R v Conde[2015] QCA 63

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Peter Lyons J’s reasons for dismissing this appeal against conviction.

[2] In R v Hubbuck[1] this Court determined, consistent with KBT v The Queen,[2] that failure to direct the jury as to the need for unanimity on the identity of the two or more occasions said to constitute the course of conduct amounting to unlawful stalking was a misdirection.  The definition of unlawful stalking at the time Hubbuck was decided differed from the present definition in s 359B Criminal Code 1899 (Qld)[3] but the Hubbuck requirement for jury unanimity remains apposite.  The jury must be unanimous as to the identity of either the single act if the conduct is protracted, or the two or more acts (s 359B(b)) particularised as constituting the conduct relied upon by the prosecution as unlawful stalking.

[3] The failure to give the direction as to unanimity in this case was an error of law.  In Hubbuck this Court determined that it was impossible to conclude that the failure to give such a direction did not make a difference to the jury verdict and therefore allowed the appeal, quashed the conviction and ordered a new trial.  Hubbuck, however, was decided well before Weiss v The Queen[4] where Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ considered the application of a statutory provision equivalent to s 668E(1A) Criminal Code, commonly referred to as “the proviso”, which allows this Court, notwithstanding an error of law, to “dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”  Their Honours held that the application of the proviso requires this Court to review the whole of the evidence and to independently assess whether an appellant was proved guilty of the charged offence beyond reasonable doubt.  After undertaking that exercise in this case, despite the absence of the direction as to unanimity, I am persuaded beyond reasonable doubt that the appellant is guilty of unlawful stalking.  It follows that a retrial is unnecessary.[5]

[4] I agree with the order proposed by Peter Lyons J.

[5] MORRISON JA:  I have read the reasons of P Lyons J and agree with those reasons and the order his Honour proposes.  I have also read the draft reasons of McMurdo P, with which I agree.

[6] PETER LYONS J:  After a trial before a jury in the District Court, the appellant was convicted on one count of unlawful stalking, with a circumstance of aggravation, namely the use of violence in connection with one of the acts of which the offence was said to consist.  He was sentenced to a term of imprisonment of 15 months, suspended after seven months, for an operational period of five years.  He has appealed against his conviction.

[7] The appellant has been declared a vexatious litigant under the Vexatious Proceedings Act 2005 (Qld).  At the hearing of this appeal, an order was made, without opposition, that, if leave be necessary, he be granted leave to institute this appeal.

Background

[8] The complainant was the solicitor who represented the appellant’s former wife (or, perhaps, former de facto partner[6]) in an application for a domestic violence order, in which the appellant was the respondent.

[9] The prosecution particularised 59 acts as relevant to the charge.  They ranged over a period from 20 July 2010 to 31 July 2012.  Acts 1, 5-55 and 57-59 were admitted by the appellant, though he denied they constituted the offence.  Many of the acts were the sending of emails to the complainant’s firm.  Some involved some other form of contact between the appellant and the complainant.  The indictment alleged two circumstances of aggravation, each relating to a separate act.  One was violence, and the other was intentionally threatening to use violence.

[10] Act 1 alleged an attempt by the appellant to file a summons upon information for an offence[7] in the Federal Magistrates Court[8] on 20 July 2010.  In fact, the Deputy District Registrar of that Court refused to accept the documents.  The appellant then applied for a review of the Deputy District Registrar’s decision.  At a directions hearing on 6 October 2010, Dowsett J advised the appellant that personal service of the relevant material was required.[9]

[11] Act 2 alleged that on 7 October 2010, the appellant attended the complainant’s professional office to serve what is described as the Federal Magistrates Court material, but would appear to have been the documents relating to the review application.[10]  The particulars allege that the appellant threw the papers in the complainant’s face, the papers hitting the complainant in the face; and the appellant then said that the complainant had been served “You witch”.  The appellant’s case was that he attended at the complainant’s office on that date to serve the documents, but that she in fact threw them at him.[11]  The first circumstance of aggravation, namely violence, related to act 2.

[12] Act 3 alleged that on 25 October 2010 the appellant stood on the road opposite as the complainant was collecting her children from primary school, and that he yelled out “I will get you, I will win.  You are a witch”; and the appellant then followed the complainant and her children as they walked back to her office.  Act 4 alleged that on an unknown date in November 2010 the appellant left, or made arrangements to have left, an envelope under the door of the complainant’s office containing an A4 sheet of paper with the complainant’s name on it, saying that she should stop lying and that she was being watched.  Acts 3 and 4 were denied by the appellant.

[13] Act 5 related to the communication by the appellant on 16 December 2010 of a notice regarding his change of address, treated in the summing up as related to the proceedings in the Federal Court, and required by the rules of that Court.[12]

[14] Act 6 alleged that the appellant posted a copy of a police statement to the complainant, after filing the document in the Federal Magistrates Court on 24 December 2010.

[15] Act 7 alleged that the appellant sent correspondence to the complainant enclosing a copy of his complaint to the Legal Services Commission, and admitting to his being in charge of a website which he said he would use to expose the complainant’s corruption, and that if he were charged or something else happened to him, the complainant would be made responsible.

[16] The remaining acts relate to the sending of emails, save for act 56.  That act alleged that the appellant placed or made arrangements for the placing of a document under the door of the complainant’s business.  The document was a printout of the appellant’s website, including a “witch image” and the complainant’s details.  Written on the printout were the words, “WITCH BURN IN HELL JULIE GILFOYLE DIE”.  Act 56 was the basis of the second alleged circumstance of aggravation.

[17] The jury’s finding of guilty with the aggravating circumstance of actual violence meant that it accepted act 2 as established, but did not so accept act 56.

Code provisions re offence

[18] The offence of unlawful stalking was established by s 359E of the Criminal Code (Code).  However, the expression “unlawful stalking” was defined by s 359B, which was in the following terms:[13]

“359BWhat is unlawful stalking

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;

(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

(d) that—

(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.”

[19] The scope of the definition, and the offence, was limited by s 359D, the terms of which were as follows:

“359DParticular conduct that is not unlawful stalking

Unlawful stalking does not include the following acts—

(a) acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act;

(b) acts done for the purposes of a genuine industrial dispute;

(c) acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest;

(d) reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation;

(e) reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.”

[20] Reference should also be made to the definition of “detriment” in s 359A, as follows:

“In this chapter—

detriment includes the following—

(a) apprehension or fear of violence to, or against property of, the stalked person or another person;

(b) serious mental, psychological or emotional harm;

(c) prevention or hindrance from doing an act a person is lawfully entitled to do;

(d) compulsion to do an act a person is lawfully entitled to abstain from doing.

Examples of paragraph (c) —

A person no longer walks outside the person’s place of residence or employment.

A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places.

Example of paragraph (d) —

A person sells a property the person would not otherwise sell.”

The summing up

[21] The primary Judge referred to the elements of the offence, by reference to the provisions of the Code.  His Honour pointed out that one element was that the conduct was engaged in on any one occasion if the conduct was protracted, or on more than one occasion.[14]  However, his Honour did not instruct the jury that unless they agreed on one occasion, and that the conduct on that occasion was protracted, then they had to agree on the same two occasions on which the conduct was alleged to have occurred.  He referred to the definitions of “circumstances” and “detriment”, and in particular noted that the latter definition was not exhaustive.

[22] His Honour then went on to discuss some of the particularised acts.

[23] The primary Judge had earlier refused an application by Counsel for the appellant to rule that s 359D(a) was relevant to act 1.[15]  In his summing up, his Honour referred to the Crown’s submission that the attempt to file documents in the Federal Magistrates Court was an intimidating and/or harassing act that caused the complainant detriment.  He also referred to the defence submission that the appellant was concerned about injustice, and that in attempting to file the documents, the appellant was not necessarily intending or trying to intimidate or harass the complainant.

[24] With respect to act 2, the primary Judge pointed out that the prosecution did not rely on the filing of the Notice of Motion seeking to review the District Deputy Registrar’s decision as an act of stalking.[16]  His Honour stated the appellant was entitled to challenge that decision, and the prosecution did not rely on the appellant’s attendance at the complainant’s office on 7 October 2010 as itself constituting an act of stalking.  His Honour confirmed the correctness of that position.  He then stated that the prosecution relied on the conduct of the appellant, throwing the documents, with the result that the complainant was hit in the face.  He also referred to the evidence in the appellant’s case to the contrary.[17]  His Honour instructed the jury that they could only convict the appellant of the first circumstance of aggravation if they were satisfied of the evidence relating to this act.[18]

[25] With respect to act 4 and act 56, the primary Judge pointed out that there was only circumstantial evidence to establish the appellant’s involvement in these acts, and reminded them of the usual test to be applied when determining whether a party is guilty of an offence on the basis of such evidence.[19]  With respect to act 56, his Honour instructed the jury that they would need to be satisfied beyond reasonable doubt that the appellant intentionally threatened to use violence against the complainant if they were to be satisfied of the second circumstance of aggravation.[20]  He later instructed them that, in order to be satisfied beyond reasonable doubt of the second circumstance of aggravation, they would need to be satisfied not only that the appellant left, or caused to be left, the relevant document at the complainant’s office, but also that it conveyed an intentional threat to use violence against her.[21]

[26] With respect to act 5, the primary Judge instructed the jury that the step of leaving the Notice of Change of Address at the complainant’s office was a lawful act.[22]

[27] With respect to act 7, the primary Judge pointed out that a person is entitled to complain about the conduct of a legal practitioner to the Legal Services Commission.  He reminded the jury that an act of stalking does not include an act that is authorised by law.[23]

Grounds of appeal

[28] The first ground of appeal was that the conviction was unsafe or unsatisfactory.  The second ground, substituted by leave at the hearing, was that the learned trial Judge erred in ruling that s 359D(a) had no application to act 1 of the particularised acts.

[29] In the course of argument, the appellant was given leave to add a third ground, relating to the summing up.  It was ultimately formulated in these terms:

“The learned trial judge erred in failing to direct the jury that they had to be all agreed as to at least two occasions on which the appellant engaged in one or more s 359B(c) acts, intentionally directed at the complainant.”

Ground 1 – unsafe verdict

[30] For the appellant it was submitted that the jury would have concluded that s 359D(c) and s 359D(e) meant that most of the acts fell outside the scope of the offence.  The result would have been that only acts 2-4, 38, 39, 41, 50 and 58 remained relevant.  The fact that the jury did not accept the prosecution case relating to act 56, suggested that it did not accept the case relating to act 4.  The jury ought not to have accepted the complainant’s evidence about acts 2 and 3 because the complainant was not a reliable witness, and there was no independent evidence of the commission of acts 2 and 3 by the appellant.  The remaining conduct did not amount to unlawful stalking.

[31] For the respondent it was submitted that all of the acts relied upon by the prosecution were capable of being left to the jury as evidence of stalking, and it was open to the jury to find the offence was proven based on those acts.  Even if some of the acts should not have been left to the jury, the balance of the evidence was capable of demonstrating that the verdict was not unreasonable.  The appellant would fail on this ground if any of the admissible evidence is capable of supporting the verdict.  The reliability of the complainant’s evidence was quintessentially a matter to be determined by the jury, and there was nothing to suggest the jury could not reasonably have accepted her evidence.

[32] With respect to act 4, the respondent’s submissions pointed out that it and act 56 were separated in time by about two years.  The jury’s rejection of act 56 as a circumstance of aggravation may have been on the basis that the jury did not consider that the words communicated a threat.  Alternatively some difference between the communications alleged in act 56 and act 4 may account for different verdicts in respect of those acts.

[33] Even if the jury accepted only acts 2, 3 and 4, that was a sufficient basis to support the verdict.  Moreover, it was submitted, the appellant’s emails, for example those referred to in acts 8, 9, 10, 13, 38, 39, 41 and 50, which were admitted by the appellant, could not have been excluded from the scope of the offence by s 359D, and themselves were alone sufficient to demonstrate that a conviction was reasonable.

[34] The respondent’s submission that it was for the jury to assess the evidence of the complainant, and to decide whether to accept or reject it, should be accepted.  There were differences in the circumstances relating to act 4 and act 56.  The respondent’s submission, that the fact that the jury was not satisfied about act 56 does not mean that it was not satisfied about act 4, should also be accepted.

[35] In view of the way act 2 was put to the jury, the only issue for it to determine was whether or not to accept the complainant’s evidence.  Its verdict demonstrates that it did.  Act 3 also depended upon the complainant’s evidence; as did act 4 (at least in part). The appellant has not shown that a verdict based on acts 2, 3 and 4 would be unreasonable.

[36] Section 359D(e) excludes from the scope of the offence, acts which are reasonable conduct engaged in by a person to give information that the person has a legitimate interest in giving.  The emails included serious allegations about the professional conduct and character of the complainant, which were admitted to be without foundation.  In those circumstances it was open to the jury to be satisfied beyond reasonable doubt that the appellant’s conduct in sending the emails to the complainant was not reasonable conduct.  It was also open, so far as allegations of this character were found in the emails, for the jury to conclude that the emails included content which the appellant did not have a legitimate interest in giving.

[37] Section 359D(c) excludes from the scope of the offence, acts done for the purpose of a genuine public dispute or issue, carried on in the public interest.  The general tenor of the emails, and in particular the inclusion of the unfounded allegations against the complainant, meant that it was open to the jury to conclude that they were not sent for the purpose of a genuine public dispute or issue carried on in the public interest.

[38] It follows that, insofar as the verdict was based on the emails, it was one that was open to the jury.

[39] Acts 1, 5, 6 and 7 (along with act 2) were said to be the critical acts for the second ground of appeal.  They will be discussed with reference to this ground.  Otherwise, it follows from what has been said that a verdict based on the remaining acts (save for act 56), or some of them, would not be unreasonable.

Ground 2 – Act 1 and the scope of the offence

[40] Section 359B defines unlawful stalking as conduct satisfying a number of criteria.  One is that it consists of one or more acts of a type identified by s 359B(c).  Section 359D then identifies acts which are not included in the definition of unlawful stalking.  The appellant submitted that act 1 is such an act.

[41] Before dealing with this submission, it is convenient to discuss a matter which arose in the course of oral submissions.  It is whether act 1 caused detriment to the complainant; and if not, whether it was available for the jury to consider act 1 as a relevant act under s 359B.

[42] The complainant gave evidence about the effect which her contact with the appellant, and the material which appeared on his website, had had on her over a period of time.[24]  There was no suggestion that she gave evidence about act 1 having any effect on her.  That gave rise to a question as to whether act 1 was a relevant act, independently of the provisions of s 359D.

[43] For the respondent it was submitted that the offence was intended to deal with the cumulative effect of a series of acts, the first of which might, taken alone, not cause detriment.  Accordingly, it was said, act 1 was relevant because it was part of a course of conduct which caused detriment.

[44] In my view, this submission is supported by the manner in which stalking is defined in s 359B.  It is there described as conduct having four characteristics.  Paragraph (d) identifies a necessary characteristic.  However, the natural reading of the section suggests that this characteristic must apply to the conduct, and not necessarily to each individual act relied upon to constitute the conduct.  The natural reading is reflected in the way the section is set out.  The singular verb “causes” in paragraph (d) more naturally refers, as a matter of grammar, to “conduct”, than to “1 or more acts” in paragraph (c), though this is not a particularly strong guide.

[45] In many cases, it is likely that the characteristic identified in paragraph (d), whether it relates to an apprehension or fear of violence, or to detriment, will reflect the cumulative effect of a series of acts.  It is by no means difficult to envisage a situation where a series of acts has either of the effects described in s 359B(d), but it is not possible to ascribe that effect to any particular act, taken in isolation.  There is no logical reason to think that the legislature would intend to exclude such conduct from the scope of the offence, it being inherently similar to conduct constituted by a series of acts each of which has one of the effects identified in s 359B(d).  Section 359B(c) confirms that the focus of the section is on conduct (either protracted, or occurring on more than one occasion), rather than on individual acts.  Notwithstanding that s 359B identifies conduct which constitutes an offence, it seems to me that the considerations just mentioned make it sufficiently clear that the offence is intended to include a course of conduct consisting of more than one of the acts identified in s 359B(c), even where it is not established that each act, taken in isolation, would cause or caused the relevant fear, apprehension or detriment.

[46] Accordingly, I consider the natural reading of s 359B should be adopted, and the submission made on behalf of the respondent should be accepted.

[47] No submission was made that act 1 otherwise does not come within the scope of s 359B.  It follows that act 1, as alleged in the particulars, was a potentially relevant act, notwithstanding that (considered in isolation) it might not satisfy either of the descriptions found in s 359B(d).

[48] For the appellant it was submitted that the acceptance of act 1 as an act which might constitute unlawful stalking would interfere with a fundamental right, namely access to the Courts; and that accordingly, by reference to Lee v New South Wales Crime Commission[25] (Lee), an intention to interfere with such a right should be expressed “with irresistible clearness”.  Reference was also made to s 359D(a).  It was submitted that filing of the documents was authorised by the Federal Court Rules, and was the exercise of a fundamental right.  It was also submitted that the primary Judge had erred, in the application of this paragraph, by giving consideration to the content of the documents which the appellant had attempted to file.

[49] For the respondent it was submitted that the appellant’s Counsel had, at trial, made a forensic decision not to rely on s 359D(a), and accordingly the primary Judge’s ruling in relation to this act was the result of a legitimate forensic choice made by the appellant’s Counsel at trial.  Moreover, the particulars were not intended to provide a full description; rather to point to the facts underlying the description in the particulars.

[50] The respondent also submitted that reference to the principle of legality, stated in Lee, was misplaced.  The offence was itself defined in s 359B, and a consideration of s 359D only arises in respect of acts which come within the earlier section.

[51] In my view, it is correct to say that the discussion must start with s 359B.  The section is clearly, and no doubt intentionally, widely drawn.  Thus, it encompasses any approach to a person, or contact with a person, which causes detriment.  The serving of Court documents, or the communication of distressing news, may well amount to conduct which satisfies the provisions of this section, based on its language.  The intention that it have a wide operation is also apparent from the inclusion of the words “or a similar” in s 359B(c) when identifying relevant types of conduct.  That s 359B is intended to have a wide field of operation is also apparent from s 359C.  There can be little doubt that the provisions are intended to affect the exercise of a person’s right to be in a public place, or on property in which the person has an interest, in certain circumstances, even to the point where the right might not be exercised at all.  In my view it is clear that these provisions demonstrate with sufficient clarity an intention to interfere with fundamental rights, if the conduct otherwise satisfies the requirements of s 359B (subject to s 359D).

[52] Assuming (without necessarily accepting) that the filing of documents in the Federal Court in accordance with its rules would be an act within s 359D(a),[26] it is necessary to consider whether act 1 comes within that provision.

[53] Order 4, rule 1 of the Federal Court Rules provides that, except as otherwise provided in those rules, all proceedings in the Court’s original jurisdiction are to be commenced by filing an application.  Order 49, rule 1 provides that a prosecution for an offence shall be commenced by summons upon information.  It therefore seems to me that this rule has “otherwise provided” the mode of commencing criminal proceedings, for the purpose of order 4, rule 1.  However, it would be surprising if order 49, rule 1 were intended to authorise the commencement of proceedings for the prosecution of an offence which is not within the jurisdiction of the Federal Court.  That result becomes particularly unlikely when this rule is read with order 4, rule 1.  In my view, therefore, it could not be said that the attempt to file the summons upon information was authorised by those rules, the alleged offences not being within that Court’s jurisdiction.  No other basis was identified for the submission that the attempt came within s 359D(a).  Accordingly I am satisfied that it should not have been excluded from the acts available for the jury’s consideration, by reference to s 359D(a).

[54] It will be apparent that, to determine whether an attempt was made to file documents in the Federal Court in respect of proceedings within its jurisdiction, regard may be had to the content of the documents.  In that context, it was not inappropriate to consider them, in determining whether act 1 should have been excluded from the jury’s consideration.

[55] In those circumstances, it becomes unnecessary to decide whether the Federal Court Rules authorise the filing of proceedings seeking relief which is within that Court’s jurisdiction, when the person claiming relief does not have grounds to do so.  This does not seem to me to be an appropriate occasion on which to determine that question.

[56] In my view, the appellant does not succeed on ground 2.

Ground 3 – inadequate direction re: agreement on acts

[57] In supplementary written submissions, the appellant supported this ground by reference to the decision of the High Court in KBT v The Queen[27] (KBT) and R v Hubbuck[28] (Hubbuck) (referred to with approval in R v Carlile).[29]

[58] It was submitted in the respondent’s supplementary outline that, as the offence of stalking is at present defined in the Criminal Code, it is essentially a “course of conduct” type of offence, with the consequence that it is unnecessary for the jury to agree about particular acts.  KBT turned on the fact that it was not a “course of conduct” type of offence.  It would seem to follow that the respondents sought to distinguish Hubbuck on the basis of changes in the legislation relating to this offence in the Code, subsequent to Hubbuck.  The respondent also relied on the decision of the Victorian Court of Appeal in R v Hoang[30] (Hoang), where that Court held that it was not necessary for the trial judge to direct the jury that they must agree on particular acts in order to convict a person of the offence of stalking under s 21A of the Crimes Act 1958 (Vic).

[59] Alternatively, the respondent submitted that the provisions of s 668E(1A) of the Criminal Code could be applied to maintain the conviction, the vast majority of the acts having been admitted by the appellant.

[60] In KBT, the appellant was convicted of maintaining an unlawful sexual relationship with a child contrary to s 229B(1) of the Criminal Code.  Section 229B(1) of the Code made it an offence to maintain an “unlawful relationship of a sexual nature with a child under the ag of 16 years”.[31]  Section 229B(1A) provided, so far as is relevant,

“A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child … on 3 or more occasions and 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.”

[61] The critical passage found in the joint judgment of four members of the Court (Brennan CJ, Toohey, Gaudron and Gummow JJ) in KBT is the following:

“The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs, or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that 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. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.”[32]

[62] The provisions of the Criminal Code relating to the offence of stalking were different at the time relevant for Hubbuck’s case.  In particular, s 359A(2) defined unlawful stalking as “conduct” which satisfied four conditions, one of which was

“(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);”.[33]

[63] The term “concerning act” was also defined, but it is unnecessary to make reference to this definition.  In Hubbuck, Pincus JA (with whom McPherson JA and Moynihan J agreed) held that the decision in KBT was indistinguishable.  Indeed, Pincus JA considered the argument stronger under the provisions of s 359A of the Code, because the section “seems to make the offence consist in the doing of a concerning act on at least two separate occasions” (emphasis in original).

[64] Section 21A(2) of the Crimes Act, considered in Hoang, identified stalking as “a course of conduct which includes any of the following”, followed by a description of conduct which bears some similarity to the acts identified in s 359B(c)(i) of the Code; and continues by specifying an intention to cause harm or to arouse apprehension or fear.  In Hoang, Neave JA (with whom Maxwell P and Eames JA agreed) distinguished KBT on the basis that s 21A(2) defined the offence as constituted by “a course of conduct”.[34]  His Honour noted that the joint judgment in KBT identified the actus reus as the doing of a particular act, which was an offence of a sexual nature, on three separate occasions.[35]

[65] In my view, the definition of unlawful stalking now found in s 359B of the Code is in language which is not materially different from that considered in Hubbuck.  Relevantly it is, if anything, now clearer that an element of the offence is “conduct … consisting of …” one or more acts of a particular kind.  Like Pincus JA, I consider that the fact that the conduct must consist of the acts specified in s 359B(c) has the consequence that the actus reus is, in reality, the acts so identified.  The language used in s 21A(2) of the Victorian Crimes Act is different.

[66] There is nothing in the explanatory notes for the amendments which introduced s 359B in its current form, to indicate an intention to alter the Code in a way that is at present material.  While the differences in the directions in the Bench Book are of interest, they do not lead me to reach a different conclusion.

[67] In light of KBT and Hubbuck, it seems to me that, in order to convict, the members of the jury must (amongst other things) agree, as a minimum, that the defendant carried out a particular act, being an act that satisfies that the description found in s 359B(c), and they must also agree that that act was protracted; or alternatively they must agree that the defendant carried out two acts satisfying the description found in s 359B(c), and if more than two such acts are alleged then they must agree about the same two acts.  It follows that the directions given in the present case were inadequate.

[68] It is then necessary to consider what is commonly referred to as the proviso found in s 668E(1A) of the Code.  Critically it provides that this Court may, notwithstanding findings in favour of an appellant, “dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”  This language reflects what is sometimes described as the “common form” of criminal appeal statutes in this country.[36]  Recent decisions, particularly those of the High Court, seem to me to establish the following propositions about such a provision, relevant for the determination of this appeal:

1.The words of the statute ultimately govern the task an appellate Court is called upon to perform, rather than subsequent judicial expositions of the meaning of the statute.[37]

2.The appellate Court must decide for itself whether or not a substantial miscarriage of justice has actually occurred.[38]

3.There are cases in which it would be possible for such a Court to conclude that the error established by the appellant would or should have had no significance in determining the verdict against the appellant.[39]

4.In considering the application of the proviso, the appellate Court must bear in mind that the criminal standard of proof applies, namely, that guilt must be established beyond reasonable doubt.[40]

5.The appellate Court’s task is an objective task, to be performed with whatever advantages and disadvantages exist when deciding an appeal on the record of a trial; it is not an exercise in speculation or prediction.[41]

6.Regard must be had to the fact that the record includes the jury’s guilty verdict;[42] though the significance of the verdict must be assessed, paying proper regard to what issues the jury were directed to determine in order to arrive at a verdict of guilt.[43]

[69] Some further observations may be made, by reference to the High Court’s decision in Baini v The Queen.[44] (Baini), about the operation of the proviso.  Thus, “the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open”[45] (emphasis in original).  Further, in many cases where a question arises as to whether there has been a substantial miscarriage of justice, and an error in the trial has been established, an appellate Court will not be in a position to decide whether the appellant must have been convicted if the error had not been made, because of the “natural limitations” to which such a Court is subject.[46]  Although Baini was concerned with a somewhat different statutory provision, the observations just referred to were made when considering the possibility that an appellate Court might conclude that there has not been a substantial miscarriage of justice.[47]

[70] The appellant submitted that the proviso should not be applied because the misdirection was a fundamental error, which rendered it inapplicable, relying on R v McNamara.[48]  The respondent submitted, by reference to Baiada,[49] that, in determining whether the proviso should be applied, it is incorrect to attempt to categorise an error below as a “fundamental defect”.

[71] McNamara[50] held that where an error is identified as “fundamental” there is no room for the application of the proviso, relying on Wilde v The Queen[51] (Wilde).  It is correct to say that in Baiada the judgment of the Court stated[52] that “it is neither possible nor useful to attempt to argue about the application of the proviso by reference to some supposed category of ‘fundamental defects’ in a trial”.  Nevertheless, as Macfarlane JA observed in TWL v R[53] (RA Hulme and Garling JJ agreeing) , the proviso could seldom be applied in circumstances where “the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered”.[54]

[72] Subsequent to Baiada, in Lee v The Queen[55] the judgment of the Court referred with apparent approval to the passage from Wilde relied on in McNamara, and to other judgments to similar effect.[56]  However, Lee was not expressly concerned with the effect of the proviso.  In my respectful opinion, on the current state of the authorities, the correct approach is that taken by Macfarlane JA in TWL,[57] though his Honour was not purporting to lay down a rule of universal application.

[73] It may be accepted that the jury’s verdict demonstrated that they accepted the complainant’s evidence in relation to act 2.  In particular they accepted that the appellant used violence to the complainant on that occasion.

[74] As the respondent’s submissions in another context pointed out, there may be a number of explanations for the fact that the jury did not accept the second circumstance of aggravation.  Whatever the explanation, that aspect of the jury’s verdict does not support the application of the proviso.

[75] At the trial, it was in issue whether the appellant engaged in the conduct particularised in acts 3 and 4.  It seems to me that this Court is not in a position to reach a firm view about this issue, and accordingly this conduct cannot be relied upon for the purpose of the application of the proviso.

[76] The appellant admitted at the trial that he sent the documents referred to in acts 5 to 55 and 57 to 59 and that the documents had been received by the complainant.[58]  It is necessary to consider whether those acts, together with act 2, must have constituted conduct intentionally directed at the complainant; and satisfying the description in s 359B(d).  There can be no doubt about the former.

[77] It might first be observed that paragraph (d) identifies alternatives, one of which is hypothetical (“would cause”), and one of which describes an actual effect (“causes”).  In particularising a charge, it would be sufficient to allege that the conduct as a whole satisfied either alternative.  However the particulars in this case related each act to the alternatives in paragraph (d).  No complaint was made about this; and it seems to me to be a satisfactory method of particularisation.

[78] Acts 5 to 55 and 57 to 59 were particularised generally as causing the complainant detriment.  In view of the way the case was particularised, if a jury were to convict only on the basis of at least two of these acts, then it seems to me it could only convict if it were satisfied that the conduct consisting of those acts caused detriment, reasonably arising in the circumstances, to the complainant.

[79] However the particulars for act 2 included the following, “…an act of violence that would cause complainant an apprehension of violence and/or cause the complainant detriment”.

[80] With respect to detriment, the complainant gave evidence that after the conduct constituting act 2, she held a staff meeting to discuss security, installed a security camera outside the premises, installed extra chains for the front door of the premises, and made the garage door at the rear of the premises secure.  Staff were issued with a picture of the appellant and the occupiers of adjoining premises were advised about him.  The complainant also stated that this conduct affected her personally because it was invasive and it made her fear for herself and others about what he had done and what he might possibly do.  At the time she had been consulting a psychiatrist as a result of her earlier experience as a police officer, and she was given coping strategies because of this event.[59]

[81] With respect to act 41, the complainant gave evidence that it made her worried, concerned and upset, physically making her feel sick every time she received something from the appellant.[60]

[82] After the complainant had given evidence in relation to most of the acts she was asked “how all of this” had affected her.  She gave evidence about her dealings with her four children, and changes relating to her legal practice.[61]  She said she spent about 30 hours attempting to get Google not to identify the appellant’s website on its search engine.[62]  She also gave evidence of the loss of a client, and her estimate of the resultant loss in fees.

[83] Much of the complainant’s evidence about detriment was the subject of substantial challenge in cross-examination.

[84] It should be acknowledged that the prosecution case in relation to detriment was strong.  The complainant’s evidence about her reactions to some of the material communicated by email is unsurprising, although a very substantial proportion of that material could not be said to have been related to her.  The evidence about economic loss was plainly contentious.  Notwithstanding the strength of the Crown case, it seems to me that the complainant’s evidence of her reaction to the email communications would not inevitably have led a jury to conclude that she suffered detriment as a result of it.

[85] However the jury’s acceptance of act 2 carries with it its acceptance of the complainant’s version of what then happened, there being only two versions.  The verdict accepted, as noted previously, that the appellant used violence against the complainant on that occasion.  Detriment is defined to include the apprehension of fear of violence to the stalked person.  It is difficult to think that detriment does not extend to the experience of violence.  Moreover, on the complainant’s version there must have been a period, albeit very brief, when she apprehended violence.  In my view, the jury’s verdict carries with it inevitably a finding that, from act 2, the complainant suffered detriment.  Since the jury accepted the complainant’s evidence about act 2 notwithstanding that it was contradicted by the appellant, there is much to be said for the proposition that they also accepted her uncontradicted evidence about the effect of the appellant’s conduct on this occasion, which showed detriment.  However it is unnecessary to reach a firm conclusion about this.

[86] In any event, the appellant’s conduct on this occasion, as accepted by the jury, was such that it “would cause” the complainant an apprehension or fear, reasonably arising, of violence to her.  That conclusion is consistent with the particularisation of act 2.

[87] There was no suggestion that act 2 could not be considered along with the admitted acts as constituting conduct for the purpose of the offence.  If some connexion be necessary beyond the fact that the acts were directed to the complainant, it is that they all arise out of the appellant’s reaction to the fact that the complainant represented his ex-wife in proceedings against him.  Act 2 and the other admitted acts may accordingly be regarded together for determining whether the tests set out in s 359B are satisfied.  It follows that the appellant’s conduct satisfied both tests in s 359B(d).

[88] In all of the circumstances, it seems to me that, notwithstanding the defect in the direction given to the jury, this is a case where it can be said that the defect did not cause a substantial miscarriage of justice.  The case is unusual, primarily because of the jury’s finding on the circumstance of aggravation; and because of the extensive admissions made by the appellant.

Conclusion

[89] I would dismiss the appeal.