R v Briggs[2013] QCA 110

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted by a jury of two counts of unlawful stalking, the first of which concerned his ex-wife, and the second a work colleague of hers, Ms Fogarty.  The period of stalking charged in respect of Mrs Briggs was between November 2007 and July 2010; in respect of Ms Fogarty, between February 2008 and July 2010.  He was sentenced on the first count to 15 months imprisonment and on the second to nine months imprisonment.  Both sentences were wholly suspended for an operational period of four years.  The appellant appeals against the convictions on the grounds that the verdicts were unreasonable and that there was a miscarriage of justice when the trial judge refused to discharge the jury after the revelation of an error in defence counsel’s closing address.  He also seeks leave to appeal the sentences imposed, on the ground that they were manifestly excessive.

The offence of unlawful stalking

[2] Section 359B of the Criminal Code defines unlawful stalking.  The parts of the section relevant for present purposes are:

“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, email or through the use of any technology;

(iii)loitering near, watching, approaching or entering a place where a person lives, works or visits;

…

(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;

…

(d)that—

…

(ii)causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

The evidence on count 1

[3] The appellant and his former wife had married in 1980, and emigrated from South Africa to Australia in 1989.  In November 2007, Mrs Briggs decided to end the marriage.  The appellant remained with the couple’s teenaged son in their house at Sunnybank Hills, while Mrs Briggs moved to a rented unit.  Earlier that year she had formed a friendship with a man named David, to whom the appellant was in the habit of referring as “Ugly Dave”.  One evening in November 2007, she was at David’s house when there was a banging on the window and she heard the appellant say words to the effect, “Are you fucking my wife?”, and “Corinne [Mrs Briggs], are you enjoying this?”.  The appellant did not challenge Mrs Briggs’ evidence about that event.

[4] In early 2008, Mrs Briggs started a relationship with another man, Michael.  One evening, while on the veranda of her unit with him, she referred to seeing two stars, one for him and one for her.  Some days later she received from the appellant a wallet she had given him, inside which was a note suggesting that she give it to “Ugly Dave” or to “the person you saw in the sky, one of the two stars; one you & one him”.  Again, the appellant did not dispute that evidence.

[5] Mrs Briggs was in possession of a company phone.  Before separating from the appellant, she had not received any untoward calls on it, but in late November 2007 she began to receive what she called “hang up calls”.  Her telephone would ring, but when she answered there would either be silence on the line for a couple of seconds, or the caller would hang up immediately.  Most of the calls were from a private number, but she saw that one, received one morning at 5.20 am, was from what she referred to as the “white phone”: a phone connected to an internet line at the house she had shared with her husband.  The appellant made admissions at the trial that in March 2008, 10 calls had been made from the “white phone” to Mrs Briggs’ mobile phone and that in the same month another five calls had been made to her from the appellant’s mobile phone.

[6] Mrs Briggs received silent telephone calls on her company phone at all hours of the day and night, leading her to make a complaint to Telstra in February 2008.  After that complaint, she began to receive text messages from Telstra pay phones, all offensive and many suggesting that she was engaging in sexual activity with “Ugly Dave”.  Meanwhile, silent calls were received at the landline at her workplace, answered by her and others, and she became aware that work colleagues were also being harassed by silent calls to their phones.

[7] The text messages to Mrs Briggs’ phone generally referred to the appellant in the third person (“your ex”), but contained some details which Mrs Briggs said were known only to him or to very few people.  They were, the references to “Ugly Dave”, a name which only the appellant used, although their daughter was aware of it; mention of Mrs Briggs’ mother’s maiden name, which she said was not known to anyone in Australia other than some people in Melbourne; mention of her own maiden name, with which even her own children were not familiar at the time it was referred to in a text message; a reference to the appellant and her having been married for 26 years (which was a year short of the correct period, but reflected what the appellant stated as its duration in a text from his own mobile phone); and in one text, a list of names of her friends.  Mrs Briggs, said, too, that she had collected a file of information adverse to Ms Fogarty, the complainant in the second count, with whom she was on bad terms.  No-one but the appellant knew about it, but it was the subject of some text messages.  As well, there were two messages in Afrikaans, a language spoken by the appellant and Mrs Briggs, and terms of abuse in Afrikaans in other texts.

[8] Some of the text messages Mrs Briggs received, which referred to sexual acts, and more particularly to sexually transmitted diseases, purported to be from “Dave”.  Mrs Briggs’ friend David gave evidence that they were not from him, but he had himself received offensive text messages referring to “Ugly Dave” and some messages which purported to be from Mrs Briggs, as well as telephone calls.  The managing director of the company for which Mrs Briggs worked, Mr Ball, gave evidence that on 13 March 2008, he had telephoned the appellant and asked him to stop calling his staff.  The appellant responded angrily and denied doing so.  From about mid 2008, Mr Ball received “unwanted” calls from an unknown number.  In September 2008, he gave evidence in a proceeding concerning the appellant and Mrs Briggs.  After that, he began to receive text messages purporting to be from Mrs Briggs, which proposed that she have sex with him.

[9] Mrs Briggs said that the calls to her work colleagues and friends had caused her a great deal of embarrassment.  She had changed her telephone numbers, her vehicle and the usual routes she took from place to place for fear of her whereabouts becoming known.  She also resumed her maiden name and made sure that her personal details were not publicly accessible.

The evidence on count 2

[10] The complainant in the second count, Ms Fogarty, had also emigrated from South Africa, and met the appellant and Mrs Briggs when she first arrived in Australia.  Later, she went to work for the same company as Mrs Briggs.  She, too, began to receive unwanted telephone calls and text messages.  Ms Fogarty could not remember when the calls started, but she began making a note of them in February 2008, recording the dates and times at which they were received.  In most instances they did not involve conversation, but on one occasion she received a call on her mobile telephone from a man with a South African accent.  The caller purported, falsely, to be an immigration officer who had documents relating to her deportation.  (Ms Fogarty was on a work visa.)  She received that call while she was driving and put it on speaker phone.  Two work colleagues, Mr Boardman and Mr Berends, were passengers in the vehicle, and both gave evidence supporting Ms Fogarty’s account of the conversation.

[11] On 21 March 2010, Ms Fogarty received a number of calls emanating from a pay phone in the town of Glenelg in South Australia.  A motel about 120 metres from the pay phone had records of a “Greg Briggs” as a guest that night.  The appellant admitted that he was in South Australia at the time when those calls were made. Other calls were made from pay phones at Eight Mile Plains, Macgregor and Sunnybank.  The appellant was living in Sunnybank Hills.  Ms Fogarty also received a number of texts between 2008 and 2010, of which some referred to her immigration status; some alluded to her supposed sexual activities with work colleagues; and some referred to a file in Mrs Briggs’ possession which would get her sacked.  Ms Fogarty gave evidence that in consequence of the texts and telephone calls, she suffered stress and depression, had to change her telephone number and eventually moved cities.

[12] The appellant did not give evidence, but he made a formal admission that he had been out of Australia for four periods of two to three weeks in 2008, 2009 and 2010.  During those periods, no harassing calls or texts had been received by the witnesses otherwise subjected to them.

The unreasonable verdict ground

[13] The appellant made the following points about why the verdicts were unreasonable.  Ms Fogarty’s record of the calls made to her showed four calls between 12.22 am and 12.43 am on 13 April 2009.  The appellant’s Telstra account showed that from 12.10 am that morning, his landline was engaged for about 41 minutes in a call to a Melbourne number.  The same number had been called earlier at 10.40 pm, for about an hour.  Evidence was admitted, without objection, from a police officer, to the effect that the subscriber to that account had been contacted and said that she knew the appellant.  No statement was taken from the woman contacted, because she could not recall any details.

[14] The fact that the appellant was engaged in that call when calls were made to Ms Fogarty’s account showed, it was contended, that he could not have made them; and if he had not made those calls, there ought to be a reasonable doubt as to his having made any others.  The fact of the earlier call at 10.40 pm to the same number was consistent with the appellant’s being friendly with the person called and engaging in lengthy night-time conversations with her.

[15] The appellant also argued that derogatory references to him in the texts sent to Mrs Briggs made it improbable that they emanated from him: in three messages he was described as a “kafer” [kaffir]; in four, of having a very small penis; and in another, of being sexually inadequate.  And despite the incident in which the appellant had evidently been spying on Mrs Briggs and her friend, David, in November 2007, Mrs Briggs had not received any nuisance calls or offensive text messages immediately after it.  Her first text message from the appellant after that event came in January 2008 and it was, in fact, conciliatory, praising her as having been a good wife (for 26 years) and mother.

[16] Next, it was said that the information in the messages was not exclusively within the appellant’s knowledge.  Mrs Briggs knew other people resident in Australia who could speak Afrikaans, and she had conceded that there were people in Melbourne who knew her mother’s maiden name.  She had complained to her daughter and a friend about Ms Fogarty.  (Mrs Briggs said in evidence that the friend would not have known about the file that she kept on Ms Fogarty, and it was not suggested that her daughter did.)

[17] It was submitted that there were other possible culprits.  Michael (the man who had formed a relationship with Mrs Briggs) had received a threatening message in November 2009 from a man named King.  Mr Boardman had received an offensive text message in October 2009 from a number which could not be associated with the appellant.  From August 2008 to December 2008, Ms Fogarty’s work mobile telephone number had been changed and was not on the company’s website or otherwise publicly available, but she continued to receive telephone calls.  She had received a text message in 2009 which referred to a colleague’s business trip and included the latter’s mobile telephone number, neither of which the appellant could have been expected to know.  Both of those matters indicated that the caller and sender of messages was someone other than the appellant, presumably within the company which employed Ms Fogarty.

[18] In further support of the thesis that someone other than the appellant was responsible, defence counsel at trial elicited from the investigating officer that when he executed a search warrant on the appellant’s property in July 2009, the appellant told him he had received unwanted calls and showed him a mobile phone containing text messages from a Telstra pay phone.  Photographs of four text messages were tendered.  They were in similar terms to those sent to Mrs Briggs and included an allusion to the appellant as a “kafer”, with the same misspelling as was used in the messages to her.

[19] Finally, it was pointed out that although there were security cameras near the Glenelg pay phone, no CCTV footage of the person making the calls on 21 March 2010 was tendered.  The Glenelg calls were made at a time when the appellant had already had a search warrant executed on his property and knew that the police regarded him as a suspect.  There was a nearer pay telephone to the motel where “Greg Briggs” was recorded as staying than the one actually used.  It had no security cameras.  Yet the calls were made from a telephone further away, which was under surveillance; suggesting that their maker had no concern about being under suspicion.

[20] Counsel for the appellant here made the point that it was not open to the Crown to say that the direct evidence of the appellant having spied on his wife when she was with “Ugly Dave” and Michael, respectively, would constitute stalking for the purposes of count 1.  An element of the offence was detriment.  What was described by Mrs Briggs as constituting the relevant detriment was attributable to all of the alleged conduct, including, as well as those incidents, the telephone calls and text messages sent.  That submission must, in my view, be accepted; although the direct evidence goes a considerable way to establishing the attitude of the appellant to his wife and the motivation which may have underlain the making of calls and sending of texts. 

[21] The contentions put on behalf of the appellant were, in my view, all matters which any capable counsel would raise in a defence address; as, indeed, counsel in this case did.  And they were the subject of counter-arguments, at trial and here.  The submission as to the significance of the landline call to Melbourne made simultaneously with the calls to Ms Fogarty on 13 April 2009 reflects what was said in defence counsel’s address at trial.  Anticipating that contention, counsel for the Crown at trial argued in her address that it depended on a number of assumptions: that Ms Fogarty had recorded the time of the calls she received accurately, although there was evidence that on one occasion she had made a 12 hour error in recording the time of calls; that the telephone call to Melbourne was not made by the appellant’s teenaged son; and that the appellant was not using a mobile telephone to make the calls to Ms Fogarty while at the same time using the landline.  And, the prosecutor suggested, it was consistent with a course of conduct of covering his tracks that the appellant would set up a telephone call and then make other calls to Ms Fogarty at the same time, so as to put in place an alibi. 

[22] Counsel for the respondent here similarly pointed out that whoever made the calls and sent the text messages went to some pains to disguise his identity, using untraceable Telstra pay phones and signing off the texts with the names of Mrs Briggs’ friends, David and Michael, or, in another case, a co-worker.  Those were, counsel contended, tactics used to direct attention away from the appellant and were consistent with setting up a “dummy” call.  Similarly, it was contended, the derogatory references to the appellant in the texts were another means of directing attention away from himself.

[23] The points made on the appellant’s behalf were properly and competently raised for the jury’s consideration, but the jury could reasonably have accepted the arguments made against them.  They were not, individually or collectively, such as to preclude a properly instructed jury from returning verdicts of guilty.  In addition to  the direct evidence of the two incidents in which the appellant spied on his ex-wife, there was an abundance of circumstantial evidence pointing to him  as the source of the calls and text messages: the calls to Mrs Briggs emanating from his mobile phone and internet phone; the information in the texts known to the appellant and to very few, or no, others; the use of Afrikaans in some texts; his presence in South Australia when the Glenelg calls were made to Ms Fogarty; the proximity of his residence to the three pay phones from which other calls to Ms Fogarty were made; and the cessation of calls and texts when he was out of the country.  It was, in my view, entirely open to the jury to conclude that there was no reasonable hypothesis, in the form of a third party’s responsibility for the calls and texts, consistent with the appellant’s innocence, and that he was guilty of the offences.  The contention that the verdicts were unreasonable must be rejected.

The refusal to discharge the jury

[24] The second appeal ground, that a miscarriage of justice resulted from the trial judge’s refusal to discharge the jury, arose from defence counsel’s being forced to retract a submission which featured prominently in his address.  One of the text messages received by Ms Fogarty was sent from a pay phone at 10.48 am on 26 May 2008.  The agreed admissions, which were derived from Department of Immigration records, contained a transcription error: they gave the appellant’s departure date from Australia as 25 May 2008, when it was, in fact, 26 May 2008 at 1.14 pm.  Neither counsel seems to have cross-checked the records against the admissions before they were tendered.  Defence counsel made a submission which was based on the error, contending that the appellant could not have sent the relevant text because he was out of the country.

[25] At the end of defence counsel’s address, counsel for the Crown pointed out the error in the admissions as to the departure date.  Counsel for the defence asked for the jury to be discharged because he had wrongly put the proposition that the relevant call could not have been made by his client.  That mistake, he submitted, might have the effect of diminishing the credibility of the balance of his argument and prejudicing the defence case.  The trial judge refused the application.

[26] Counsel for the appellant here submitted that it was irrelevant where the fault behind the error lay, and that it was not an answer to say that at any re-trial, the defence would be in no better position in relation to the evidence.  The issue was whether the mistaken submission had such a damaging effect on the balance of the defence address that the failure to discharge the jury occasioned a miscarriage of justice.  In my view, that is correct, and it is necessary to review the content of the defence address in order to assess the significance of what occurred.

[27] Counsel for the defence commenced his address by saying that it was his client’s position that it was not he who made the calls and sent the texts.  The first critical piece of evidence, he said, came in the form of the appellant’s telephone account, which showed that his landline was engaged on 13 April 2009 when the calls to Ms Fogarty were made; so he could not have made those calls.  Counsel went on to make the submission that the 26 May text message similarly could not have been made by his client because he was overseas.  That was, counsel submitted, “the end of it”;   he could close his address at that point, but he wanted to deal with some other aspects of the Crown case. 

[28] From there, counsel made submissions about the improbability of the appellant’s having sent the texts in light of his friendly communication with his ex-wife in January 2008 and the offensive references to him in some of the text messages.  Those features would lead the jury to conclude that it was not the appellant sending the messages, “leaving aside the fact that [the appellant had] the complete defence for that message on the 26th”.  It was admitted that some of the calls had been made from the internet telephone at the appellant’s house, but there was no evidence that it was working correctly, and the appellant was not the only person in the house.  The prosecution could not prove that the appellant had made the internet calls. 

[29] Counsel reverted to the topic of the 13 April 2009 call to Melbourne, pointing out that there was no evidence of the source of the calls made at the same time to Ms Fogarty – whether they were made from a public telephone or a mobile telephone – and that the prosecution had failed to disprove that the appellant was on the telephone to his Melbourne friend.  And it made no sense, he said, for the appellant to use the Glenelg pay telephone which was under camera surveillance; the person who made those calls to Ms Fogarty must not have expected to be under suspicion.  The jury might find it unlikely that it was not the appellant (presumably because he admitted to being in South Australia) but they should remember the text message sent to Ms Fogarty while the appellant was overseas.

[30] Counsel pointed to the information about Ms Fogarty’s telephone number and her workmate’s travel, which he said was not known to the appellant.  Finally, he raised other possibilities as the sources of the calls and texts: the appellant’s daughter; the man named King who had left a threatening message on Michael’s telephone; the sender of the offensive text to Mr Boardman; and the individual who had sent text messages to the appellant.  He explored each of those possibilities at some length.  The investigation was, he suggested, unbalanced, because the police had not properly investigated the text messages sent to the appellant or his assertion that he had received hang-up calls. 

[31] Counsel concluded his address by referring again, briefly, to the call from the landline on 12 April, which showed that the calls to Ms Fogarty had not been made by the appellant, and to the text message sent while the appellant was overseas.  He said that he had harped on those points and that there were other aspects of the Crown case which would lead to a reasonable doubt; “but what you’re left with is a text we can’t have sent and a phone call we can’t have made.  That’s reasonable doubt.”

[32] After refusing the application to discharge the jury, the trial judge decided, instead, to inform the jury of the error in the admissions and to give leave to the prosecution to re-open its case to adduce the source document for the immigration details, showing the correct departure date and time.  Defence counsel was permitted to address the jury further.  He pointed out that the relevant text had been sent at 10.48 am and that the appellant would have had to be at the airport at least two hours before the scheduled departure at 1.14 pm.  He concluded his further address by giving the jury a brief summary of the other arguments he had made.

[33] Counsel for the appellant here submitted that the trial’s proceeding after the retraction of the defence submission amounted to a defect in process of a kind referred to by Gleeson CJ in Nudd v The Queen[1]: it was such that the court could not justly assess the strength of the case against the appellant, and the conclusion of a miscarriage of justice must be drawn.  It was impossible to know what other submissions defence counsel might have made in lieu of the one he was forced to abandon; although counsel here was forced to concede he could not point to anything in particular. 

[34] Counsel described the submission as to the appellant’s absence from the country when the 26 May text message was sent as “the fulcrum or the pivotal point around which the entire defence address... really turned”.  I think that is an overstatement.  It was one of two significant submissions made for the appellant in a background of several less significant arguments.  I am, however, unconvinced that the mistake, and the consequent retraction of the submission, were so prejudicial to the appellant as to require discharge of the jury.  What occurred was unfortunate, but it was unlikely to deflect the jury from the remaining arguments, had there been real substance in them.

[35] I am unable to identify any alternative argument to those put by defence counsel at trial or, indeed, to accept that any existed; counsel seems to have exhausted every possible submission the evidence permitted in favour of his client.  No difficulty arises in assessing the strength of the case against the appellant; it was, in my view, overwhelming, and would have been so with or without the error in the address.  The trial’s having proceeded to verdict, in those circumstances, did not deprive the appellant of a real chance of acquittal, and there has been no miscarriage of justice.

The application for leave to appeal against sentence

[36] The appellant was aged between 46 and 48 years during the stalking periods, and was 51 years old at sentence.  He had no criminal history, and operated a business supplying machinery.  A number of references was tendered on his behalf; they spoke in particular of his generosity in helping new arrivals to the country in settling in, and of his work for charities.  The trial judge took them into account in sentencing, although he did not accept the defence submission that they established that the offences were completely out of character. 

[37] Each of the complainants had prepared a victim impact statement.  Mrs Briggs described the embarrassment of having friends and work colleagues exposed to the derogatory material contained in the text messages.  She had suffered from stress, anxiety and a sense of physical insecurity; had required counselling and anti‑depressant medication; and generally had lost her self-confidence.  Ms Fogarty said that, living alone with her daughter, she was fearful of the appellant and constantly concerned about leaving her daughter alone in their house.  The calls had interrupted her sleep and the texts had damaged her working relationships.  She had taken a demotion in order to move to another city.

[38] It was necessary, the judge said, to balance a number of considerations: the fact that the appellant had otherwise led an upright existence and would lose his business if he were gaoled; the need for denunciation and deterrence; the fact that the stalking was against more than one victim; and the psychological harm it caused to the victims.  His Honour concluded that actual custody was not required, but that, given the nature of the case, an operational period considerably longer than the period of the sentences themselves was appropriate.

[39] The appellant contended that the operational periods of four years for both sentences were unreasonably long, given that the sentencing judge had also imposed a 10 year restraining order on him, and rendered both sentences manifestly excessive.  As to the sentence imposed on count 1, of 15 months imprisonment fully suspended, it was said that where there were no circumstances of aggravation accompanying the stalking and it was, for the most part, constituted by the making of telephone calls and the sending of text messages, a term of not more than 12 months imprisonment was warranted.  In this regard, reliance was placed on RvWalton.[2]  It was proposed that the term of imprisonment on count 1 should be reduced to 12 months with the operational periods for the sentences on both counts reduced to three years.

[40] In R v Walton, the applicant was 56 years old and had no prior criminal history.  She had separated from her husband after a long marriage.  She stalked a woman with whom her former husband had established a relationship, making incessant abusive and obscene telephone calls to her.  There were three periods of stalking giving rise to three counts, the first of about a month’s duration, the second about three months and the third about one week.  In the second period, the complainant’s 15 year old son received some of the abusive calls.  The applicant was sentenced to six months imprisonment, wholly suspended for an operational period of two years, and a restraining order was made for a period of five years.

[41] The applicant in Walton co-operated with the authorities and entered an early plea of guilty.  The sentencing judge took into account those matters, as well as her good work history, references tendered on her behalf, her medical conditions and the fact that the offending took place against the background of marital breakdown and financial anxiety and stress, complicated by her “on again/off again” relationship with her former husband.  It was submitted on the application for leave to appeal against sentence that a probation order or community service would have been appropriate.  This court observed that the seriousness of the offending, its persistence and the considerations of general deterrence and community denunciation meant that a term of imprisonment was entirely open as a sentencing option.

[42] I do not think that Walton goes any way to support the contention that the applicant’s sentence here was manifestly excessive.  His stalking was malicious, destructive and protracted.  It was calculated not merely to distress and intimidate the complainants, but to destroy their relationships with others; in Mrs Briggs’ case, the friendship she had formed with David, and for both women, their relationships with their work colleagues.  In particular, the intensity of the harassment of Mrs Briggs in her workplace was such that an employer might well have regarded her continued employment as more trouble than it was worth.  Unlike the applicant in Walton, the applicant showed no sign of contrition, nor did he offer any co-operation with the authorities. 

[43] The sentence of 15 months imprisonment was, in my view, a proper and moderate one, having regard to its immediate suspension.  The length of the operational periods was justified by the need, in light of the nature of the appellant’s offending, to ensure personal deterrence for the short-term future.  But even if the operational periods had been inappropriate to the circumstances, they would not have rendered the sentences manifestly excessive.  I would refuse the application for leave to appeal against sentence.

Orders

[44] The orders which should be made are:

(1)Dismiss the appeal against conviction;

(2)Refuse the application for leave to appeal against sentence.

[45] GOTTERSON JA:  I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.

[46] DAUBNEY J:  I respectfully agree with Holmes JA.