The Queen v Hubbuck[1998] QCA 11

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 358 of 1997.

Brisbane

[R  v.  Hubbuck]

THE QUEEN

v.

GARY EDWARD HUBBUCK

Appellant

Pincus J.A.

McPherson J.A.

Moynihan J.

Judgment delivered 17 February 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL ALLOWED, CONVICTION QUASHED, NEW TRIAL ORDERED.

CATCHWORDS: Criminal Law - appeal against conviction - unlawful stalking - where person must engage in a course of conduct involving doing a concerning act on at least two separate occasions - whether the jury must be in agreement as to the identity of the two or more occasions on which concerning acts were done.

Criminal Code s. 359A

KBT (High Court unreported, 9 December 1997)

Counsel:  No appearance on behalf of the appellant.

Mr M Byrne Q.C. for the respondent.

Solicitors:  No appearance on behalf of the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date: 10 February 1998.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 February 1998

This is an appeal against conviction, the appellant having been convicted of unlawful stalking, an offence created by s. 359A of the Criminal Code.  When the appeal was called on neither the appellant nor anyone representing him appeared.  Mr Byrne Q.C. announced his appearance for the respondent.  In a written submission for the respondent, we were referred to part of the judge’s directions to the jury and to the decision of the High Court in KBT (1997) 72 A.L.J.R. 116.

Section 359A(1) of the Criminal Code says that a person must not unlawfully stalk another person, and subs. (6) makes unlawful stalking a crime.  Section 359A(2) defines unlawful stalking as depending on the co-existence of four conditions, the first of which is stated as follows:

"(a) the first person engages in a course of conduct involving doing a concerning act on at least 2 separate occasions to another person or other persons (whether the second person, another or others);" 

The rest of subs. (2) sets out other conditions which must be satisfied.  The expression "concerning act" used in para. (a) of s. 359A(2) is defined in subs. (7) as meaning acts of various sorts;  for example para. 7 (a) is:

"following, loitering near, watching or approaching another person;"

Because of the presence of the words "at least" in s. 359A(2)(a) it is clear that the Crown case could be based on an allegation that concerning acts were done on more than two occasions - for example on three or 300 occasions.  The question which Mr Byrne has, helpfully, raised is whether in such a case the jury must be in agreement as to the identity of the two or more occasions on which concerning acts were done.  For example, if the Crown relies on concerning acts (A), (B) and (C), is it enough that six jurors are satisfied that (A) and (B) occurred and were concerning acts and that the others are satisfied that (B) and (C) occurred and were concerning acts?

In the present case the judge did not tell the jury that all must agree on the same two concerning acts as having occurred.  Section 59 of the Jury Act 1995 requires that the verdict of the jury in a criminal trial be unanimous, but does not say that all must reach their conclusion of guilt or innocence by the same route.  If two accused are proved to have been involved in causing the death of another, but it is unclear which of the two was the principal offender and which merely an aider, it seems obvious that the jury must be able to convict both, without being agreed on which of the two is caught by s. 7(1)(a) of the Code and which by one of the other paragraphs of that subsection.  But it is, in the present case, unnecessary to attempt to determine the proper scope of the doctrine that not all the jurors need take the same path to a conclusion of guilt or innocence. 

That is so because the decision in the KBT case is indistinguishable from the present.  There, the appellant was convicted of maintaining a sexual relationship, contrary to s. 229B(1) of the Code.  Section 229B(1A) requires that a person not be convicted of the relevant offence unless it is shown that the offender has during the relevant period done certain defined acts on three or more occasions.  The subsection concludes:

" . . . evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions".

In KBT evidence was given of a considerable number of incidents which the Crown said fulfilled the description in s. 229B(1A).  The judge did not instruct the jury that they had to be satisfied of the same three offences on the same three occasions.  The High Court held that the actus reus of the offence "is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions" (118).  On that interpretation of the section, which appears to me to differ from that which is suggested by the actual language used, the Court held that there could be no conviction unless the jury were agreed as to the commission of the same three acts. 

I can see no ground for distinguishing the present case from KBT;  indeed, the point here is clearer.  Whereas there the provision in question was I think designed to make proof of the three acts necessary, but not necessarily sufficient, for conviction, here s. 359A seems to make the offence consist in the doing of a concerning act on at least two separate occasions.

Although it is perhaps unlikely that a direction to the effect mentioned would have made a difference to the verdict, as the facts were contested it is impossible to conclude that the absence of the direction required did not matter.  The appeal must be allowed, the conviction quashed and a new trial ordered.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 17 February 1998

This appeal should be allowed, the verdict and conviction set aside, and a new trial ordered.  I agree with the reasons of Pincus J.A.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 17 February 1998

I agree with the reasons of Pincus J.A. and the order he proposes.