Attorney-General v Tupper[1998] QCA 362

COURT OF APPEAL

McPHERSON JA

THOMAS JA

CULLINANE J

CA No 208 of 1998

THE QUEEN

v.

ANTHONY NOEL TUPPER (Applicant)

and

CA No 221 of 1998

THE QUEEN

v.

ANTHONY NOEL TUPPER

(Respondent)

and

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

BRISBANE

DATE 22/09/98

JUDGMENT

McPHERSON JA: I'll ask Mr Justice Cullinane to give the first judgment in this matter.

CULLINANE J: In this matter the appellant appeals against his conviction on a count of stalking and seeks leave to appeal against a sentence of three years imprisonment with a recommendation that he be eligible to be released on parole after nine months imposed in respect of that count. In addition, the Attorney-General has appealed against the alleged inadequacy of the sentence imposed. 

The offence arose out of a history of ill-feeling between the appellant and a man Bleisner which had, as its background, some earlier sexual relationship between Bleisner and the appellant's wife. It appears that the appellant formed the belief that his wife had been raped by Bleisner whereas Bleisner contended that the relationship was consensual.

The appellant was placed on probation in relation to a count of stalking involving Bleisner, the probation order being made on 28 November 1996. It was subject to two requirements; one of which was that the applicant have no contact, direct or indirect, with Bleisner, Bleisner's wife or his mother. It appears that there had been a history of telephone calls which constituted the basis of that offence.

The offence the subject of this appeal is alleged to have been committed by a series of actions claimed to constitute concerning acts for the purposes of section 359A of the Criminal Code, said to have been committed between August 1996 and March 1997. Two circumstances of aggravation were alleged in relation to the offence. The first was that one of the concerning acts involved a threat of violence to the man Bleisner. A second circumstance of aggravation alleged is that some of the concerning acts contravene an order imposed by a Court under the law of the State of Queensland - this is a reference to the probation order. 

Not all of the concerning acts opened to the jury were ultimately persisted in by the prosecution. Primarily they were said to concern the man Bleisner, whilst in two instances it was the case for the prosecution that they concerned Bleisner's wife. 

The offence of unlawful stalking requires proof: (a) that a person engages in a course of conduct which involves doing a concerning act on at least two separate occasions to another person or other persons; (b) that the person whose conduct constitutes a concerning act intends that a second person be aware that the course of conduct is directed at that person, even though the concerning acts may be done to or to the property of a person other than that person; (c) the second person is aware that the course of conduct is directed at the second person, and (d) that the course of conduct would cause a reasonable person in the second person's circumstances to believe that a concerning offensive act is likely to happen.

A concerning offensive act means, in summary, an unlawful act of violence by the first person against either the second person's person or property or that of another closely related person. 

Here on behalf of the appellant it is contended that the conviction is unsafe and unsatisfactory. In addition, in the written outline, complaint is made about some directions which His Honour gave to the jury and in respect of which leave to amend the notice of appeal has been given.

Where a jury's verdict is challenged upon the grounds that the conviction is unsafe or unsatisfactory it is the function of an appellate Court to review the evidence and ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty, bearing in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and has had the benefit of having seen and heard the witnesses (see M v. The Queen 181 CLR 487).

It seems to me that His Honour took the jury carefully through the evidence in so far as it related to each of the concerning acts relied upon and fully instructed them as to the requirements of section 359A and the elements which the jury had to be satisfied of beyond a reasonable doubt before a verdict of guilty could be returned.

It is apparent that in some respects the man Bleisner's evidence was flawed.  In relation to some incidents it was not consistent with accounts he had given on an earlier occasion and in respect of one incident which occurred at the Court on the day that the probation order was made it conflicted with the evidence of an independent witness.

His Honour referred the jury to these aspects of the evidence as he dealt with each of the concerning acts and also made some general comment about Bleisner as a witness, including some reference to his emotional condition which Bleisner claimed was a result of the appellant's conduct. As I have already mentioned, some of the concerning acts involved Mrs Bleisner rather than her husband and the learned trial Judge made some comment about her as a witness which might be thought to be somewhat favourable to her. Mrs Bleisner acknowledged that her husband appeared to be consumed with the appellant. 

The appellant did not give evidence and the defence was conducted upon the basis of a challenge to the accounts given by Bleisner and his wife. 

So far as the directions about which complaint is made are concerned, these are primarily concerned with the direction which His Honour gave to the jury about the second of the circumstances of aggravation I have referred to. However they also concern the use of a record of interview conducted with the appellant in relation to the earlier offence.

Plainly the evidence of the previous conduct revealed in the record of interview of the appellant was relevant to the matters provided for in subsection (2)(b), (c) and (d) of section 359A and generally provided important evidence of the relationship between the appellant and Bleisner, that is, evidence which was important in relation to those issues. 

His Honour, in my view, adequately directed the jury as to the limits of the use to which it could be put and made it clear that it could not be used for the purposes of determining whether the course of conduct the subject of this indictment had occurred. 

A complaint which is made about the direction on the second circumstance of aggravation - an allegation that some of the concerning acts constituting the offence contravene the probation order - is based primarily upon a passage which appears at page 116 of the record, where His Honour said:

"The Crown says if you accept these incidents occurred afterwards as being concerning acts, as long as you accept there are at least two and you all agree on the same two, then in those circumstances the Crown says you could convict him of that second circumstance of aggravation, that is, if you are satisfied beyond a reasonable doubt of the principal offence of stalking."

Almost immediately before that passage His Honour told the jury:

"The Crown in a second circumstance of aggravation alleges that some of the acts constituting the offence contravened an order imposed by a Court under the law of the State of Queensland."

This was also the language used by His Honour when he referred a little earlier to the first circumstance of aggravation. I do not think that taken as a whole the jury could have understood that His Honour was suggesting that the concerning acts for the purposes of a second circumstance of aggravation might be other than those which constituted the principal offence.

On my reading of the evidence and of His Honour's summing up, I am unpersuaded that there is any basis for forming the conclusion that the verdict was unsafe or unsatisfactory. The question of the guilt or otherwise of the appellant in respect of the charge turned essentially upon the jury's assessment of the evidence of primarily Mr Bleisner but also his wife. I am satisfied that it was open to the jury to be satisfied beyond a reasonable doubt of the appellant's guilt.  I would dismiss the appeal against conviction.

As to the application for leave to appeal against sentence the applicant has some criminal history. The most serious feature of this conviction is that some of the conduct involved occurred when he was on bail in respect of the first charge of stalking and some occurred after he had been placed on probation for that offence. It is clear that he had developed some obsessive behaviour towards Bleisner, and it is also plain from a reading of His Honour's sentencing remarks that his conduct had seriously emotionally affected Bleisner and, to a much lesser extent, his wife.

In imposing a sentence of three years imprisonment His Honour described it as being at the top of the range, a description which I think is borne out by reference to judgments of this Court in stalking cases. The recommendation that the applicant be eligible to be released after a period of nine months is the subject of the appeal by the Attorney-General. 

The factor which appears to have led His Honour to take this course is to be found in the evidence of Dr Grant, a psychiatrist, to the effect that the applicant was somewhat intellectually handicapped functioning at a borderline retarded level.  He tends to be dogmatic and rigid in his ideas and there is some degree of self-righteousness and self-centredness. He does not suffer from any psychiatric disorder. His Honour expressed the view that the appellant's intellectual difficulties would make it harder for him in prison or result in him having a harder time than a person who did not have this disadvantage.

Characteristics of this kind though not amounting to a recognisable psychiatric disorder or for that matter resulting in any significant degree of intellectual impairment should nonetheless be afforded some weight in the sentencing process. See cases such as Shannon v. The Queen (1978) 20 ALR 1 and The Queen v. Mathieson COA No 19 of 1994 delivered on 12 April 1994.

In my view there are balancing factors involved in the sentence imposed here with the head sentence being at about the top of the range as His Honour observed whilst a recommendation for eligibility for release after one-quarter of the sentence is served might be thought to somewhat offset that and provide scope for release on parole with a significant part of the term hanging over the applicant's head upon his release.

I think that neither the appellant nor the Attorney-General has shown that the sentence lies outside of the scope of the proper sentencing discretion and in my view both the Attorney-General's appeal and the appellant's application for leave to appeal should be dismissed.

McPHERSON JA: I agree.

THOMAS JA: I agree.

McPHERSON JA: The orders will be as Mr Justice Cullinane stated them.