- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
 QCA 64
SUPREME COURT OF QUEENSLAND
DC No 281 of 2001
Court of Appeal
Appeal against Conviction and Sentence
15 March 2002
25 February 2002
McMurdo P, Davies JA, Byrne J
Separate reasons for judgment of each member of the Court, Davies JA and Byrne J concurring as to the orders made, McMurdo P dissenting in part
The appeal against conviction dismissed and the application for leave to appeal against sentence refused
CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES AND MATTERS – OTHER OFFENCES
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS– PARTICULAR CASES - where appellant and his wife jointly charged with two counts of stalking against neighbour husband and wife – where appellant convicted on count 1 but acquitted on count 2 – where appellant's wife found not guilty on both counts – whether verdict of guilty on count 1 is unsafe and unsatisfactory because it is inconsistent with the acquittal of appellant’s wife and acquittal on count 2 – whether open to jury to find appellant's conduct satisfied s 359B(d)(i) and (ii) Criminal Code in respect of wife complainant but not in respect of husband complainant
CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – DIRECTION TO JURY – where no direction by trial judge that Crown bore the onus of proving that the circumstances of the alleged unlawful stalking were unreasonable – whether s 359B Criminal Code imports a notion of reasonableness in its elements
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – whether judge’s summing up lacked balance because the explanation of the prosecution case was more detailed than that of the defence
JURY – THE JURY IN CRIMINAL PROCEEDINGS – GENERAL MATTERS - where over 150 particularised alleged acts of stalking – where verdict does not indicate which acts were proven beyond reasonable doubt – where no application by defence counsel for special verdict – whether trial judge should have requested a special verdict for purpose of sentencing
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED - where sentence of 3 years imprisonment and restraining order of 15 years imposed – where no plea of guilty and no display of remorse – where one prior conviction and positive references – where head sentence increased from 3 to 5 years - where sentence not manifestly excessive
Criminal Code (Qld), s 359A, s 359B, s 359E, s 359F
Mackenzie v R (1996) 190 CLR 348, considered
R v Allie  1 QdR 618, considered
R v Hallett  QCA 418, CA No 301 of 1997, 21 November 1997, considered
R v Haselich  QdR 183, considered
R v Holznagel  QCA 26, CA No 426 of 1997, 6 February 1998, considered
R v P  2 QdR 401, considered
R v Rosenlund  QCA 311, CA No 271 of 1997, 26 August 1997, considered
D W Honchin for the applicant/appellant
B G Campbell for the respondent
Roberts Nehmer McKee for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
 McMURDO P: The appellant and his wife were jointly charged with one count of stalking Veronica Hughes (count 1) and one count of stalking her husband, Geoffrey Hughes (count 2). Both offences were alleged to have occurred between 1 August 1999 and 5 November 2000. The appellant was convicted of count 1 but acquitted of count 2; Mrs Ali was found not guilty on both counts. The appellant was sentenced to imprisonment for three years. Both the appellant and Mrs Ali were restrained for 15 years from having any contact with the complainants under s 359F Criminal Code. The appellant appeals both against his conviction and sentence.
 The Alis and the Hughes were next door neighbours in suburban Kirwan, Townsville, living in recently constructed homes from March 1998. According to Mrs Hughes their relationship was satisfactory, despite a minor dispute about a common fence, until March 1999 when it deteriorated after police visited the Ali residence. It seems the appellant believed the Hughes were responsible for this visit about missing property from building sites. Mrs Hughes gave evidence of a prolonged nuisance campaign directed at them by the Alis, commencing in August 1999 and continuing until November 2000. This conduct continued after April 2000 when the Alis were charged with stalking and included an episode at the complainants' new home to which they moved in October 2000 to escape the Alis behaviour.
 Mrs Hughes gave evidence that the Alis deliberately made loud noises by banging on the fence, using power tools close to the boundary and running the lawn mower in one spot close to the boundary. They lit fires so that smoke would drift on to the Hughes' patio. The Alis installed video cameras directed at the Hughes' residence and talked about filming them. Mr Ali regularly abused, wolf-whistled, glared and made offensive gestures towards Mrs Hughes and played a particular, unnamed foreign language love song whenever Mrs Hughes walked in her yard. Mr Ali installed and directed spotlights and a fluorescent light towards or near the Hughes' home and on one occasion parked his car with the headlights directed into the complainants' home. Mrs Hughes also claimed that items such as broken tiles and roofing nails, which would interfere with the operation of the lawn mower, were thrown into her property. A number of plants belonging to the Hughes mysteriously died. Mr Ali erected three white crosses on the dividing fence which he said were to keep away Mr Hughes, who was the devil. The appellant told Mrs Hughes that she wanted to sleep with him and that she used to sit on the letterbox and show him her pubic hair.
 This behaviour made Mrs Hughes frightened to walk in her own yard, especially when she was alone. She was concerned about what the appellant might do, particularly after the three white crosses were erected: she thought this symbolised his desire to kill her husband, son and her. His sexual references made her fear he was perverted. She was prescribed sleeping tablets by her doctor for stress. Sometimes because of the bright lights shining into her bedroom, she and her husband were forced to sleep in the lounge room. The appellant's conduct was the complainants' only reason for moving house in October 2000.
 Mr Hughes and the Hughes' friends, Mr & Mrs Wasik, gave evidence supporting Mrs Hughes' claims in a number of respects.
 Police officers gave evidence of the video cameras, lights and white crosses at the Ali residence and that the appellant was charged with the offence in April 2000.
 The appellant gave evidence of the animosity between his family and the Hughes which commenced with a dispute about the length of a common fence and was, he claimed, initiated by the Hughes' racial taunts and unacceptable behaviour, including banging the fence, hosing his dog, throwing items into his property and shining a bright torch into his home at night. He claimed his actions were only responsive to their unneighbourly behaviour. He put up the crosses to show the Hughes he merely wanted to live in peace. He emphasised that he, not Mrs Ali, was responsible for the installation of the lights, video camera and crosses and she did not assist or encourage him in this. He denied the extent of the behaviour alleged against him by Mr & Mrs Hughes and some specific incidents alleged against him, including the allegation of sexual references. He claimed that innocent actions such as playing music or whistling for the dog were misinterpreted by the Hughes.
 Mrs Ali did not give evidence but the appellant called seven supporting witnesses, including his two sons, neighbours and friends. Mr Gray, a neighbour across the street, saw a placard displayed over a two to three day period in about July 1999 half a metre by half a metre in the Hughes' residence saying "black bastards, go back home" and "live in a refugee camp". Mr Ottavian visited the Alis in July or August 1999 and saw placards displayed in the Hughes' yard saying "coon" and "black bastard" and "go home". He also heard banging on the common fence and Mr Hughes yelling out "bloody bastards, bloody niggers". In cross-examination, Mr Gray and Mr Ottavian conceded they did not know how long the signs had been there or who had erected them. The other witnesses also gave evidence that Mr Hughes subjected the appellant to racial abuse. Eggs were thrown at the Ali house and car and a family car vandalized, although there was no evidence as to who was responsible for these acts. Photographs of racially abusive signs fixed to the boundary fence and the Alis' egged or damaged cars and house were tendered. The Hughes denied any involvement in such conduct. The prosecution case was that the Alis fabricated this photographic evidence.
 The appellant has abandoned some grounds of appeal and added others. His first ground of appeal is that the verdict of guilty on count 1 is unsafe and unsatisfactory because it is inconsistent with the acquittal of Mrs Ali on both counts and his acquittal on count 2.
 It is convenient to set out the relevant sections of the Criminal Code. The four elements of the offence of stalking are set out in s 359B(a)-(d). The term "circumstances" in s 359B(d) is defined in s 359A.
"359AIn this chapter –
"circumstances" means the following circumstances –
(a)the alleged stalker's circumstances;
(b)the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;
(c)the circumstances surrounding the unlawful stalking;
(d)any other relevant circumstances.
359B"Unlawful stalking" is conduct
(a)intentionally directed at a person (the "stalked person"); and
(b)engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
(c)consisting of 1 or more acts of the following, or a similar, type –
(i)following, loitering near, watching or approaching a person;
(ii)contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology;
(iii)loitering near, watching, approaching or entering a place where a person lives, works or visits;
(iv)leaving offensive material where it will be found by, given to or brought to the attention of, a person;
(v)giving offensive material to a person, directly or indirectly;
(vi)an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
(vii)an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
(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
(ii)causes detriment, reasonably arising in all the circumstances, to the stalked person or another person."
 The prosecution case was that the appellant's unlawful behaviour under s 359B Criminal Code consisted of at least two of over 150 particularised acts. The jury verdict does not indicate which of those acts they accepted as proven beyond reasonable doubt. Most of these particularised acts, including those involving sexual references, were attributed to the appellant, not Mrs Ali. The appellant's evidence was that Mrs Ali was not involved in the erection of the crosses, video cameras and lights. The jury verdict acquitting Mrs Ali of both counts but convicting Mr Ali was rationally open on this evidence.
 It was also open to the jury on the evidence to be satisfied beyond reasonable doubt that the appellant's conduct towards Mrs Hughes was such as would cause her apprehension, or fear of violence to property or cause her detriment, but not to be so satisfied in relation to Mr Hughes, especially where there was some evidence that he had subjected the Alis to racial abuse. The circumstances to be considered by the jury in respect of Mrs Hughes were not the same as those of Mr Hughes. The evidence as to Mrs Hughes' apprehension, or fear of violence to property or whether detriment was caused to her because of the appellant's particularised acts was more compelling than that as to Mr Hughes. The jury's verdict acquitting the appellant of count 2 but convicting him on count 1 was capable of a clearly discernible rational basis: see Mackenzie v R and R v P . This ground of appeal is without merit.
 The appellant's next ground of appeal is that the judge's summing up lacked balance because his explanation of the prosecution case was far lengthier and more detailed than his summation of the defence case.
 It is true that the primary judge repeated Mrs Hughes' detailed allegations, apparently because he felt he needed to identify for the jury each particularised act upon which the prosecution relied as capable of establishing the elements of the offence of stalking under s 359B(c) and (d) Criminal Code. Because there were over 150 such acts, this was necessarily a lengthy exercise. As a list of the particularised acts was provided to the jury, it was unnecessary to read the jury the evidence as to each act, although the adoption of such a course is open provided care is taken to maintain balance. The judge here made it clear to the jury that he was setting out Mrs Hughes' allegations and that it was for them to decide if two or more of these allegations were proved by the prosecution beyond reasonable doubt. His Honour did not intimate that the jury should accept Mrs Hughes' allegations. The redirections sought by defence counsel at trial on this point were given and there was no submission that the judge's comments lacked balance. The primary judge adequately summarised the defence case. I am not persuaded that the summing up lacked balance on this basis. There is nothing in this ground of appeal.
 The appellant next contends, as I understand the submission, that the judge failed to direct the jury that the prosecution must prove beyond reasonable doubt that the two or more acts said to constitute stalking were not reasonable in the circumstances. But that is not what s 359B Criminal Code provides. The only reference in s 359B Criminal Code to the concept of reasonableness or "circumstances" is in s 359B(d) which relevantly requires the prosecution to prove that the appellant's two or more intentional acts:
"(i)would cause [Mrs Hughes] apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, [Mr or Mrs Hughes or their son] …; or
(ii)causes detriment, reasonably arising in all the circumstances, to [Mr or Mrs Hughes or their son] … ."
Section 359A Criminal Code defines "circumstances" and required the jury to take into account the circumstances of the appellant and Mrs Hughes, known, foreseen or reasonably foreseen by the appellant; the circumstances surrounding the unlawful stalking and any other relevant circumstances in determining whether the acts would cause apprehension or fear of violence to property or caused detriment to Mrs Hughes. The concept of reasonableness in s 359B relates to the potential or actual results of the acts in the circumstances (as that term is widely defined in s 359A Criminal Code); it does not relate to the acts of the accused person to which s 359B(b) and (c) refer. The section does not require a direction to the jury in the terms sought by the appellant; such a direction would be inconsistent with the terms of s 359B Criminal Code. The judge's directions as to the elements of the offence were adequate.
 I also note that the judge on many occasions in his summing up and in his initial re-direction told the jury that the prosecution must prove the elements of the offence beyond reasonable doubt. He also directed the jury that they must exclude any hypothesis consistent with innocence beyond reasonable doubt before they could convict the appellant. Although the judge in the last of the redirections did not again refer to the onus of proof, he said nothing to contradict his earlier directions and no further direction was sought. This ground, too, is without merit.
 Finally, the appellant contends that the primary judge on his own initiative and without application from defence counsel, should have requested a special verdict so that the judge could know for sentencing purposes which particularised acts alleged by the prosecution the jury found proved beyond reasonable doubt. The judge, especially in the absence of any application, was not required to ask for a special verdict. Indeed, there are sound reasons militating against special verdicts in cases such as this which could make the jury's already onerous role unbearably burdensome and tedious. His Honour was entitled to find facts on sentence consistent with the jury verdict, on the balance of probabilities. There is nothing in this ground of appeal, which in any case, as counsel for the appellant concedes, could not affect the verdict.
 It follows that the appeal against conviction must be dismissed.
 I turn now to the application for leave to appeal against sentence. The applicant contends the sentence is manifestly excessive.
 The judge took a very serious view of the applicant's conduct emotively describing it as:
"completely unacceptable and un-Australian. It is completely unacceptable in a multi-racial society such as Australia. It was a deliberate, carefully planned, concerted campaign. It was prolonged, protracted and intentional. It was a campaign of harassment and intimidation. You put much work into this campaign. It was a spiteful, hateful campaign. Your conduct here, which I find to be unprovoked, deserves of condign punishment. It was scary and bizarre. …
I think you need psychiatric treatment …
Your behaviour was threatening, concerning, abusive and intrusive. You threw objects into Mrs Hughes' yard which could have caused injury. Your conduct amounted to a gross invasion of the privacy of Mrs Hughes and her right to a peaceful life. You engaged in racist and discriminatory conduct.
The Crown case was a very strong one. I find it, personally, difficult to imagine a worse case of neighbourhood stalking. You used abusive, offensive and foul language. You drove the Hughes away from their house. You were continually watching their movements, day and night. …
Your behaviour was irrational and disturbing. In the conduct of your defence you, in my view, endeavoured to reverse roles and attribute to Mrs Hughes many facets of your own conduct. You have showed no remorse or contrition at all. …
I think you are a consummate player of the racist card. You are such a player without any foundation at all. Your behaviour represents the antithesis of behaviour accepted in a civilised society."
 The applicant contends the judge should have accepted some fault on the part of the Hughes. The jury retired to consider their verdict first at 10.36am and again, after further redirections, at 10.58am. At 12.57pm they gave this request for a re-direction:
"Some members of the jury are unsure of a conviction based on their belief that both the Alis, and the Hughes, actions had taunted each other. Can we find a guilty verdict if Mr & Mrs Alis' actions were based on circumstances arising from actions by Mr & Mrs Hughes?"
 The judge then gave further lengthy directions as to the meaning of "circumstances". At 3.30pm the jury indicated they had reached a verdict on two counts but were undecided on two counts. The judge gave still further directions as to "circumstances" and directed them in accordance with Black v The Queen. The jury finally returned with their verdict at 10.30pm. It is impossible to know from the verdict or the applications for redirections whether the jury finally determined that on balance either or both Mr & Mrs Hughes had taunted the Alis. His Honour was entitled to reject that contention on the balance of probabilities although a different judge may have taken a different view.
 His Honour properly found that this was a serious example of stalking especially as it continued after the applicant had been charged and after he had driven the complainants from their home. It does not have the mitigating benefit of a plea of guilty and the applicant has shown no remorse. The victim impact statement confirms the serious consequences of the applicant's conduct upon Mrs Hughes. The maximum penalty for this offence was increased from three to five years imprisonment as from 30 April 1999.
 The applicant is 47 years old. He has one prior conviction in 1997 for unlawfully taking away shop goods and was fined for using insulting words in 1999. He has no convictions for any like offences. He came to Australia from Fiji in 1975 and has worked in the building industry although he has been had periods of unemployment. He graduated in law in 1994. He commenced but did not complete his articles of clerkship in Melbourne and tutored at James Cook University from 1994 to 1996. In some ways his knowledge and experience of the law makes this anti-social conduct even more serious. A number of references were tendered from apparently respected community members which suggested that, apart from this appalling conduct, the applicant is a generally responsible citizen and that his behaviour here was out of character.
 Offences of stalking are punishable in relatively minor cases or cases of considerable mitigation by non-custodial sentences and in the more serious cases by substantial terms of imprisonment. This case was within the latter category. The respondent concedes that the sentence of three years imprisonment was high but contends that it was at the top of the acceptable range. Despite the strongly adverse view taken of the appellant by the judge and the recent legislative increase in the maximum penalty, I am finally persuaded the sentence of three years imprisonment was manifestly excessive because of the appellant's lack of prior relevant convictions and the positive matters contained in the tendered references. I would substitute a sentence of two years imprisonment. The cases of R v Holznagel; R v Rosenlund; R v Hallett and R v Allie support that conclusion.
 I am not, however, persuaded that the order restraining the appellant from any contact with the complainants for 15 years is excessive or otherwise unwarranted; it provides sensible protection for the complainants and should not unreasonably inconvenience the appellant.
 I would refuse the appeal against conviction, grant the application for leave to appeal against sentence and allow the appeal to the extent of substituting two years imprisonment for three years imprisonment. I would otherwise confirm the sentence imposed at first instance.
 DAVIES JA: I agree with the President that the appeal against conviction must be dismissed. However there are two important respects in which I differ from her Honour in my reasons for that conclusion.
 The first is as to why the jury were entitled to be satisfied that Mrs Hughes had been stalked by the appellant whilst not being satisfied that Mr Hughes had been. Her Honour relied for her conclusion in this respect on the fact that there was some evidence, as indeed there was, that Mr Hughes had subjected the Alis to racial abuse.
 I would prefer to rely upon the following:
1. that there were a number of acts of the type referred to in s 359B(c) to which Mrs Hughes was subjected but to which Mr Hughes was not. These included abuse, wolf whistles, glaring, making offensive statements and gestures and playing a particular love song whenever she walked into the yard; and
2. that there was evidence of health problems experienced by Mrs Hughes in the period following these acts which, at least in part, could be attributed to them. This was capable of constituting serious emotional harm: s 359B(d)(ii), definition of "detriment" in s 359A. No similar evidence was given in respect of Mr Hughes.
 The second difference concerns the reasons for rejecting ground 4A of the notice of appeal which was in the following terms:
"That the learned Trial Judge erred by failing to direct the jury that the Crown bore the onus of proving that the circumstances of the alleged unlawful stalking were unreasonable."
 Her Honour concluded that the learned trial judge's directions in this respect were adequate. In my opinion the learned trial judge misdirected the jury in this respect but, because those directions were unduly favourable to the appellant, there was no miscarriage of justice.
 What the Crown had to prove for an offence under s 359E is that a person:
1. engaged in acts of one or more of or similar to the types of acts specified in s 359B(c);
2. on one occasion protractedly or on more than one occasion;
3. intentionally directed at a person;
4. of a kind which would cause that person apprehension or fear of violence reasonably arising in all the circumstances; or
5. which did cause her apprehension or fear of violence or (relevantly) severe emotional harm reasonably arising in all the circumstances.
 It can be seen from this analysis that reasonableness arises specifically only in deciding the last of these requirements; that is, in deciding the alternative questions:
1. whether acts of the type referred to in s 359B(c) were of a kind which would cause apprehension or fear of violence in Mrs Hughes to reasonably arise; or
2. whether, having determined that acts of the type referred to in s 359B(c) did cause Mrs Hughes apprehension or fear of violence or serious emotional harm, that apprehension or fear or harm reasonably arose.
 Other than in that way, s 359B does not, nor does any other relevant provision, import any notion of reasonableness into the requirements for liability for stalking. The submission by the appellant's counsel that the circumstances, as defined in s 359A, were relevant to a determination of the reasonableness of the appellant's conduct, in particular whether his acts were a reasonable response to acts by Mr Hughes, arises from a misconception of the meaning of s 359B. It follows that ground 4A, as framed, must fail.
 However when one comes to his Honour's directions on this question it appears that he fell under the same misconception as that which formed the basis for this ground. The learned trial judge directed the jury about the relevance of the circumstances referred to in s 359B(d) on no less than four occasions. Having summarized the effect of s 359B(d), his Honour said:
"Now the Criminal Code defines some of these terms, ladies and gentlemen. Circumstances means the following circumstances. The alleged stalker's circumstances, so you can take into account the circumstances of Mr and Mrs Ali. It means also the circumstances of Mr and Mrs Hughes, which is known, foreseen or reasonably foreseeable by the Alis. It means the circumstances surrounding the unlawful stalking and any other relevant circumstances."
In that passage his Honour simply explained the definition of "circumstances" in s 359A. But his Honour went on:
"So you can consider all of those circumstances in deciding whether the accused are guilty or not guilty of these offences."
That direction was plainly far too general. It arguably permitted the jury to take into account, amongst other things, the circumstances of the Alis in the manner contended for by the appellant's counsel in the misconceived submission which I have already rejected; that is, to consider whether the appellant's conduct was a reasonable or unreasonable response to Mr Hughes' conduct; presumably with the consequence that, if it was not proved to be an unreasonable one, they should acquit. So it was a direction which wrongly favoured the appellant.
 At the conclusion of his Honour's directions counsel for the appellant sought a redirection with respect to the relevance of circumstances. His Honour then redirected the jury with respect to the elements of stalking in s 359B. After addressing paragraphs (a), (b) and (c) of that section his Honour addressed paragraph (d) and in the course of doing so said:
"I referred you to the definition of 'detriment'. When the section talks about all of the circumstances, 'circumstances' mean the following circumstances: the circumstances of Mr and Mrs Ali; the circumstances of Mr and Mrs Hughes, which were known, foreseen, or reasonably foreseeable, by Mr and Mrs Ali; the circumstances surrounding the unlawful stalking, and any other relevant circumstances."
Again to this point, his Honour's direction did no more than explain the definition of circumstances. However he went on:
"So all of those circumstances are relevant and are, depending on your approach, elements of the offence."
In a sense, that is true, but to leave the matter to the jury in such a broad way may have left it open to them to consider those circumstances in determining the reasonableness of the appellant's conduct.
 This appears, in fact, to have been a matter of concern to some members of the jury for they sent a message to the court in the following terms:
"Some members of the jury are unsure of a conviction based on their belief that both the Alis' and the Hughes' actions had taunted each other. Can we find a guilty verdict if Mr and Mrs Ali's actions were based on circumstances arising from actions by Mr and Mrs Hughes?"
 His Honour then brought the jury back and re-directed them once again in the following terms:
"I have your note, ladies and gentlemen, and what I would say is this, that you must consider all of the circumstances. You must look at the totality of the circumstances and as I mentioned before, circumstances mean the following circumstances; the circumstances of Mr and Mrs Ali, the circumstances of Mr and Mrs Hughes which are known or foreseen or reasonably foreseeable by Mr and Mrs Ali; the circumstances surrounding the unlawful stalking and any other relevant circumstances, any other circumstances you consider relevant.
In deciding whether the acts of the accused amount to unlawful stalking, all of the circumstances must be taken into account. I cannot define those circumstances for you any more than they are referred to in the section in the Criminal Code. Each act relied upon must be considered separately together with the circumstances surrounding each, having regard to the overall or totality of the circumstances and you have to consider each of the acts relied upon in that context."
Here his Honour perpetuated his earlier error, apparently inviting the jury to consider the circumstances, as defined, in assessing, amongst other things, the reasonableness of the appellant's conduct.
 Once again the jury were brought back by his Honour, in response to a note from them that they had arrived at a decision on two counts and were undecided on two counts. Once again his Honour went through the definition of "circumstances" in s 359A and then said:
"Now, in relation to those circumstances, there are a number of matters that can arise for consideration. These are not an exclusive set of matters. They include matters such as, if there was a response by one side to the other side whether that response was a reasonable response, in the circumstances? Whether it was a proportionate response? Whether the response went overboard? Whether it was too much by way of response? Whether it was more than was required in the circumstances, or less than required in the circumstances? Whether it was an appropriate response, an inappropriate response, an adequate response, a sufficient response, a justified response, a justifiable response, an unjustified response? Whether the response was too much? Or was it an appropriate response? Whether it was enough by way of response? If there was an act by one side - say the Hughes for example, that - that provoked a response, whether the response was proportionate to the provoking act, to the precipitating act? Or whether it was more than you consider was reasonable in the circumstances? Whether it was more than enough, not enough, about right, not about right?
Whether it went too far, whether it went far enough, whether it was an over response to any provoking mechanism or incident or conduct or words, whether the response was just right, less than right, about what was right or not right, whether it was warranted or not warranted, whether the response, if a response was justified, went far enough or did it go too far and was it too long? Did it last too long? Was it too oppressive, not oppressive? Things like that. I mean there are a myriad of circumstances there which are all relevant to your consideration of the circumstances surrounding this alleged conduct."
Again the error is perpetuated, even more explicitly. However it was an error which plainly favoured the appellant. The appellant's case throughout the trial was not that he did not do most of the acts alleged against him - he conceded that he did - but that they were no more than a reasonable response to provocation by Mr Hughes. The misdirections did not therefore result in any miscarriage of justice.
 As to sentence, I disagree with her Honour's conclusion. I would refuse the application for leave to appeal against sentence. The sentence was undoubtedly a high one and Mr Campbell for the respondent quite properly concedes that it was at the high end of the appropriate range. However I do not think that it is outside that range. The appellant's conduct, more fully set out in the reasons of the President was deliberate, serious and sustained. The learned trial judge rightly described it as a campaign of harassment and intimidation. Moreover it continued after the appellant was charged and even after the Hughes had moved to another locality. The learned trial judge was entitled to accept, as he did, that it caused Mrs Hughes both serious emotional harm and placed her, together with her husband, in financial difficulties because of their need to move house and their inability to sell their house next door to the appellant.
 It is true that there was evidence of conduct by Mr and Mrs Hughes, especially it seems by Mr Hughes, which could also be described as conduct of the type referred to in s 359B(c) and that this may have provoked some of the appellant's conduct. And whilst that was not a defence for the appellant, that evidence, if accepted, was a relevant consideration for his Honour in assessing what sentence should be imposed. However the learned trial judge, having heard the evidence, appeared to take the view that the appellant's complaints about Mr Hughes were either wholly or substantially manufactured. He described the appellant as a liar and a player of the racist card without any foundation. These were conclusions which he was entitled to draw. It is true that some members of the jury, at a time prior to the giving of their verdicts, had been unsure about whether the appellant and Mr Hughes had taunted one another but there is nothing in their verdict which required the learned trial judge to reach conclusions on this aspect of the matter other than those which he did.
 The sentences imposed in the cases referred to by the President were imposed at a time when the maximum penalty for an offence of stalking without circumstances of aggravation was three years imprisonment. It was increased to five years imprisonment on 30 April 1999. It is necessary to take that change into account in assessing the comparability of the sentences imposed in those cases. When that is done I do not think it can be said that the sentence imposed here was manifestly excessive.
 I would therefore dismiss the appeal against conviction and the application for leave to appeal against sentence.
 BYRNE J: I agree with Davies JA.
 Criminal Code, s 359B(d)(i) and (ii).
 See definition of "circumstances" in s 359A.
 (1996) 190 CLR 348.
  2 QdR 401, 410.
 See transcript 556, 559 and 620-625.
 See s 132C Evidence Act 1977 (Qld) and R v Haselich  QdR 183.
 (1993) 179 CLR 44.
 See fn 6.
  QCA 26; CA No 426 of 1997, 6 February 1998.
  QCA 311; CA No 271 of 1997, 26 August 1997.
  QCA 418; CA No 301 of 1997, 21 November 1997.
  1 QdR 618.
- Published Case Name:
R v Ali
- Shortened Case Name:
R v Ali
- Reported Citation:
 QCA 64
McMurdo P, Davies JA, Byrne J
15 Mar 2002
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC281/01 (No Citation)||-||-|
|Appeal Determined (QCA)|| QCA 64  2 Qd R 389||15 Mar 2002||Appeal against conviction dismissed, application for leave to appeal against sentence refused: Davies JA and Byrne J (McMurdo P dissenting in part).|
|Special Leave Refused|| HCATrans 625||14 Mar 2003||McHugh and Heydon JJ.|