecution and the evidence of the defence, the need to consider each charge separately, how to deal with circumstantial evidence and then the elements of the charges.
  2. [172]
    The juror said two relevant things in the conversation with the learned trial judge.  First, in response to whether he could deal with the case impartially, he said “No”.  Secondly, his ability to reach a verdict after hearing the directions on the previous Friday seemed linked to his struggling with the concept of only one person being on trial.  In my view, to phrase the response in that fashion is also to indicate a lack of impartiality.
  3. [173]
    The learned trial judge understood the quality of the juror’s response as being that he was unequivocal that he could not be impartial in carrying out his functions as a juror.  The relevant provision, s 56(1)(a), is enlivened if “it appears to the judge … that the juror is not impartial”.  It is difficult to reach any other conclusion but that in this particular case the juror’s note and the juror’s response to the question asked of him made it appear to the learned trial judge that the juror could not be impartial.  On that basis alone, it was open to the learned trial judge to discharge the juror, particularly as there were reserve jurors who could take his place.
  4. [174]
    However, there is to my mind a further reason which would have warranted the discharge of that juror.  The second part of the note proclaimed that his difficulties had come “in honest ways”, but what then followed casts doubt upon the juror’s ability to properly perform his functions.  He wrote “Let clowns do your bidding and you will invariably end up with a circus”, signing off the letter by calling himself “Bozo”.  Section 56(1)(a) permits the discharge of a juror if “it appears to the judge … that the juror … ought not, for other reasons be allowed or required to act as a juror.”  The juror’s description of clowns creating a circus of the trial was worrying.  If it was meant flippantly then it bespoke an attitude towards the task that might be too casual to be appropriate.  If it was meant seriously, it bespoke an underlying difficulty with the performance of the proper function of a juror.  Either way it was, in my view, an additional basis upon which that juror should have been discharged.
  5. [175]
    Further, having questioned the juror in the way that seemed to the learned trial judge to be appropriate, and to which no objection was made, and having established that the juror himself considered that he could not be impartial, there was no necessity for the trial judge to go further and seek a more detailed inquiry.[264]  The juror had identified that he was unable to reach a verdict in the light of the directions already given, and that his concerns had come “in honest ways”.  That phrase, seen in the context of the note, indicated that the difficulties concerned himself, and no other juror.  There was no warrant in the circumstances to assume that his difficulty might have favoured acquittal, rather than conviction.  On the face of the note the juror was announcing his inability to carry out the proper task of assessing the evidence in order to determine whether the appellant was guilty of the offences charged, not any pre-disposition to one conclusion or another.
  6. [176]
    Given that there were reserve jurors available, there was no necessity to discharge the whole jury.  There was no basis to conclude that the matters of concern to that juror had been communicated to any other juror.  There was therefore no basis to conclude that the balance of the jury could not discharge their task impartially, and properly.[265]  The fact that the jury acquitted on count 1 serves as an eloquent demonstration that they knew what their task was and performed it.
  7. [177]
    This ground fails.

Application for leave to appeal against sentence

  1. [178]
    The appellant seeks to contend that the sentence which was imposed was manifestly excessive.  The learned sentencing judge sentenced the appellant to 15 months’ imprisonment, to be suspended once he had served a period of five months.  The operational period of the suspension was four years.  In addition, a restraining order was made to the effect that the appellant be prohibited from contacting, either directly or indirectly, or from approaching nominated members of the Coates family and Duetz family, their residences or place of work, for a period of 10 years commencing 9 November 2018.
  2. [179]
    The contention was that the learned sentencing judge took an approach that was “too harsh”, and “must have formed the view that the evidence supported a finding of guilt by the jury that involved likely all of the 23 particulars left in Exhibit Z”.[266]  Further, it was submitted that the learned sentencing judge’s remarks in respect of lack of remorse and an offer of mediation made by the appellant were not sound, and the sentence did not reflect the fact that the appellant was only convicted of one count when he originally faced four, two of which contained circumstances of aggravation.[267]  It was contended that a sentence “should never have been any more than 6 to 9 months wholly suspended”.[268]  For this contention reference was made to the appellant’s antecedents, that he had never been to prison, that he was acquitted on three of the four counts, that he had not reoffended for a significant period of time, and that he had suffered the costs of the trial and the loss of his builders licence.

The approach of the learned sentencing judge

  1. [180]
    The learned sentencing judge took into account the fact that the appellant had been convicted of only one count, and without the circumstance of aggravation.[269]  His Honour considered all of the Particulars left to the jury, and ruled out several from his consideration on the basis that they could have been based on misunderstanding, they were of a lesser concern or there was some reservation about them.  Those were identified as Particulars 25 and 7 (reflecting, perhaps, a misunderstanding), 27 (of a lesser concern), and 16, (a reservation about the distance between Mrs Duetz and the appellant during the incident).[270]  Subject to those matters his Honour found that the balance of the Particulars were the ones that he should take into account in assessing the course of conduct which constituted the count of stalking on which the appellant had been guilty.
  2. [181]
    His Honour’s characterisation of what he called a “serious case of stalking” is significant:
  1. (a)
    the conduct occurred because the appellant resented the neighbours making legitimate enquiries and objections to the construction;
  2. (b)
    the neighbours’ concerns were legitimate concerns;
  3. (c)
    the appellant’s reaction to those concerns exemplified “an extraordinarily narcisstic approach to success”, in which the appellant resented anyone seeking to have any right to be involved in any way in the construction;
  4. (d)
    that attitude underpinned the conduct throughout the entire two and a-half years of the stalking period;
  5. (e)
    a number of the acts constituting the stalking occurred after the appellant’s arrest on 9 September 2015;
  6. (f)
    the appellant engaged in “an ongoing and relentless campaign” against Mrs Duetz;
  7. (g)
    the conduct “was deliberate, calculated and persistent” and lasted for nearly two and a-half years;
  8. (h)
    the consequence was that Mrs Duetz suffered “severe and prolonged emotional and mental suffering”, for which the appellant was entirely responsible;
  9. (i)
    for a substantial period Mrs Duetz felt like a prisoner in her own home and “utterly trapped”, to the point that she was driven from her home;
  10. (j)
    the conduct extended to an attempt to prevent the Duetzs from moving, by putting up the ACA banner and sending an email to the real estate agents; and
  11. (k)
    His Honour described this as the appellant “trying to stop them getting away from the nightmare that they’d found themselves in”.
  1. [182]
    The learned sentencing judge acknowledged that it was the appellant’s right to take the matter to trial, and that it had a degree of success.  However, his Honour considered that there was a failure to demonstrate any remorse.  It had been urged that the appellant’s offer to mediate should be seen in that light.  The only evidence of that offer was in a submission by counsel for the appellant in these terms:[271]

“… we offered on more than five or six occasions that I know of – and even in open court after suggestions by judges to mediate this matter - … I think we went as far as saying, “Okay, well, if there is this thought and then we’ll apologise.” We offered to participate in all of those – completely and wholly rejected by Mr Coates and his family, and completely and wholly rejected despite comments by, at least two judges and possibly three that that was the way to go.”

  1. [183]
    The Crown’s response to the offer of mediation was that it was “almost a sick joke”, because at the time it was made the Duetzs had already moved away, and had been away for some time.  As far as they were concerned “there was nothing to mediate”.[272]  Additionally, it was submitted that it was most unlikely that the appellant would have adhered to the terms of mediation.
  2. [184]
    The learned sentencing judge said that he could understand why “it had little to offer the Coates and Duetz family”, and “there was not a lot on offer”.[273]
  3. [185]
    The learned sentencing judge referred to the appellant’s antecedents.  This included: (i) his age, (ii) his minor and effectively irrelevant criminal history, (iii) his excellent work history and the fact that he had worked hard all his life, (iv) the fact that he had not worked as a builder for the last three and half years but had achieved well in financial terms, and (v) the support indicated in the various references tendered on his behalf.[274]
  4. [186]
    Further, the learned sentencing judge referred to and evidently considered a number of cases put forward as comparable.  They included R v Coutts,[275] R v Ali,[276] R v Conde,[277] and R v Walton.[278]

Discussion

  1. [187]
    I am unable to accept the appellant’s contentions.  The view taken by the learned sentencing judge was not harsh, given the nature of the offending, signified by the jury’s conclusion of guilt.  His Honour discounted a number of the Particulars but there was no reason to take the view that the conclusion of guilt did not signify an acceptance of Mrs Duetz’s evidence about what occurred.  After all, the defence case, and the appellant’s evidence, was that most of them did not occur, or did not involve the appellant.  Plainly the jury came to a different conclusion.  And there was support for Mrs Duetz’s evidence as to some, from her husband and her son.
  2. [188]
    The learned sentencing judge was right, in my respectful view, to characterise the conduct as deliberate, calculated and persistent, and a relentless campaign against Mrs Duetz.  It was also right to conclude, in my respectful view, that the offending had a very significant adverse impact upon Mrs Duetz, to the point where she felt it necessary to move away and keep secret her ultimate destination.  Some criticism was levelled at the learned sentencing judge describing Mrs Deutz’s statement, that she had not been back to her street for two and a-half years and could not face going back to that street, as a “chilling comment”.  That comment was, in my view, entirely justified.  Having been driven out by the appellant’s persistent and belligerent campaign, it was a significant marker of the emotional and psychological impact of the offence that Mrs Duetz could not even face going back to the street.
  3. [189]
    The offer to mediate was, in my view, rightly discounted.  In the circumstances, even if it was genuinely made, it was completely futile.  To say that there was “not a lot on offer” is an understatement.  The offer to mediate would effectively bring Mrs Duetz face to face with the appellant, in circumstances where he had been the architect of a campaign which had driven her out of her house and inflicted significant distress and misery upon her and her family.  It would not have been surprising had the learned sentencing judge doubted the sincerity of the offer.
  4. [190]
    Further, in my view, the learned sentencing judge was completely correct to categorise the case as one where there was a complete lack of remorse.  Of course the appellant was entitled to take the matter to trial and his partial success justified that.  However, the trial was conducted on the basis that the appellant was not sorry for anything which had occurred, disputed that some of the events had happened at all, and attacked Mrs Duetz as a liar and someone prepared to collude as to evidence, and in some cases the protagonist.  None of that bespeaks the slightest remorse on the appellant’s part.
  5. [191]
    I am unable to reach the conclusion that the learned sentencing judge omitted any relevant factor in his sentencing remarks.  Such mitigating factors as there were, the lack of any previous criminal history, excellent work history, the inability to work as a builder for three and a half years, and the support in references, were all taken into account.
  6. [192]
    The learned sentencing judge found most assistance with Coutts.  In that case the offender pleaded guilty to one count of unlawful stalking with violence, and was sentenced to 18 months’ imprisonment with parole release after six months were served.  The offending took place over a nine month period, the complainant being a neighbour of the offender.  The conduct included yelling abuse and obscene abuse, threats and an abusive text.  The conduct caused the complainant (a 71 year old woman who had lived in her home for 35 years) significant distress to the point she had become afraid to leave her own house.  The conduct was characterised by the primary sentencing judge as “callous and wicked” and a “deliberate course of revenge”.  This Court did not interfere with the sentence imposed.
  7. [193]
    In Conde, the offender was convicted after a trial on one count of unlawful stalking with a circumstance of aggravation, namely the use of violence.  He was sentenced to a term of 15 months’ imprisonment, suspended after seven months.  The conduct took place over a period of two years, consisting largely of sending emails to the complainant’s firm.  The emails described the complainant as a witch and sometimes included images of witches.  One act involved the offender throwing papers (court documents to be served) in such a way as to hit the complainant in the face.  In all there were 59 particularised acts, most of which were admitted to have occurred, though they were denied to be offences.  The one which was not admitted was one ultimately not accepted by the jury.  As the case concerned an appeal against conviction, there is no authoritative statement to be drawn from this Court in that case.  Nonetheless it provides an example of a first instance sentence for prolonged stalking where one of the acts involved the use of violence.
  8. [194]
    Walton involved a plea of guilty to three counts of stalking, which resulted in a sentence of six months imprisonment, wholly suspended.  The offending was of a wholly different kind to that in the present case, consisting of persistent telephone calls from a wife who had separated from her husband to the husband’s new partner.  The offending was over distinct periods: (i) in one month, 330 calls with up to 50 calls in a single day, the calls being abusive and obscene; and (ii) over a period of about three months when over 100 calls of a similar nature were made.
  9. [195]
    Her sentence reflected the offender’s lack of criminal history, cooperation, early plea of guilty, good work history, references and medical conditions.  It also represented what was described as “abnormal behaviour” against the background of the marital breakdown.  The issue for this Court was whether the sentence should have included a term of imprisonment, even though it was suspended.  This Court declined to interfere.
  10. [196]
    The appellant also referred to R v Oliver.[279]  That decision does not assist for a number of reasons, including that it was based on a plea of guilty, the offending was out of character, the offending was the result of the impact of stressors in the offender’s life and his weakness in resorting to drugs, and in the period subsequent to the offending there had been significant rehabilitation.
  11. [197]
    I am unpersuaded that the sentence can be demonstrated to be manifestly excessive.  The appellant can only succeed if it can be established that the sentence imposed is so different from other comparable sentences that there must have been a misapplication of principle or that the sentence imposed is unreasonable or plainly unjust.[280]  When considering the question of manifest excess, recognition must be given to the principle that comparable authorities do not mark with numerical precision, the outer bounds of a sentencing judge’s permissible discretion.[281]  In my view, the sentence imposed does not warrant the conclusion that it is plainly unjust.
  12. [198]
    The application for leave to appeal against sentence should be refused.

Conclusion and orders

  1. [199]
    For the reasons which I have expressed above, the appeal against conviction should be dismissed.  On a review of the whole of the evidence it was open to the jury to find the appellant guilty.  I am not persuaded that an innocent person has been convicted.  Further, leave to appeal against the sentence should be refused.
  2. [200]
    I propose the following orders:
    1. The appeal against conviction is dismissed.
    2. The application for leave to appeal against sentence is refused.
  3. [201]
    BOWSKILL J:  I agree with the reasons of Morrison JA, and with the orders proposed by his Honour.

Footnotes

[1]  Exhibit Z, AB2008.  Particulars 5, 13, 19, 20, 24, 28 and 29 were deleted and are not reproduced in the schedule.

[2]  Qualified but never practised.

[3]  AB 970-971.

[4]  AB 972 line 38.

[5]  AB 973 lines 37-44.

[6]  AB 974.

[7]  AB 974 line 11.

[8]  AB 975 lines 40-47.

[9]  AB 976 lines 11-13.

[10]  AB 977 lines 8-28.

[11]  AB 979-980.

[12]  AB 982 line 26.

[13]  AB 982 lines 35-38.

[14]  AB 983.

[15]  AB 995 lines 19-21.

[16]  AB 995 line 42.

[17]  AB 996.

[18]  AB 997 line 8.

[19]  AB 997 line 37.

[20]  AB 997 line 41.

[21]  AB 998.

[22]  AB 999 line 8.

[23]  AB 999.

[24]  AB 1000 line 15.

[25]  AB 1005 lines 1 – 7.

[26]  AB 1006 line 8.

[27]  AB 1006 line 20.

[28]  AB 1006 line 28.

[29]  AB 1006 line 39.

[30]  AB 1007 line 20.

[31]  AB 1011 – 1012.

[32]  AB 1012 lines 17-38.

[33]  AB 1013 line 30.

[34]  This evidence came first hand from the son, Angus Duetz; Mrs Duetz had the words written on a piece of paper and they were emailed to the police.

[35]  AB 1013 line 25.

[36]  AB 1014.

[37]  AB 1015 lines 33-43.

[38]  AB 1016 line 40.

[39]  Mrs Duetz couldn’t recall the exact date.

[40]  AB 1017.  It was accepted at the trial that there had been a programme on “A Current Affair” featuring the appellant and his construction.

[41]  AB 1017 lines 42-45.

[42]  AB 1018.

[43]  AB 1019 lines 5-8.

[44]  For example at AB 1022 line 5; AB 1033 line 45; AB 1046 lines 4 – 10; AB 1095 line 5; and AB 1222 lines 42 – 44.

[45]  AB 1024 line 38.

[46]  AB 1029 lines 31 – 34.

[47]  AB 1026 lines 20 – 24.

[48]  AB 1043 lines 29 – 31; AB 1061 lines 35 – 38; and AB 1077 line 36.

[49]  AB 1209 lines 15 - 24.

[50]  AB 1030 line 39 to AB 1031 line 3.

[51]  AB 1031.

[52]  AB 1032 line 29 to AB 1033 line 3.

[53]  AB 1033 line 35.

[54]  AB 1044 line 36 to AB 1045 line 17.

[55] AB 1041.

[56]  AB 1042 lines 20 – 37.

[57]  AB 1043 lines 1 – 27.

[58]  AB 1043 lines 37 –42.

[59]  AB 1059 lines 41 – 45.

[60]  AB 1087.

[61]  AB 1088.

[62]  AB 1094 line 40 to AB 1095 line 6.

[63]  AB 1096 lines 9 -14.

[64]  AB 1205 lines 35 – 42.

[65]  AB 1208 lines 11 0 15.

[66]  AB 1208 lines 20 –25; AB 1209 –1210.

[67]  AB 1211.

[68]  AB 1211 line 25 to AB 1212 line 10.

[69]  AB 1213 lines 35 – 38.

[70]  AB 1212.

[71]  AB 1218 line 41 to AB 1219 line 14.

[72]  AB 1219.

[73]  AB 1116 line 43.

[74]  AB 1117 lines 1-4.

[75]  AB 1117 line 30.

[76]  AB 1121 line 5.

[77]  AB 1121 line 17.

[78]  AB 1121 line 25.

[79]  AB 1122 lines 39-44.

[80]  AB 1122 line 46.

[81]  AB 1124 lines 28-32.

[82]  AB 1126 lines 9-19.

[83]  AB 1131 lines 32-39.

[84]  AB 1133 line 19.

[85]  AB 1134 lines 40-44; AB 1135 line 4.

[86]  AB 1135 lines 42-46, AB 1137 lines 1-5.

[87]  The local Councillor.

[88]  AB 1149-1150.

[89]  AB 1149 lines 36-39.

[90]  AB 1152.

[91]  AB 1152 line 19.

[92]  Subject of item 3.

[93]  AB 1153 lines 23-29.

[94]  AB 1153 lines 31-33.

[95]  AB 1155 lines 2-8.

[96]  AB 1156.

[97]  AB 1157 lines 1-3.

[98]  AB 1157 lines 11-13.

[99]  AB 1161 lines 34-45.

[100]  AB 1162 lines 42 to AB 1163 line 2.

[101]  AB 1163 lines 4-8.

[102]  AB 1163 lines 10-23.

[103]  AB 1167 line 42 to AB 1168 line 2.

[104]  AB 1167 line 47.

[105]  AB 1168 lines 27-30.

[106]  AB 1168 lines 35-47.

[107]  AB 1169 lines 30-34.

[108]  AB 1170 lines 9-19.

[109]  AB 1170 lines 34-43.

[110]  AB 1171 lines 20-28.

[111]  AB 1171 line 33.

[112]  AB 1171 lines 40-44.

[113]  AB 1172 lines 25-27.

[114]  AB 1172 line 42.

[115]  AB 1173 lines 42-45.

[116]  AB 1174 lines 1-3.

[117]  AB 1179 line 40 to AB 1180 line 5.

[118]  AB 1182 line 37.

[119]  AB 1245 lines 4 – 9.

[120]  AB 1245 lines 34 – 40.

[121]  AB 1246 lines 32 – 36.

[122]  AB1247 lines 34 – 43.

[123]  AB 1248 line 11.

[124]  AB 1249 lines 15 – 19.

[125]  AB 1249 line 36 to AB 1250 line 2.

[126]  AB 734 line 27.

[127]  The position of the jetty in relation to the boundary, the height of an engineering of boundary walls, and fencing on the Riparian line.

[128]  AB 741 line 31.

[129]  AB 773 – 774.

[130]  AB 804 lines 1 – 13.

[131]  AB 807 line 20 to AB 808 line 9.

[132]  AB 808 line 23.

[133]  AB 885 – 886.

[134]  AB 930 line 45 to AB 931 line 9.

[135]  AB 1332.

[136]  AB 1336.

[137]  AB 1336 line 46.

[138]  AB 1337 line 6.

[139]  AB 1337-1338.

[140]  AB 1340-1342.

[141]  AB 1343 lines 23-35.

[142]  AB 1343 line 40.  The word “did” appears in the transcript but is clearly a typographical error and should say “didn’t”.

[143]  AB 1353-1354.

[144]  AB 1354 line 44.

[145]  AB 1355.

[146]  AB 1360.

[147]  AB 1360 line 28.

[148]  AB 1361.

[149]  AB 1361 lines 7-15.

[150]  AB 1361 line 26.

[151]  AB 1362 line 20.

[152]  AB 1365.

[153]  AB 1365 line 41.

[154]  AB 1366 lines 16-29.

[155]  AB 1367 lines 12-24.

[156]  AB 1367 line 26 to AB 1368 line 4.

[157]  AB 1368 lines 31-41.

[158]  AB 1369 lines 1-17.

[159]  AB 1374 lines 10-15.

[160]  The question at AB 1389 line 32 stated the year as 2013, but it plainly relates to item 16.

[161]  AB 1389 lines 35-46.

[162]  AB 1390 line 8.

[163]  AB 1390 lines 22-28.

[164]  AB 1395 line 35.

[165]  AB 1395 lines 43-47.

[166]  AB 1396 lines 1-2.

[167]  AB 1396 lines 20-40.

[168]  AB 1397 lines 4-13.

[169]  AB 1403 lines 7-14.

[170]  AB 1404 line 45.

[171]  AB 1405.

[172]  AB 1406 lines 23-31.

[173]  AB 1410-1411.

[174]  AB 1437.

[175]  AB 1437 lines 31-33.

[176]  AB 1437 line 36.

[177]  AB 1437 line 44.

[178]  AB 1439 lines 1-3.

[179]  AB 1443 lines 11-19.

[180]  AB 1445 line 21.

[181]  AB 1445 line 46.

[182]  AB 1446.

[183]  AB 1467 line 15.

[184]  AB 1467 lines 17-22.

[185]  AB 1468 line 19.

[186]  AB 1468 lines 26-28.

[187]  AB 1468 line 39 to AB 1469 line 26.

[188]  AB 1472 lines 33-40; AB 1474 lines 6-23.

[189]  AB 1474 line 29.

[190]  AB 1474 line 39.

[191]  AB 1477 line 41.

[192]  AB 1478 line 24.

[193]  AB 1478 lines 32-38.

[194]  AB 1479 lines 11-36.

[195]  AB 1479 line 41 to AB 1480 line 5.

[196]  AB 1480 lines 11-27.

[197]  AB 1486 lines 22-24.

[198]  AB 1486 line 40 to AB 1487 line 13.

[199]  AB 1488 lines 29-38.

[200]  AB 1489.

[201]  AB 1500 lines 8-10.

[202]  AB 1500 line 21.

[203]  AB 1500 lines 27-46.

[204]  AB 1513 lines 27-31.

[205]  AB 1514 line 1.

[206]  AB 1514 lines 7-9.

[207]  AB 1514 lines 15-31.

[208]  AB 1518 line 23.

[209]  AB 1518 lines 38-40.

[210]  AB 1519 line 44.

[211]  Appellant’s Outline, paragraph 24.

[212]  Appellant’s Outline, paragraph 25.

[213]  Appellant’s Outline, paragraph 26 and 27.

[214]  For example Particulars 6, 16 and 22.

[215]  Particulars 4, 7, 8 and 22.

[216]  See s 359C(2).

[217]  Particulars 4 and 8.

[218]  Particular 22.

[219]  Particular 21.

[220]  AB 972.

[221]  AB 973-974.

[222]  AB 974.

[223]  AB 976 line 11.

[224]  AB 977.

[225]  AB 982.

[226]  AB 995.

[227]  AB 997.

[228]  AB 996.

[229]  AB 998.

[230]  AB 998.

[231]  AB 999.

[232]  AB 998 lines 38-41.

[233]  AB 999 lines 1-4.

[234]  Particular 14, AB 999 line 21; Particular 15, AB 1000 line 44; Particular 17, AB 1006 line 28; Particular 18, AB 1007 lines 38-40; Particular 21, AB 1012 line 14; Particular 22, AB 1013 lines 25-31; Particular 23, AB 1015 lines 24-26; Particular 25, AB 1014 lines 12-22; Particular 26, AB 1014 line 42; Particular 27, AB 1018 line 25; and Particular 30, AB 1019 line 4.

[235]  AB 1005 lines 3-8.

[236]  AB 1006 lines 8-11.

[237]  AB 199 line 19 to AB 200 line 10.

[238]  AB 123 line 11 to AB 129 line 32.

[239]  AB 124 (pointing into the bedroom); AB 125-126 (not commissioned until October 2015).

[240]  Appellant’s outline, paragraph 29.

[241]  Appellant’s outline, paragraph 34.

[242]  AB 1997.

[243]  AB 2008.

[244]  AB 1677 lines 8-26 and AB 1705 lines 16-26.

[245]  AB 1655 lines 32-40.

[246]  AB 1655 line 43.

[247]  AB 1655 lines 44-46.

[248]  AB 1705 lines 16-26.

[249]  AB 1718 line 19.

[250]  AB 1717 line 36 to AB 1718 line 35.

[251]  AB 219 lines 16-28.

[252]  AB 321 line 5.

[253]  AB 321 lines 23-27.

[254]  AB 236 line 45 to AB 237 line 37.

[255]  [2004] QCA 366.

[256]  AB 237 line 41.

[257]  AB 239 lines 2-5.

[258]  AB 239 line 7.

[259]  AB 240 line 14 and AB 251 line 20.

[260]  AB 241 line 18.

[261]  AB 251.

[262]  Appellant’s outline, paragraph 38.

[263]  Appellant’s outline, paragraphs 39 and 40.

[264] Wu v The Queen (1999) 199 CLR 99 at 105 [16].

[265]R v Czajkowski (2002) 137 A Crim R 111 at 118 [30].

[266]  Appellant’s Outline at paragraph 56.

[267]  Appellant’s Outline at paragraph 58.

[268]  Appellant’s Outline at paragraph 60.

[269]  AB 1766 lines 3-9.

[270]  AB 1766 lines 32-37, AB 1767 line 32 and AB 1767 lines 44-45.

[271]  AB 1753 lines 27-32.

[272]  AB 1757 line 43.

[273]  AB 1770 line 36.

[274]  AB 1771.

[275]  [2016] QCA 206.

[276]  [2002] QCA 64.

[277]  [2015] QCA 63.

[278]  [2006] QCA 522.

[279]  [2018] QCA 348.

[280] R v Tout [2012] QCA 296 at [8].

[281] R v Heckendorf [2017] QCA 59 at [21].

Close

Editorial Notes

  • Published Case Name:

    R v Tarasiuk

  • Shortened Case Name:

    R v Tarasiuk

  • MNC:

    [2019] QCA 165

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, Morrison JA, Bowskill J

  • Date:

    30 Aug 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC2553/18 (No Citation) 08 Nov 2018 Date of Conviction (Dearden DCJ).
Primary Judgment DC2553/18 (No Citation) 09 Nov 2018 Date of Sentence (Dearden DCJ).
Appeal Determined (QCA) [2019] QCA 165 30 Aug 2019 Appeal against conviction dismissed; application for leave to appeal against sentence refused: Gotterson and Morrison JJA and Bowskill J.

Appeal Status

{solid} Appeal Determined (QCA)