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  • Unreported Judgment

Tierney v Commissioner of Police

 

[2020] QDC 4

DISTRICT COURT OF QUEENSLAND

CITATION:

Tierney v Commissioner of Police [2020] QDC 4

PARTIES:

NOEL JAMES TIERNEY
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO:

212/2018

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Noosa

DELIVERED ON:

29 January 2020

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

11 October 2019

JUDGE:

Long SC, DCJ

ORDERS:

The order made in the Magistrates Court at Noosa on 30 November 2018, that the defendant be found guilty of the offence of unlawful stalking is set aside and replaced with an order that the defendant is found not guilty of that offence.

The consequential orders made on 30 November 2018, are set aside, except for the restraining order made pursuant to s 359F Criminal Code, which is varied to continue in force up to and including 29 November 2020.

The issues as to costs are reserved and adjourned to be heard on the papers, with directions as to written submissions.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION AND SENTENCE – s 222 of the Justices Act 1886 – Where the appellant was convicted after trial in the Magistrates Court of an offence of unlawful stalking – Where the appellant was sentenced to 12 months probation with a special condition and no conviction was recorded – Where the magistrate made a restraining order pursuant to s 359F Criminal Code for a period of 5 years, awarded $1,000 by way of compensation to the complainant and ordered the appellant pay $750 for witness expenses- Whether the magistrate’s verdict was unreasonable and unsupported by the evidence – Whether there was a proper basis supporting the magistrate’s finding as to the causation of relevant apprehension or fear of violence – Consideration of the meaning of “personal injury” in s 35(1)(c) Penalties and Sentences Act 1992.

LEGISLATION:

Criminal Code, ss 359A, 359B, 359C, 359E, 359F, 663A

Criminal Offence Victims Act 1995, s 20

Criminal Offence Victim Regulation 1995, s 1A

Justices Act 1886, s 223

Penalties and Sentences Act 1992, s 35(1)(c)

Victims of Crime Assistance Act 2009, s 27(1)

CASES:

Edwards v The Queen (1993) 178 CLR 193

Fox v Percy (2003) 214 CLR 118

JS (an infant) v Graveur [2013] 1 Qd R 127

R v Kazakoff, ex parte Ferguson  [2001] 2 Qd R 320

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679

Shepherd v The Queen (1990) 170 CLR 573

Vlug v Carrasco [2007] 2 Qd R 393

Zoneff v The Queen (2000) 200 CLR 234

COUNSEL:

C F C Wilson for the appellant

K A Milbourne for the respondent

SOLICITORS:

Wallace O’Hagan Lawyers for the appellant

Commissioner of Police for the respondent

Introduction

  1. [1]
    On 23 and 30 September 2018 the appellant was tried, in the Magistrates Court at Noosa, and on 30 November 2018 was convicted and sentenced in respect of an offence of unlawful stalking. By notice of appeal filed 20 December 2018, he appeals in respect of his conviction or the finding of guilt in respect of that offence and also some aspects of the sentencing orders made as a consequence of his conviction.
  1. [2]
    Consequently to finding him guilty, the magistrate made orders imposing a period of 12 months’ probation with a condition that the appellant submit to such medical, psychiatric or psychological assessment or treatment as directed by an authorised corrective services officer, and in addition:
  1. (a)
    made a restraining order pursuant to s 359F of the Criminal Code, preventing the appellant from contacting or following the complainant and attending her residence or place of work, for a period of five years;
  1. (b)
    awarded $1,000 by way of compensation to the complainant;
  1. (c)
    ordered the appellant to pay witness expenses in the sum of $750; and
  1. (d)
    ordered that no conviction be recorded for the offence.
  1. [3]
    The appellant challenges only the making of the restraining order for a period of five years and the making of the compensation order. It may be necessary to return to these issues after considering the appeal brought in respect of his conviction.

The Circumstances

  1. [4]
    The prosecution allegation was that the offence was committed between 1 November 2017 and 17 March 2018, at Noosaville. It was alleged that the appellant engaged in conduct which was intentionally directed at the complainant, by:
  1. (a)
    loitering near, approaching and entering the place where she worked at Noosa Radiology; and
  1. (b)
    on 16 March 2018, following the complainant in a motor vehicle from a street near her place of residence to her place of work on Goodchap Street, Noosaville.
  1. [5]
    It was further alleged that those behaviours caused the complainant:
  1. (a)
    apprehension or fear of violence; and
  1. (b)
    a detriment, being changes and modification to her behaviour.[1]

Although this was the stated particularisation of the allegation at the outset of the hearing, it may immediately be noted to be problematic in terms of the element of the offence set out at s 359B(d), which requires that the conduct, involving acts of the specified types, either:

  1. “(i)
    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
  1. (ii)
    causes detriment, reasonably arising in all of the circumstances, to the stalked person or another person.”

Although it is to be noted that in s 359A “detriment” is defined in the following way:

Detriment includes the following –

  1. (a)
    apprehension or fear of violence to, or against property of, the stalked person or another person;
  1. (b)
    serious mental, psychological or emotional harm;
  1. (c)
    prevention or hindrance from doing an act a person is lawfully entitled to do;
  1. (d)
    compulsion to do an act a person is lawfully entitled to abstain from doing.”
  1. [6]
    Relevantly to the conviction of the appellant, the stated ground of appeal is that the magistrate’s verdict was unreasonable and unsupported by the evidence. Although the written submissions of the appellant are directed only at the magistrate’s finding in respect of the intentional direction of conduct at the complainant and consistently with submissions made to the magistrate at trial, on the oral hearing the appellant also contended that there was no proper basis supporting the magistrate’s finding as to the causation of relevant apprehension or fear.
  1. [7]
    The appellant elected not to give evidence at his trial. And although the prosecution case included evidence of a recorded interview with the defendant and other assertions he had made to the investigating police, no issue was taken with the magistrate’s finding that he was not prepared to act upon any of the uncorroborated assertions of the appellant, having regard to the inconsistencies in the various assertions that he made and the extent to which the prosecution demonstrated that some assertions (at least taken at face value) were not apparently substantiated by other evidence.
  1. [8]
    The complainant gave the following evidence:
  1. (a)
    during the relevant period she was aged 21;[2]
  1. (b)
    she worked at Noosa Radiology, Monday to Friday and on the occasional Saturday.  On each Wednesday she would start at 6.15am in order to open the clinic at 6.45am, when she would be there as the only receptionist until 7.45am. On the other days she would start later;[3]
  1. (c)
    towards the end of 2017, she began to recognise a man who would walk in around 7.00am and apparently with or behind another patient, on the Wednesday when she commenced early.  On one occasion she saw him running in order to walk in at the same time as another patient;[4]
  1. (d)
    she described that the man would always have his phone up to his ear as he walked in and when he later left, but she did not ever hear him talking on the phone and never saw his mouth move;[5]
  1. (e)
    she observed him to be flicking through a newspaper or to be “on his phone”;[6]
  1. (f)
    occasionally when she looked at him he would be looking at her;[7]
  1. (g)
    on one occasion she approached and asked if she could help and he said he was waiting for his son, sat there for another 30 seconds to a minute and then walked out and did not return;[8]
  1. (h)
    she identified the appellant, in the court room, as that man;[9]
  1. (i)
    on Wednesday, 14 March 2018 she observed a particular car pull up and saw the appellant get out of that car and walk in to her place of work.  She noted a distinctive appearance of the vehicle and that the registration numbers were 992;[10]
  1. [9]
    The complainant also described that on Friday, 16 March 2018 she left her residence at around 9.00am in order to drive her usual route to work. At the end of her street (although later clarified to be near the intersection of Swan Street and Weyba Road) she saw the appellant’s car and recognised him in it and observed him to do a U-turn from a parked position on the other side of the street and facing in the opposite direction, so that his vehicle was immediately behind her.[11]  She then described a course of travel as follows:
  1. (a)
    She turned on to Weyba Road and another car came behind her, before the appellant’s vehicle was situated behind that vehicle.  She then described, by reference to street maps, a course of travel through a roundabout and into Mary Street, Gibson Road and a left turn into Eumundi Road, before turning right into Goodchap Street and from there into the car park leading to her place of work, and that during this course of travel the appellant’s vehicle remained behind her and from a point in Gibson Road, about the position of Harvey Norman Noosaville, that vehicle was following directly behind her, at a normal distance;[12]
  1. (b)
    As she arrived at the car park to her place of work and drove in, the appellant’s vehicle just continued along Goodchap Street. The complainant drove to the underground car park and raced straight up to work and she was very cautious, constantly looking around.  She described thinking that there was another entry to the car park, so she was not sure where he would be;[13]
  1. (c)
    She also gave evidence that:

“And then when you arrived at your work or just tell me about what happened when you got towards your workplace? --- So, when I was heading towards my workplace, I turned in and was heading down to our underground carpark.  Even before that, I was quite worried and scared and quite anxious that if he was to follow me, what could happen, I guess, and what – yeah.  If he was to follow me to our underground car park what – what could happen.  I’m sure there wouldn’t have been many people around if he was to assault me or to corner me in there.  I was worried and quite anxious and very scared and stressed about it all, what could have happened.  Yeah.

Could I just when – when did you start feeling like that? --- Probably the closer I got to work and realising he was still behind me.  Yeah.

Okay.  So, you said you were worried that he might assault you? --- Yes.

Tell me more about that? --- Yeah.  Just worried he would corner me in the carpark and assault or sexual assault or anything that he could do as there aren’t a lot of people that are in the carparks.  So I was just worried that – yeah.  It could happen.

…..

Tell me about what happened then, when you went to park your vehicle? --- Yeah.  I went to park my vehicle.  I then raced straight up to work and was, even then, was very cautious.  Constantly looking around.  I mean, he could have driven past that entry but there’s another entry.  So I just wasn’t sure ---

Yep? --- where he would be.  So, I was – yeah.  Looking over my shoulder and just really wary about heading up to work”;[14]

  1. (d)
    The complainant then described that she told others at her workplace what had happened and spoke to her mother by telephone, and consequently, she moved her car to the car park in front of her workplace where it could be seen, whilst speaking to her mother on the telephone as she walked to the car. And later that evening told her father.[15]
  1. (e)
    After that, for about a month, there was a buddy system put in place at work, where the staff would go to their cars in pairs.  For about two weeks she was allowed to park in the visitors parking rather than on the street.  Sensor lights were also installed at the underground car park at work.  And she described constantly looking over her back and being very cautious and wary and constantly feeling worried.[16]
  1. (f)
    She described that, as a result, she feels that whenever she is hopping into her car and driving she is constantly looking over her shoulder, worried, quite anxious about who could be around and that she was worried and upset and felt uncomfortable in her own home;[17]
  1. (g)
    She did not see the appellant or his vehicle again after 16 March 2018.[18]
  1. [10]
    In cross-examination, the complainant confirmed that she felt fear of assault or sexual assault only on the day her car was followed and not when the appellant was sitting reading newspapers in the clinic.[19]
  1. [11]
    Nicole Wall was also, at relevant times, a medical receptionist at Noosa Radiology and she gave evidence that:
  1. (a)
    she worked the early shift on Mondays from 6.00am to 2.30pm and that the next receptionist did not start until 7.30am;[20]
  1. (b)
    from roughly around August 2017 the appellant came in on her early shift, every week.  He would arrive at the same time every morning and enter with his phone to his ear and proceed to take a seat but always when patients had arrived for their appointments.  She noticed that the time he spent in the clinic became shorter in that he would just come in, sit down for five minutes and then leave;[21]
  1. (c)
    she identified the appellant as the man who came in, described him as always wearing a cap and that she never heard him have a conversation;[22]
  1. (d)
    on one occasion she asked him if he needed a hand or could help him and he just said no;[23]
  1. (e)
    she confirmed that on 16 March 2018, the complainant was really frazzled, really uneasy and appeared scared and shaken, when she reported being followed by the man;[24]
  1. (f)
    on Monday, 19 March 2018 she confirmed that the complainant’s father was there around 7.00am and he approached the man, with the consequence that they both came back towards the clinic and that the appellant came to the front desk and was asking questions about his knee and what he needed to do to get it looked at.  He then left.  This was the first time the appellant had come to the counter and said anything about a sore knee to her;[25] and
  1. (g)
    under cross-examination, she agreed that she called him “the newspaper man” and until then she thought it was just weird, in that an old man was coming in to read the newspaper and did not get concerned about it until the complainant said that he had followed her.[26]
  1. [12]
    The complainant’s father gave evidence that:
  1. (a)
    on 16 March 2018 the complainant told him about the appellant following her to work and gave a description of him and his car.  He observed her to be quite concerned;[27]
  1. (b)
    on Monday, 19 March 2018 he went to Noosa Radiology, noticed a vehicle that matched his daughter’s description and he waited nearby.  He approached and spoke with the appellant who told him that he had only come there once and that he has a sore knee.  He then observed the appellant go into reception, to try and organise an appointment and then followed the appellant as he walked out.  He saw the appellant had two or three papers like the Sunshine Coast Daily on the front passenger seat of his vehicle.[28]
  1. [13]
    The practice manager at the Noosa Radiology Clinic, Sandra Rogers, gave the following evidence:
  1. (a)
    that she had been made aware, by three staff members, including the complainant, of the behaviour of a man coming into the clinic as each of those staff members respectively worked the early opening period on Mondays, Wednesdays and Thursdays;[29]
  1. (b)
    she went in on a Monday to observe what was occurring.  She described the appellant coming in ‘sort of behind a patient’, around 6.50am and that he proceeded to walk straight over and sit in the couch at the end of the counter.  When Nicole indicated “it’s him” she leaned forward and said “can I help you?”.  He replied “I’m waiting for my son”, put his phone up to his ear and stood up and walked out, “all in one motion”;[30]
  1. (c)
    she saw him on one other occasion.  It was a Wednesday around 6.55am and when the complainant was working the early shift.  The appellant had a rolled up newspaper.  She was walking from the car park and was at the top of the stairs.  She described that the appellant had a newspaper stuck down his shirt.[31]
  1. [14]
    A recording of an interview conducted with the appellant on 23 March 2018, was tendered and marked as Exhibit 4, at trial. It is unnecessary to traverse what was said by the appellant, as the magistrate found, in the context of what he otherwise found to be some lies told by the appellant when he did speak to anyone at the radiology clinic,[32] that there was otherwise demonstrated to be such lies or lack of reliability in the changeable assertions of the appellant, such that he rejected any reliance to be placed on anything he said by way of explaining his conduct.
  1. [15]
    It is to be noted that the prosecution did set out to particularly disprove some assertions made by the appellant in that interview and particularly that his presence in his parked car in Swan Street on Friday 16 March 2018, was or could be linked to his having attended at a nearby Aldi store. A similar approach was also taken to his different assertion, upon being charged and told that the investigating officer had reviewed CCTV footage from the Aldi store, from opening until midday, and that did not disclose his having attended there, when he said:

“I now remember.  I didn’t go to Aldi.  I went to Noosa Family Medical Practice.  If you go there and look at their CCTV footage, you’ll see me on it.”

  1. [16]
    However, the method of seeking to disprove that later assertion was by the evidence of two medical receptionists at the Noosa Family Practice, who were shown a photo board by police, without their recognising the appellant’s photograph on such a board. In the case of Ms Burgess, she saw the photo board on 3 August 2018 and otherwise when asked, indicated that she had not seen the defendant in court, before. In the case of Ms Sinclair, she also indicated that she had never seen the defendant in the court room, previously and that she had viewed the photo board in September.
  1. [17]
    The prosecution contention, which was not accepted by the magistrate, was that the proven lies of the appellant were demonstrative of his consciousness of guilt of the charged offence. However, and in reference to the principles to be applied to such a contention, as established in Edwards v The Queen,[33] the magistrate was not prepared to reason in such a way, but rather concluded that:

“You clearly cannot take anything this man says that is not corroborated by any other evidence, as being truthful.  And I reject his interview.”[34]

Accordingly and consistently with the principles discussed in Zoneff v The Queen,[35] the magistrate proceeded upon the basis that any explanations given by the defendant for any of his behaviours (such as suggesting that a reason for him going to the radiology clinic was in order to read or peruse the newspapers provided to clients there) were simply put aside.[36] 

  1. [18]
    It is unnecessary to further consider the reasoning of the magistrate in this respect, as it would appear to be, in a broad sense, consistent with the well-recognised limitations of reasoning in the manner sought by the prosecution and neither party contends that there was any error in the magistrate’s reasoning or conclusion on this point.

Principles to be applied to this appeal

  1. [19]
    This appeal is to be conducted as a rehearing on the evidence in the proceedings below.[37]  As noted in the respondent’s submissions,[38] the obligation of the Court has been noted as follows:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences.”[39] (Citations omitted)

To similar effect, reference may be made to the cited passage in the earlier decision in Fox v Percy:

“In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable' or ‘contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.”[40] (citations omitted)

Further and earlier in that judgment, it had been stated in respect of the role of courts empowered with such appellate decision making:

“Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”[41]

  1. [20]
    In this case and although the magistrate had the advantage of the prosecution witnesses giving evidence before him, in person, it is notable that no issue was directly raised that his decision in any way turned upon assessment of the credibility of any of those witnesses. Rather, the questions which arose for determination were only as to the sufficiency of the unchallenged evidence of the prosecution witnesses in proof of the alleged defence.
  1. [21]
    Further, it is to be noted that neither at trial nor upon this appeal has there been any prosecution contention that there is any greater significance in the state of the evidence, upon which the magistrate was prepared to act, then that there was simply an absence of explanation by the appellant for his behaviour in attending at the radiology clinic and his car being observed following (at least in the sense of travelling behind) the complainant’s vehicle on 16 March 2018.
  1. [22]
    In those circumstances, the review to be conducted by this Court is as to the sufficiency of the circumstantial case presented, so as to warrant the drawing of an inference that the appellant’s conduct was intentionally directed at the complainant and had the necessary causative effect. Or and to the extent that the latter effect does not involve the drawing of an inference, as to the availability of the necessary objectively normative conclusion.
  1. [23]
    It was upon this basis that the Magistrate convicted the appellant of unlawful stalking which is punishable pursuant to s 359E of the Criminal Code and defined by s 359B, as follows:

359B What is unlawful stalking

Unlawful stalking is conduct—

  1. (a)
    intentionally directed at a person (the stalked person); and
  1. (b)
    engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  1. (c)
    consisting of 1 or more acts of the following, or a similar, type—
  1. (i)
    following, loitering near, watching or approaching a  person;
  1. (ii)
    contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
  1. (iii)
    loitering near, watching, approaching or entering a place where a person lives, works or visits;
  1. (iv)
    leaving offensive material where it will be found by, given to or brought to the attention of, a person;
  1. (v)
    giving offensive material to a person, directly or indirectly;
  1. (vi)
    an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
  1. (vii)
    an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
  1. (d)
    that—
  1. (i)
    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
  1. (ii)
    causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”
  1. [24]
    As can be noted, the element of the offence of stalking, as defined in s 359B(d) and which is concerned with the consequences of a defendant’s conduct, is defined in alternate ways, notwithstanding that there is some repetition of concepts in each provision:
  1. (a)
    In the first instance the provision in s 359B(d)(i) may be noted as requiring a wholly objective consideration as to whether the circumstances proven as to any conduct of the defendant that was intentionally directed at a person (defined in s 359B(a) as “the stalked person”) “would cause [that person relevant] apprehension or fear, reasonably arising in all the circumstances”.
  1. (b)
    However, the provision in s 359B(d)(ii) is concerned with proof of causation of “detriment reasonably arising in all the circumstances, to the stalked person or another person”. As has been noted, the concept of “detriment” is defined in s 359A as follows:

detriment includes the following—

  1. (a)
    apprehension or fear of violence to, or against property of, the stalked person or another person;
  1. (b)
    serious mental, psychological or emotional harm;
  1. (c)
    prevention or hindrance from doing an act a person is lawfully entitled to do;
  1. (d)
    compulsion to do an act a person is lawfully entitled to abstain from doing.”

Accordingly it may be noted that reliance upon, at least the alternatives defined in sub-paragraphs (a) and (b), allows, in the first instance, recourse to the subjective state of mind of “the stalked person” but subject to the objectively normative requirement that any such detriment reasonably arises in all of the circumstances.

  1. [25]
    In consideration of the proof of this element, it is necessary to note the following definitions in s 359A:

circumstances means the following circumstances—

  1. (a)
    the alleged stalker’s circumstances;
  1. (b)
    the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;
  1. (c)
    the circumstances surrounding the unlawful stalking;
  1. (d)
    any other relevant circumstances.

violence

  1. (a)
    does not include any force or impact within the limits of what is acceptable as incidental to social interaction or to life in the community; and
  1. (b)
    against a person includes an act depriving a person of liberty; and
  1. (c)
    against property includes an act of damaging, destroying, removing, using or interfering with the property.”

And also to note s 359C:

“359C What is immaterial for unlawful stalking

  1. (1)
    For section 359B(a), it is immaterial whether the person doing the unlawful stalking—
  1. (a)
    intends that the stalked person be aware the conduct is directed at the stalked person; or
  1. (b)
    has a mistaken belief about the identity of the person at whom the conduct is intentionally directed.
  1. (2)
    For section 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 property of another person.
  1. (3)
    For section 359B(b), it is immaterial whether the conduct throughout the occasion on which the conduct is protracted, or the conduct on each of a number of occasions, consists of the same or different acts.
  1. (4)
    For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment, mentioned in the section.
  1. (5)
    For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is actually caused.”

Discussion of the Contentions - conviction

  1. [26]
    At the outset, it may be observed that there is some force in the appellant’s contention that the absence of evidence of any direct or indirect threat made by him towards the complainant and, more particularly, the absence of any evidence of him seeking to engage with her, including on 16 March 2018, is a detraction as to any finding under s 359B(d). That is particularly so in case of sub-paragraph (i), because of the wholly objective nature of the element in requiring a conclusion that the relevant conduct “would cause” an apprehension or fear of some relevant violence and such as may be found to an “apprehension or fear reasonably arising in the circumstances”.
  1. [27]
    As has been observed, there was some lack of clarity and perhaps confusion in the case particularised as to this element, at the outset of the trial.[42] And it may be seen that notwithstanding any allowances which may be made for the ex-tempore nature of the Magistrate’s reasons, that such concern also arises from those reasons:[43]

The fourth element is that the conduct would cause the Complainant apprehension or fear, reasonably arising in all of the circumstances of violence to the Complainant. That is a subjective – sorry, that is an objective test, but the Complainant did give evidence about that.

She said at page 14, line 14, “So, when I was heading towards my workplace, I turned in and was heading down to our underground carpark. Even before that, I was quite worried and scared and quite anxious that, if he was to follow me, what could happen. I guess, and what – yeah – if he was to follow me to our underground carpark, what – what could happen. I’m sure there wouldn’t have been many people around if he was to assault me or corner me in there. I was worried and quite anxious, and very scared and stressed about it all. What could have happened?”. She was asked when she started feeling like that, she said, “Probably the closer I got to work, realising he was still behind me”.

She was asked, “So you were worried that he might assault you?”, “Yes”. She said, “Just worried he would corner me in the car park and assault – or sexual assault, or anything that he could do as there aren’t a lot of people that are in the carparks, so I was just worried that, yeah, it could happen”. So she has got these worries when she is approaching her work.

Mr Wilson argues that, well that does not fit the element of the offence because he did not go into the carpark, as I understand his argument. He said, if he was – if he followed her to the carpark, and in his act of following her did not end in the carpark, her fear was – arose before she got to the carpark, before she got to turning into her place of work, the general area. That is when her fear arose, and in my view, arose quite reasonably. Of course, this particular behaviour, when all coupled together with the number of times he visited the clinic at that time of the morning, coupled with him following her, and I do accept that yes, at one stage during the journey from Swan Street to Goodchap Street, he was one car behind her for parts, or the latter parts of the journey, he was immediately behind her, but in my view, any reasonable person in her shoes would apprehend fear of violence.

It is immaterial whether he intended to cause that, and I do not make any finding that he intended to cause that. I do not think he intended to cause it, but he did cause it. It is also immaterial, of course, whether it was in fact caused, and I am – but I do accept it was caused, and I do find that it would reasonably arise in those circumstances to someone in her shoes. I find all of the elements of the offence proven and proven beyond all reasonable doubt.” (emphasis added)

  1. [28]
    Notwithstanding a lack of clear expression of delineation between the alternative bases upon which a relevant element of causation of outcome may have been determined, it would appear that in the context of the evidence specifically led from the complainant as to her fear or at least apprehension, engendered on 16 March 2018 and as specifically noted in the passage, the finding is best understood as being as to causation of “detriment reasonably arising in all of the circumstances”. And in that respect, the finding that “any reasonable person in her shoes would apprehend fear of violence”, may be viewed as being confirmative of the otherwise express acceptance that her stated fear (or apprehension) “arose quite reasonably”. And it may be further noted that nothing would appear to turn upon the then unnecessary reference to the provisions of s 359C(5).
  1. [29]
    Further and as found by the magistrate, it was open, notwithstanding the particular attention paid to the concerns arising from the complainant’s description of the events of 16 March 2018, to also have regard to this conduct in conjunction with and in the context of the evidence of the appellant’s prior conduct at Noosa Radiology and particularly insofar as such conduct occurred on occasions when the complainant was present to open those premises. That evidence was relevant to proof that the appellant’s conduct was intentionally directed at the complainant, as well as to proof of the detriment ultimately caused by it, even if there may have been evidence that his similar conduct prior to 16 March 2018, may have also been directed at other female employees at the premises, and particularly as the appellant contends, as to whether it was proven to have been directed at any particular individual. The magistrate expressly found that the relevant conduct was engaged in on more than one occasion.[44]
  1. [30]
    As to the application of s 359B(d)(ii), the relevant questions are first whether the complainant subjectively and genuinely had an apprehension or fear of violence to herself and if so, whether that subjective apprehension or fear reasonably arose in the circumstances.
  1. [31]
    As to the first question, the Magistrate had the undoubted advantage of observing the complainant give evidence and it is the second question which is particularly put in issue by the appellant. That is the question whether what was found to be a genuine apprehension or fear of relevant violence, “reasonably arises” from conduct intentionally directed at the complainant by the appellant.
  1. [32]
    Accordingly, it may be seen that it is not only the magistrate’s finding or acceptance of the complainant’s evidence as to her having at least a genuine apprehension as to some relevant violence (or physical contact) which was of particular importance to any finding as to this causation of detriment, but that the essentially critical and separate issue, was as to whether it was established that there had been relevant conduct that was intentionally directed at the complainant by the appellant. Although a strictly separate issue, noting that pursuant to s 359C(4) there is no requirement for proof of intention to cause the apprehension or fear or detriment, this causation question first requires the identification of the intentionally directed conduct from which the apprehension or fear or detriment, reasonably may be found to arise.
  1. [33]
    Therefore, a critical circumstance as to the finding that each element was proven beyond reasonable doubt, was the finding that the conduct of the appellant on 16 March 2018 was intentionally directed at the complainant. Although this later conduct was as much to be viewed in the context of the earlier attendances at the Noosa Radiology premises, particularly as it related to the contention of coincidence in happening to be found following the complainant on 16 March 2018 (in the sense of travelling the same route as her), it is clear that it is the finding that the appellant drove on that occasion so as to follow the complainant to her workplace, which provides the necessary colour so as to enable the finding of intentional direction of conduct at the complainant on the several occasions.
  1. [34]
    The magistrate expressly found that the appellant “intentionally did a U-turn and followed her”.[45]  However, it may be noted that the only reasons expressed for that finding, were:

“Now, it is argued that, well, there is no evidence of him knowing where she lives or where she parks her car.  That is true.  That is true.  No evidence of that at all.  There is – the fact is that he intentionally drove that route that was the same route that she was driving upon.  One can – he could have – now, this is speculation, but it could be argued that; well, he might have followed her sometime earlier; he might have seen her in the car; he might have, for whatever reason he was aware of, I am certain without a doubt, that it was her driving that car, for whatever reason he was there, and certain that it was her in the car.

And I take that, or I will, or will I – I arrive at that by looking at his behaviour and going to the radiology – Noosa Radiology on all of those occasions that he did, and by driving in the manner he did on that very strange route, if he was going to Tewantin, as he suggested at one stage, or someone suggested at one stage.  He might have suggested his route, although it is probably a lie.”

  1. [35]
    Putting aside the unfortunate and immediately recognised introduction of some speculation, it must be recognised that there is very little by way of expressed reasoning to the conclusion reached. That perhaps is indicative of the paucity of circumstances established as any foundation for the necessary inference, to be established as the only rational inference to be drawn from those circumstances.[46] Those circumstances in the end come down to the propositions that:
  1. after the complainant drove past his parked vehicle, the appellant performed a U-turn, so that his car was behind and able to proceed after and in the same direction of travel as the complainant’s vehicle; and
  1. the appellant then drove his vehicle behind and along the same route as the complainant, until she entered the premises of her employment.

It is necessary to describe these circumstances in such neutral terms so as to avoid any tendency to introduce any sense of presumption or assumption that the appellant was intentionally following the complainant’s vehicle and so as to clearly identify that the issue is as to whether the circumstances permit the inference that the appellant not only followed the complainant but did so intentionally.

As contended for the appellant, an alternative hypothesis that arises is simply co-incidence and whilst the respondent correctly contends that this prospect is to be viewed in the context of the evidence as to the appellant’s prior conduct at the Noosa Radiology premises and particularly including those occasions when the complainant was present there, the question essentially remains whether the circumstances of his conduct on 16 March 2018 allow for the conclusion that he then intentionally followed the complainant, as the only rational inference.

Conclusions - conviction

  1. [36]
    It should be concluded that the evidence does not allow for the exclusion of coincidence as a reasonable or rational possibility:
  1. (a)
    First and particularly where there was no more positive assistance to the prosecution case to be gained from any explanation or absence of explanation, proffered by the appellant, there was nothing to indicate that the presence of the appellant in his parked car at the particular location was of any unusual significance and the evidence suggested that there were a number of commercial premises nearby which could have explained his presence there;
  1. (b)
    Secondly and whilst the performance of a U-turn may be reasonably regarded as a less commonly performed driving manoeuvre, it may be observed that, on the evidence here, an effect was that the appellant’s manoeuvre was also consistent with bringing his vehicle most directly so as to being able to travel along the nearest more substantial thoroughfare; and
  1. (c)
    Thirdly, there is an absence of evident basis for the stated conclusion that he then drove on “that very strange route”. As might be expected by the complainant travelling that route herself, it is along substantial roads rather than backstreets and an evidently direct and sensible route of travel from the location where the appellant had been parked and the street leading to the complainant’s place of work. It was not an extensive journey and relatively confined to the Noosaville locality. Neither is that area of destination in any sense a remote one and the evidence permitted of there being other potential attractions to which that street led.[47] And the evidence of the appellant’s earlier attendances at the Noosa Radiology premises suggested that it may not have been an unusual location to which the appellant might travel.

Whatever may have been the conclusion if a different standard of proof was applicable, what is essentially lacking is any sufficient basis for any conclusion, as the only rational inference arising, that the appellant knew or realised that he was following the complainant in her vehicle and did so intentionally. Accordingly, it is demonstrated that there was error in the conviction of the appellant and it will be necessary to set aside the conviction.

  1. [37]
    Before dealing with the necessary orders, it remains desirable to express some conclusions as to the remaining issues raised in this appeal.
  1. [38]
    Had it been concluded that there was no error in the Magistrate’s conclusion that there had been conduct of the appellant intentionally directed at the complainant and particularly in his intentional following of her on 16 March 2018, there would be difficulty in concluding that he erred in finding that detriment had been caused by that conduct in the context of his earlier conduct in attending at the work premises when the complainant was there. Whilst that required a conclusion that it was established beyond reasonable doubt that any genuine apprehension of the complainant as to some violence or physical contact occurring, reasonably arose in those circumstances, it is important to understand that the focus is upon that fear or at least apprehension and it is not necessary to establish that the prospect of such an occurrence was a reasonable possibility. Although the objective aspect of this element is obviously intended to require some reasonable basis for any genuine fear or apprehension of a relevant kind, the necessary conclusion is only as to there being a reasonable basis for that genuine fear or apprehension. And in this case, the appellant’s conduct, if intentionally directed at the complainant, permitted a conclusion that it was a genuine apprehension which reasonably arose in such circumstances. Whilst it may have been a marginal call as to whether such a conclusion was established beyond reasonable doubt, that entailed a judgement call as to the application of a normative standard and as to which reasonable minds might differ. Accordingly in such circumstances, it would not be appropriate to conclude that there was error in the magistrate’s conclusion on this element.

Conclusions – sentence issues

  1. [39]
    Also in the event that the conviction of the appellant were to be confirmed, there were two issues raised as to the sentencing orders made below.[48]
  1. [40]
    First, it was contended that the Restraining Order was unnecessary and particularly in the light of some concessions which were made for the appellant below, the developed submission was that the duration of the order for five years was excessive. Whether or not there may have been any confusion as to whether an order of such length was conceded for the appellant below,[49] there is no warrant for any conclusion that such an order would be outside the proper exercise of sentencing discretion of the magistrate or in any sense any excessive response to any proper finding as to the appellant having committed the charged offence. Such an order would be both appropriate to a sense of personal deterrence to the appellant and to providing a sense of protection to the complainant in the context of the apprehension engendered by the appellant’s conduct. Moreover and in contemporary circumstances, protective orders of this and other similar types,[50] are commonly made for such duration.
  1. [41]
    Secondly and in respect of the compensation order, it was contended to be unnecessary and without basis, in that the complainant was put to no expense, had no time off work and had no counselling or other intervention.
  1. [42]
    For the respondent it was contended that “the compensation was justified based on the harm caused to the complainant”. As this contention was considered on the appeal, the crucially identified issue became whether the statutory basis for the making of the order in s 35(1)(c) of the Penalties and Sentences Act 1992, in that there was any evidence of “personal injury suffered by [the complainant]… because of the commission of the offence”.
  1. [43]
    Although each party was given leave to make further written submissions as to this issue, only the respondent did so. By those further submissions,[51] the respondent pointed out that the concept of “personal injury” is not defined in the Penalties and Sentences Act 1992 and sought that guidance be drawn from the definition of injury previously provided in s 663A of the Criminal Code, until 1995:

“‘injury’ means bodily harm and includes pregnancy, mental shock and nervous shock”.

  1. [44]
    It can be observed that there are two immediate problems with such an approach. First, it is necessary to note that this definition related to the precursor to criminal compensation awards, made upon an application and as an adjunct to a conviction of an indictable offence and which existed prior to 1995, separately to the power to make a compensation order as part of the sentencing process and which has been specifically available pursuant to s 35(1)(c) of the Penalties and Sentences Act 1992, since that Act came into force in 1992. The provisions to which s 663A related were replaced in 1995 by provisions in the Criminal Offence Victims Act 1995, which in turn were replaced by provisions of the, currently in force, Victims of Crime Assistance Act 2009.
  1. [45]
    Secondly, the attempt to draw guidance from the inclusion of “mental shock and nervous shock” in that statutory definition, is not of any assistance, when regard is had to the authorities as to the meaning of such a phrase. In JS (an infant) v Graveur,[52] it was observed:

“[15] The term “mental or nervous shock” is undefined by the Act. In R v Kazakoff, ex parte Ferguson, Thomas JA, sitting as a judge of the trial division, concluded that mental or nervous shock was not confined to diagnosable mental disorders or psychiatric illnesses but included “… situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event”. On the other hand, his Honour concluded:

“… that if nothing more is shown than fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock”.

[16]  There was no appearance for the respondent on the hearing before Thomas JA.

[17] In RMC v NAC, in which the respondent was also unrepresented, Byrne SJA, after a detailed review of authorities, concluded that for the purposes of the Act, “mental or nervous shock” was confined to “a recognisable psychiatric illness or disorder”. In RMC, the applicant for criminal compensation had been diagnosed with “Acute Stress Reaction” and “Adjustment Disorder”. His Honour concluded that, as these were recognisable psychiatric illnesses, they constituted “mental or nervous shock”.

[18] Byrne SJA said that in Kazakoff, Thomas JA had reasoned that the expression “nervous shock” in the Act was intended to have its longstanding meaning in civil claims. His Honour accepted the correctness of this premise, which he concluded was supported by the decision of Lee J in R v Tiltman; ex parte Dawe and was consistent with decisions in South Australia, Western Australia and New South Wales. Where Byrne SJA parted company with Thomas JA was in the meaning of “nervous shock” in civil cases. His Honour said:[9]

“‘Nervous shock’ is a familiar expression in discourse concerning the extent to which the common law compensates for unlawfully, typically tortiously, inflicted psychiatric injury. In that context, the expression has been used for decades as a ‘term of art’ to describe a recognisable 133psychiatric illness or disorder”. (citations omitted)

[19] After referring to the meaning given to “nervous shock” in Torts law in England, Scotland, Canada, Ireland and New Zealand, Byrne SJA identified the Australian position:

“In Australia, the same usage has long been established. In 1965, Burbury CJ called nervous shock ‘medically recognisable neurosis or damage to the mind.’ Almost 40 years ago, Windeyer J equated the term with ‘recognizable psychiatric illness’. In Queensland, in 1971, Wanstall ACJ accepted that nervous shock meant ‘recognisable psychiatric illness’. In 1984, Brennan J spoke of it as ‘some recognizable psychiatric illness’. A decade later, Gleeson CJ described nervous shock as ‘a recognizable psychiatric illness or injury’, and Kirby P approved the idea that it signifies ‘psychiatric illness or psychiatric or psychological disorder.’ More recently, McHugh J has said: ‘“Nervous shock” is an outdated term that nowadays is taken to mean a recognisable psychiatric injury’”.

[20] I accept, with respect, the accuracy of Byrne SJA’s analysis and his conclusion that “nervous shock” in the Act means a recognisable psychiatric illness or disorder. I accept also that “mental shock” and “nervous shock” are interchangeable expressions.

[21] Although s 22(3) of the Act establishes that the compensation for which the Act provides “is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise”, it is nevertheless compensation for mental or physical injury to the person of a victim of crime. Having regard to the long established meaning of “nervous shock” or “mental or nervous shock” in the law of negligence, it would, I think, be surprising if the parliament had intended that the term have a different meaning in the Act without defining the term. It has no other obvious meaning in everyday speech and plays a significant role in the Act’s compensatory scheme. Giving the subject words their long established meaning has the added advantage that this meaning is relatively precise but readily capable of application.” (citations omitted)

  1. [46]
    The Graveur decision was directly concerned with the phrase “mental or nervous shock”, as included in the definition of injury in s 20 of the Criminal Offence Victims Act 1995, whereas the reference to the Kazakoff[53] decision is to a decision in respect of the definition in s 663A of the Criminal Code.
  1. [47]
    It is also notable that, as is now reflected in s 27(1) of the Victims of Crime Assistance Act 2009, by the inclusion of specified “adverse impacts” of sexual offences and domestic violence, in addition to “mental illness or disorder”, in the definition of “injury”, the definition in s 20 of the Criminal Offence Victims Act 1995 also included a concept of “prescribed injury”, which, by s 1A of the Criminal Offence Victim Regulation 1995, provided for consideration of the totality of specified adverse impacts of a sexual offence. And in Vlug v Carrasco,[54] it was determined that the effect was not “to introduce a new regime of compensation for disability, consequence or effects, as distinct from injury,” but rather that it “expands the compass of what impacts on the individual may be counted as injury”.
  1. [48]
    Given the absence of necessity to do so and the absence of the assistance of extensive submissions on the point, it is undesirable to attempt to reach a concluded view as to the limits of the concept of “personal injury” in s 35(1)(c) of the Penalties and Sentences Act 1992. And it suffices to observe that in respect of the respondent’s reliance upon the following consequences to the complainant:
  1. (a)
    as described in her evidence, that “she was constantly looking over her back wherever she went, even just at the shops, just being very cautious and wary and constantly feeling worried; and she was quite anxious about who could be around, constantly looking around, it worried and upset her and has made her feel uncomfortable in her own home”;[55] and
  1. (b)
    as outlined in her Victim Impact Statement, that:[56]
  • “she became really scared to walk to or from her car alone either at work or at home;
  • she never used to mind being at home on her own but it now causes her to feel apprehensive at the thought he may have followed her home and may be outside watching and waiting;
  • she has become very nervous and very cautious and she does not really feel safe by herself anywhere he might be. When she sees a car like his she feels anxious. If she thinks she sees him anywhere, all the same anxiety she felt when he followed her to work comes back; and
  • prior to being stalked by the appellant, she was a very relaxed sort of person that never felt the attacks of trepidation that she does now”;

it is at least doubtful that there was sufficient evidence of “personal injury” so as to enable an order to be made pursuant to s 35(1)(c) of the Penalties and Sentences Act 1992.

Orders 

  1. [49]
    Therefore and subject to what follows, it will be appropriate to order that: the orders made in the Magistrates Court at Noosa on 30 November 2018, that the defendant be found guilty of the offence of unlawful stalking and the consequential orders as to his conviction and sentence for that offence are set aside and replaced with an order that the defendant is found not guilty of that offence. Otherwise, it will be necessary to further hear the parties as to any other or further orders. That will include consideration as to whether or not it remains desirable, in the circumstances of this case, for there to be a restraining order pursuant to s 359F of the Criminal Code.

Footnotes

[1]  T(23/11/18)1-3.20-1-4.7.

[2]  T(23/11/18)1-5.36.

[3]  T(23/11/18)1-6.11-44.

[4]  T(23/11/18)1-8.22-1-11.14.

[5]  T(23/11/18)1-9.33-41 and T(23/11/18)1-21.28-37.

[6]  T(23/11/18)1-10.5-9.

[7]  T(23/11/18)1-9.20-21.

[8]  T(23/11/18)1-10.26-30.

[9]  T(23/11/18)1-10.41–1-11.5.

[10]  T(23/11/18)1-12.16-41.

[11]  T(23/11/18)1-13.14-29.

[12]  T(23/11/18)1-17.9.

[13]  T(23/11/18)1-18.9-20.

[14]  T(23/11/18)1-17.29-1-20.20.

[15]  T(23/11/18)1-19.1-1-20.16.

[16]  T(23/11/18)1-19.44-1-23.30.

[17]  T(23/11/18)1-23.15-18.

[18]  T(23/11/18)1-21.10-12.

[19]  T(23/11/18)1-25.43-1-26.2.

[20]  T(23/11/18)1-41.25-40.

[21]  T(23/11/18)1-42.12-31.

[22]  T(23/11/18)1-43.1– 1-44.46.

[23]  T(23/11/18)1-43.18-27.

[24]  T(23/11/18)1-44.1-18.

[25]  T(23/11/18)1-45.10-1-46.8.

[26]  T(23/11/18)1-48.3-14.

[27]  T(23/11/18)1-51.15 – 1-52.15.

[28]  T(23/11/18)1-49.1 – 1-51.34.

[29]  T(23/11/18)1-56.3-26.

[30]  T(23/11/18)1-56.32 – 1-57.17.

[31]  T(23/11/18)1-57.21-44.

[32]  For example, that he was waiting for his son.

[33]  (1993) 178 CLR 193.

[34]  D4.41-42.

[35]  (2000) 200 CLR 234.

[36]  Notably and apart from being pressed to provide explanation for his presence in Swan Street prior to doing the U-turn observed by the complainant, the position of the appellant was he was not aware of his following of the complainant in her vehicle on 16 March 2018.

[37]  Section 223(1) Justices Act 1886, there being no application for leave to adduce any new evidence pursuant to s 233(2). 

[38]  Respondent’s written submissions at [4.2].

[39]  Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43].

[40]  (2003) 214 CLR 118 at [29].

[41]  Ibid at [27].

[42]  T(23/11/18)1-4.1-20.

[43]  D6.27-D7.18.

[44]  D6.20-23.

[45]  D5.29.

[46]  See: Shepherd v The Queen (1990) 170 CLR 573 at 578.

[47]  T(23/11/18)1-28.30-38 and 1-32.29.

[48]  A further point raised in the notice of appeal and in relation to the order in respect of costs, was not pursued on the hearing of the appeal: AT1-10.5.

[49]  T(30/11/18)1-68.10 – 1-69.16.

[50]  Such as may be made pursuant to the Domestic and Family Violence Protection Act 2012.

[51]  Filed 18 October 2019.

[52]  [2013] 1 Qd R 127 at [15] – [21].

[53]  R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320

[54]  [2007] 2 Qd R 393 at [11].

[55]  Respondent’s outline of further submissions, filed 18/10/19 at [1.7].

[56]  Ibid at [1.8].

Close

Editorial Notes

  • Published Case Name:

    Tierney v Commissioner of Police

  • Shortened Case Name:

    Tierney v Commissioner of Police

  • MNC:

    [2020] QDC 4

  • Court:

    QDC

  • Judge(s):

    Long SC DCJ

  • Date:

    29 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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