The Queen v Carlile[1999] QCA 363

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 185 of 1999

Brisbane

THE QUEEN

v

EDGAR WILLIAM CARLILE

Appellant

McMurdo P

Thomas JA

Chesterman J

Judgment delivered 3 September 1999.

Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 3 September 1999

1. This is an appeal against a conviction of stalking.

2. The only grounds of the appeal are:

1. That the conviction was unsafe and unsatisfactory on the ground that the complainant's evidence was unreliable; and
2. That the learned trial judge erred in his directions to the jury on the elements of stalking (the "concerning acts").

3. During the appeal, which the appellant conducted on his own behalf, the appellant made certain criticisms of his counsel in the trial below.  However in the absence of proper material which would support an additional ground of this kind and which could then be properly tested by the Crown such submissions are not open.^[1] It may be noted in any event that the record demonstrates that the appellant personally participated in the main decision for which he now wishes to blame counsel, namely the decision not to give or call evidence.

4. As to the first ground, there was an abundance of evidence upon which the jury could reasonably conclude that the appellant engaged in the doing of "concerning acts" on at least two separate occasions to the complainant.^[2]The complainant was a 22 year old university student who was employed on a part-time basis as a check-out operator at the Coles supermarket at Coorparoo.  She gave evidence that the appellant frequently passed through her check-out counter several times a day with a few items, sometimes lining up behind customers with many items in their trolley.  He started engaging her in conversation.  He told her that he was a truck driver and that he liked driving past schools when it was raining so he could splash water on the young girls' dresses and see through them.  He also told the complainant (who had a reddish tint in her hair) that he liked red-heads.  At times he followed her around the store.

5. The Crown case specified four particular "concerning acts".  The first of these occurred on 4 February 1998.  The appellant whilst going through the check-out asked the complainant out to lunch.  She replied that she had a boyfriend and was very happy.  He told her she thought she was happy but she was not.  He left a Myer bag on her counter.  She drew his attention to it and he told her to keep it.  It contained an envelope bearing her name "Rachel".  She was too busy to read it properly but opened it and noted that it ended with the statement "From who?"  About half an hour later the appellant returned in an agitated state and said to her "You have misunderstood me.  You must know I am unstable.  You fucked with my head.  Your safety is at risk and so is mine".  The appellant started to cry.  A nearby attendant said "I think you had better leave" and went to the service desk and returned with the service manager.  The appellant was yelling and making statements that the complainant had been leading him on.  He continued to use vulgar language.  One of the service personnel took her to another part of the premises.  She was extremely upset and was even more upset when she actually read the sexually suggestive message on the front of the card. 

6. Further evidence supporting the occurrence of the incident was given by another employee, Miss Brown, who saw that the complainant had a card and observed the appellant return later.  She could not hear what was said but she noticed that the complainant started to cry and she heard the appellant yelling when other staff members confronted him.

7. The second concerning incident, according to the evidence, occurred on 7 February 1998 just before closing time.  The complainant saw the appellant standing in a queue waiting to be served at her check-out.  She left it and went to the service desk.  The appellant followed her so she returned to her check-out again followed by the appellant.  This occurred three or four times.  The appellant started yelling out words to the effect "Look what you have done".  An employee, Mr Stevenson, told the appellant to leave.  The complainant left the area at this point.  She was upset by the incident.  Again the complainant's account is supported in part by Mr Stevenson and by another employee, Ms Conte.  They saw the appellant follow the complainant from the check-out to the service desk.  Mr Stevenson heard the appellant say "What is going on you little slut?" upon which he told the complainant to go out the back.  He then had an animated discussion with the appellant who was swearing and concluded the incident by stating "This is harassment you can't do this to me" and walked out of the store.  However neither Mr Stevenson nor Ms Conte observed the earlier acts of following that were described by the complainant.

8. The third concerning act (28 February 1998) consisted of the appellant driving past the complainant while she was walking along a road near her house.  According to the complainant's evidence the appellant was in a white Landcruiser.  He beeped his horn, turned around and as she crossed the road pulled over in front of her yelling words such as "whore", "bastard" and "slut".  She walked behind his vehicle to cross the street but he reversed it towards her.  She continued past a service station and he parked in front of her.  He swore again saying "Is this what you do to everyone who cares about you?"  She kept walking and he drove past her again yelling further abuse.  She was shaken by the incident however she did not report it to two uniformed police officers who were walking nearby.  She said she did not do so because she was in shock. 

9. The fourth concerning incident was said to have occurred on 3 March 1998, although on the evidence it seems more likely to have been 2 March 1998.  In any event it is within the terms of the indictment which alleges stalking between 1 December 1997 and 3 March 1998.  The allegation is that the appellant drove past the complainant in another vehicle whilst she was waiting outside her university.  He slowed, sounded the horn and grinned at her.  She ran inside the university.

10. The appellant was arrested on 5 March.  It is not alleged that he made any admissions to police.

11. Defence counsel cross-examined the appellant and the Crown witnesses.  Inter alia he put to the complainant that the appellant had not seen her on 28 February 1998 and that "at no stage did my client wave to you from his truck on 2 or 3 March 1998".  The complainant disagreed.

12. The appellant elected not to give or call evidence.

13. So far as the first ground of appeal is concerned, having reviewed the evidence there is no basis for concluding that the complainant's evidence was unreliable or that it could not reasonably be accepted by a jury.  There is simply no basis for thinking that the conviction was unsafe and unsatisfactory on this ground.

14. A number of the submissions made by the appellant to this court during the appeal amounted to factual assertions such as that he had not stalked the complainant and that he was incapable of stalking.  Such assertions are unhelpful, particularly when the evidence suggests otherwise.  His statements included that his just being in the store with her was not a concerning act, and that he had got upset because he thought they were stealing his card and he wanted it back.  The submission culminates in "I had a girlfriend called Rachel whom is now back in England, this is who the card is for ... [The complainant] seems to think she in the only person in the world called Rachel ... this memory has only recently returned as my health has improved".  Quite apart from the unacceptability of the submission, not to mention its audacity, these are assertions of evidence which were not given below and which would hardly have helped the appellant if they were.

15. The appellant referred to the fact that video footage had existed in relation to the time of the incident of 7 February 1998, but as no request was made by the police for its retention it was taped over in the usual course.  Another point made by the appellant is that the witnesses Conte and Stevenson were unable to support the complainant on all aspects of her description of the events of 7 February.  Another is that the complainant failed to complain to police who were nearby on the occasion of 27 February.

16. In the overall context of the evidence in this case these and other arguments of the appellant fall well short of raising any concern as to the validity of the verdict.  Indeed, it is a very strong and convincing case.

17. The second ground alleges error in the directions to the jury on the elements of stalking.  His Honour carefully instructed the jury on the offence and its elements, doing so accurately and in accordance with the decision of R v Hubbuck.^[3] This included a direction that the jury must be unanimously satisfied that the same two concerning acts occurred before they can convict the appellant.

18. The second ground is not made out.

19. The appeal should be dismissed.