McNicol v Queensland Police Service
[2016] QCA 102
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- Unreported Judgment
- Appeal Determined (QCA)
- McNicol v Queensland Police Service[2016] QCA 102
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McNicol v Queensland Police Service[2016] QCA 102
McNicol v Queensland Police Service[2016] QCA 102
SUPREME COURT OF QUEENSLAND
CITATION: | McNicol v Queensland Police Service [2016] QCA 102 |
PARTIES: | McNICOL, Dean Stuart |
FILE NO: | CA No 45 of 2015 DC No 58 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2015] QDC 39 |
DELIVERED ON: | 22 April 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 April 2016 |
JUDGES: | Morrison and Philippides JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal is refused. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the applicant was convicted in 2014 of unlawfully stalking a female gym instructor – where the conviction came after a nine day trial in the Magistrates Court – where the learned magistrate did not accept the applicant’s version of events and accepted the evidence of the prosecution – where the applicant was sentenced to eight months imprisonment, fully suspended for an operational period of two years with pre-sentence custody taken into account and a restraining order made – where the applicant appealed to the District Court of Queensland– where the appeal was dismissed due to the applicant’s inability to establish any legal, factual or discretionary error on behalf of the learned magistrate – where the applicant seeks leave to appeal from that decision pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether an appeal is necessary to correct a substantial injustice – whether there is a reasonable argument that there is an error to be corrected Criminal Code (Qld), s 359A, s 359B, s 359C, s 359F District Court of Queensland Act 1967 (Qld), s 118(3) Evidence Act 1977 (Qld), s 21M, s 21N Justices Act 1886 (Qld), s 222 Berry v Commissioner of Police [2015] 1 Qd R 388; [2014] QCA 238, cited Fitness First Australia Pty Ltd v McNicol [2012] QSC 296, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Pickering v McArthur [2005] QCA 294, cited R v Davies [2004] QDC 279, distinguished White v Commissioner of Police [2014] QCA 121, cited |
COUNSEL: | The applicant appeared on his own behalf V A Loury for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
[1] MORRISON JA: On 10 February 2014 Mr McNicol was convicted of unlawfully stalking a young, female gym instructor between 1 January 2012 and 18 January 2013.
[2] The conviction came after a nine day trial in the Magistrates Court. Mr McNicol represented himself during the trial, and gave evidence in his defence. In his evidence some of the conduct particularised in the stalking charge was admitted by Mr McNicol, though he contended it did not constitute stalking. Other conduct was denied, and he put forward a version of events which contradicted the evidence of prosecution witnesses, particularly that of the complainant.
[3] The learned magistrate did not believe Mr McNicol’s version of events, finding him to be a witness lacking credit. The evidence of the prosecution witnesses was accepted by the learned magistrate, in each case the witness being found to be a witness of credit.
[4] Mr McNicol was sentenced to eight months’ imprisonment, fully suspended for an operational period of two years. The sentencing magistrate took into account the 131 days that Mr McNicol had served in pre-sentence custody. A restraining order was made.
[5] Mr McNicol appealed to the District Court under s 222 of the Justices Act 1886 (Qld). That appeal was dismissed on 27 February 2015.
[6] Mr McNicol seeks leave to appeal from that decision pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). The issues raised are whether:[1]
(a) an appeal is necessary to correct a substantial injustice; and
(b) there is a reasonable argument that there is an error to be corrected.
Nature of the proposed appeal
[7] As previously mentioned, Mr McNicol’s appeal to the District Court was under s 222 of the Justices Act 1886 (Qld). Any appeal to this Court must be under s 118(3) of the District Court of Queensland Act 1967 (Qld). There are differences between the two, as explained in White v Commissioner of Police:[2]
“There is therefore considerable difference between the nature of the appeal that was available to the applicant from the Magistrates Court to the District Court and that which he seeks to bring from the District Court to this Court. In the appeal to the District Court, s 223 of the Justices Act provides for a rehearing on the evidence given at trial, and any new evidence adduced by leave. That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.[3] By contrast, an appeal to this Court from the District Court seeking to review the decision of the District Court in its appellate jurisdiction, may only be made with leave of this Court, and is not an appeal by way of hearing, but a strict appeal where error of law must be demonstrated.[4]”
[8] Therefore, in order to demonstrate prospects of success in the proposed appeal Mr McNicol must identify error of law in the decision of the District Court.
Suggested grounds of appeal
[9] Mr McNicol has set out the basis of his application in his outline. It is that the learned District Court judge erred in law, in the sense of an error of law as defined in House v The King,[5] in that his Honour should have come to a conclusion contrary to the one he did on the 13 issues present to him at the hearing. Those issues are described as the grounds of appeal:
(a) ground 1: Mr McNicol should not have been permitted to cross-examine the complainant as she was a protected witness under s 21M of the Evidence Act 1977 (Qld);
(b) ground 2: the magistrate was wrong to grant leave to the prosecution to tender a DVD of the police interview with Mr McNicol, three days into the trial;
(c) grounds 3 and 5: the magistrate was wrong to rule that certain electronic communications (emails and Facebook messages) constituted acts of stalking when the complainant said she did not see them; in this respect R v Davies[6] was relied upon;
(d) ground 4: the magistrate erred in finding that four contacts between Mr McNicol and the complainant in a shopping centre were acts of stalking;
(e) grounds 6 and 7: the magistrate erred in excluding certain evidence, namely a decision of the Supreme Court and some media articles;
(f) ground 8: the magistrate erred in finding that the complainant suffered fear, apprehension and emotional distress as a result of Mr McNicol’s conduct;
(g) ground 9: certain conditions of the restraining order were inappropriate;
(h) ground 10: the magistrate did not take into account the time served in pre-sentence custody;
(i) ground 11: the restraining order was made before Mr McNicol was found guilty;
(j) ground 12: the magistrate wrongly prevented Mr McNicol from continuing his questions of the witness, Ms Griffiths; and
(k) ground 13: there was insufficient evidence to support a guilty verdict.
[10] The respondent points out, correctly, that all of the issues raised in the grounds above were raised in much the same terms before the learned District Court judge.
Approach of the learned District Court judge
[11] The learned primary judge noted that the appeal to the District Court was against conviction, sentence and the restraining order. His Honour also noted the finding of the magistrate that the prosecution witnesses had been accepted, and that the combined evidence they gave was corroborative in nature.[7]
[12] The learned primary judge summarised the evidence of the prosecution witnesses, and the citations that accompany that summary reveal that his Honour had been through the trial transcript thoroughly.[8] That summary included considerable detail of Mr McNicol’s conduct, and the complainant’s evidence of the impact the conduct had on her, including: feeling intimidated and uncomfortable; having to alter arrangements so that she was accompanied by others when going to and from work; crying; anxiety; being fearful, upset, stressed and scared; shaking; being “really frightened” and “terrified”; freezing and bursting into tears; being offered security to escort her to and from her car; and “the complainant was fearing the worst about what [Mr McNicol] might do to her, had been mentally and emotionally affected, and had many sleepless nights of worry”.
[13] The learned primary judge also summarised Mr McNicol’s evidence,[9] and set out the magistrate’s findings concerning his evidence.[10] That included the detailed reasons for finding that Mr McNicol was not a witness of credit. His Honour then recorded Mr McNicol’s submission that the magistrate ought not to have accepted the prosecution witnesses, and said:[11]
“I am, of course, mindful of the advantages the learned magistrate had in hearing the evidence and observing the witnesses. Having read the transcript of the evidence, I can find no sufficient basis to disturb his Honour’s findings with respect to the credibility and reliability of the witnesses.”
[14] As to the conduct of the appeal, the learned primary judge noted that the hearing was adjourned to permit Mr McNicol to reconsider his grounds of appeal. A new outline was filed by him, and he confirmed that everything in the previous outline could be disregarded.[12]
[15] I pause to note that the significance of this fact is that Mr McNicol abandoned any argument that he should not have been permitted to cross-examine the complainant. That has an obvious impact on ground 1 of the proposed appeal. The respondent contends that having abandoned the point on the appeal to the District Court, Mr McNicol cannot be heard to agitate it now.
[16] The learned primary judge then dealt with each ground of appeal.
[17] Ground 1 below was not the same as ground 1 of the proposed appeal. It was a contention that Mr McNicol’s conduct in protesting outside the Fitness First gym, where the complainant worked, was not conduct directed at her but at the gym, and therefore not acts of stalking. The learned primary judge accepted that contention.[13] It is not part of the grounds of the proposed appeal.
[18] The grounds below were the same as they were advanced on this application: see paragraph [9] above. Apart from grounds 3 and 5, which were dealt with together, all other grounds were dealt with individually. In each case the learned primary judge analysed the contentions, examined the relevant evidence, and concluded that there was no merit in the point.
[19] In the course of doing so, it is plain that the learned primary judge conducted a rehearing on the evidence given at trial,[14] that is, a review of the record of the proceedings below. Mr McNicol was unable to establish any legal, factual or discretionary error, apart from the ground concerning the protest outside the gym.
Discussion
[20] Mr McNicol’s outline advanced essentially the same contentions as were advanced before the learned primary judge. In many cases the submission is a truncated one, simply saying: “My argument in this appeal is that the District Court Judge erred and should have found this ground in my favour based on the evidence before them and the arguments by the Appellant in the District Court appeal”.[15]
[21] There were additional contentions advanced, varying from ground to ground. However, the thrust was the same, namely that the learned magistrate should not have accepted the prosecution evidence, and that the learned primary judge should have reached conclusions contrary to those that he did.
Ground 1: cross-examination of the complainant
[22] As mentioned above in paragraph [15], Mr McNicol abandoned this point prior to the appeal being heard in the District Court. That is sufficient to refuse leave to raise it now. Mr McNicol attempted to contend that he thought that the point was still alive in the District Court, but that cannot be accepted in light of his express response to the learned primary judge, that anything prior to the new outline should be disregarded.
[23] In any event there is no merit in the point. Sections 21M and 21N of the Evidence Act 1977 (Qld) are the provisions which would prevent a protected witness from being cross-examined by the accused. However, they do not apply to summary proceedings: s 21L of the Act. Mr McNicol’s trial was a summary proceeding. There being no statutory prohibition on Mr McNicol (a self-represented accused) cross-examining the complainant, and no application for such an order, the learned magistrate did not err in not stopping Mr McNicol from cross-examining the complainant.
Ground 2: wrongful admission of the DVD recording of the police interview
[24] As developed orally this point came down to the contentions that the DVD should have been disclosed in the original brief of evidence, there was some sort of unfairness because documents were identified by being held up to the camera, and unfairness because Mr McNicol had already cross-examined witnesses before the DVD was produced.
[25] There is no merit in this point. As the learned primary judge observed, the DVD was simply the visual counterpart of the audio recording of the interview, which Mr McNicol had. There was no suggestion from him that the audio recording did not correctly reflect what had been said.
[26] Further, Mr McNicol had participated in the very interview which was recorded on the DVD. Finally, the objections voiced by Mr McNicol as to the veracity of the DVD, and the documents that were shown in it, were correctly put aside given that Mr McNicol declined the opportunity to view the DVD’s before they were played and ruled upon.[16]
[27] As for the documents, they were identified in the brief of evidence, supplied to Mr McNicol, and subsequently tendered individually in any event.[17] It is difficult to see how having a copy of the video record of his own interview, when he had an audio copy, could have affected the way he cross-examined witnesses who were obviously not part of the interview. In any event there was no request to have anyone recalled.
[28] I respectfully agree with the learned primary judge[18] that the circumstances of the late disclosure of the DVD made no difference to the verdict, and did not result in a miscarriage of justice.
Grounds 3 and 5: emails and Facebook messages not seen by the complainant
[29] Mr McNicol’s contention here is that because the complainant did not see the emails or the Facebook messages they cannot constitute acts of stalking. Further, that even if she was told of the emails and the messages, there was no admissible evidence that she knew of their contents because any evidence showing the contents were conveyed to her would be hearsay.[19]
[30] In oral argument before this Court, Mr McNicol sought to raise a further contention, that there was no proof that they fell within the relevant time period for the acts of stalking. This was not a point raised below.
[31] The learned primary judge reviewed the evidence established that warranted the finding that Mr McNicol sent them.[20] I agree that the evidence was sufficient to enable that inference to be safely drawn.
[32] The learned primary judge then dealt with the finding, and the evidence on which it was based, that the emails and messages constituted acts of stalking.[21] His Honour held that even if the complainant did not see the emails and messages herself, there was sufficient evidence to establish that she was aware of their contents. That arose because: (i) in so far as the emails and messages were directed to the complainant’s employers, because they were designed to disparage the complainant it was likely that the subject matter had been raised with the complainant;[22] (ii) there was evidence from a gym manager who had received such messages, that he met the complainant and “explained to her what kind of information we were receiving”;[23] (iii) a second gym manager told the complainant of the emails and messages;[24] and (iv) the emails and messages prompted the complainant to go to the police.[25]
[33] The learned primary judge concluded that the complainant “was obviously aware of the fact that communications were made and their gist”.[26] Having reviewed the evidence myself, I entirely agree with that finding. It amply supports the finding made by the magistrate, and by the learned primary judge, that the emails and Facebook messages were correctly included in the acts of stalking.
[34] Given that the point as to timing (referred to in paragraph [30] above), was not raised below I would not permit it to be argued. In any event, the evidence referred to above also supports the finding (made in paragraph [48] of the Reasons below) that they were “part and parcel of a course of conduct directed at the complainant”, in effect a finding that the communications occurred during the period of the alleged stalking.
[35] Mr McNicol relied upon R v Davies.[27] In that case the complainants were secretly recorded on a video camera, designed to be unknown to them. It was held that because the complainants did not know of the conduct it could not be stalking. The case is distinguishable because there the acts did not come to the attention of the victim, whereas here they did.
[36] No error has been demonstrated in respect of this ground.
Ground 4: the shopping centre incidents
[37] Mr McNicol’s contention on this point was that the finding could not be sustained on a review of the whole of the evidence. His contention was that his evidence should have been accepted, and the finding that the first encounter caused distress to the complainant was unsafe.
[38] The learned primary judge referred to the fact that Mr McNicol’s account had been generally rejected.[28] He had denied all contact in the shopping centre except the first encounter in a store called Cotton On, and in respect of that contact it was his version the complainant approached him, rather than the other way round. Even if that were so, the learned primary judge reasoned, Mr McNicol’s conduct in speaking to the complainant, seen in the light of the previous conduct at the gym, and his walking past the shop and looking in, was enough to infer that the conduct was intentionally directed at the complainant.[29]
[39] No error has been demonstrated in the way the learned primary judge dealt with these issues. Having reviewed the evidence I am in agreement with the finding by the learned primary judge. There was an abundance of evidence to sustain the findings by the magistrate and by the learned primary judge on this point.
Grounds 6 and 7: rejection of media articles and the Supreme Court judgment
[40] There is no merit in this point. Mr McNicol complains that the learned magistrate ruled that media articles were inadmissible as being hearsay. That was plainly correct. The articles could not be tendered as truth of their contents absent the authors being called as witnesses, and they were not.
[41] Further, on the appeal to the District Court the contention related only to one such article, and, as the learned primary judge found, it was tendered and became exhibit 19.[30]
[42] Mr McNicol also sought to tender a judgment of McMurdo J in Fitness First Australia Pty Ltd v McNicol.[31] The learned magistrate refused on the basis that any findings by McMurdo J were merely the opinion of that judge about the evidence before that court, in different proceedings on a civil dispute, where the onus of proof was on a civil standard.
[43] As the learned primary judge held, that conclusion was plainly correct.[32] The proceedings before McMurdo J concerned an application by Fitness First for injunctive relief for breach of a settlement agreement reached between Mr McNicol and Fitness First over the cancellation of Mr McNicol’s membership of that gym. The evidence in that proceeding, and the findings by McMurdo J, could not be admissible to prove or disprove facts in the criminal proceedings against Mr McNicol. All of the issues in the proceedings before the Magistrates Court were the subject of evidence in those proceedings.
[44] Further, to the extent that one witness, Ms Whale, had apparently given evidence in the Supreme Court proceedings different from that which she gave in Mr McNicol’s trial, Mr McNicol took advantage of that by cross-examining her in the inconsistency.[33]
Ground 8: error as to whether the complainant suffered fear, apprehension and emotional distress
[45] As developed orally this point focussed on what Mr McNicol said was the lack of any independent or credible evidence of the detriment sustained by the complainant. By this he was referring to the lack of evidence that the complainant sought medical assistance of some sort, and that the complainant’s mother did not refer to taking specific steps to remedy the distress felt by the complainant.
[46] The learned primary judge reviewed the evidence at the trial, in light of the relevant statutory provisions, s 359A, s 359B and s 359C of the Criminal Code 1899.[34] No error has been demonstrated in his Honour’s approach or analysis of the issues in this point.
[47] The learned primary judge found, on a review of the evidence, that the learned magistrate’s findings were justified.
[48] The learned magistrate’s findings were set out in the Reasons below, at paragraph [80]. They were findings that the complainant did, in fact, cause fear, apprehension and emotional distress, and it was reasonable that she would suffer those effects. There were two factual findings relevant to those issues: (i) that Mr McNicol’s emails to the gym employers caused detriment because their volume and content, combined with the threat of legal proceedings, caused the employers to question the complainant’s employability and continued employment; and (ii) Mr McNicol’s personal approaches caused the complainant to fear him, and have genuine apprehension as to his contact with her.
[49] Thus, the learned primary judge concluded, rightly in my respectful view, that the magistrate’s finding was that s 359B(d)(ii) was engaged. That defines unlawful stalking as (relevantly) conduct that “causes detriment, reasonably arising in all the circumstances, to the stalked person …”.
[50] Mr McNicol’s contention to the contrary on appeal was based on the fact that the complainant had not sought medical or other treatment, and there was no expert evidence to verify the impact on her.[35] As the learned primary judge pointed out, the absence of expert evidence does not preclude a finding that s 359B(d)(ii) is engaged.
[51] Further, there was evidence from the complainant from which it could be inferred, and was inferred,[36] that her fear and apprehension was a fear and apprehension of violence. The learned primary judge referred to that evidence, which was:[37]
“I don’t know, I always think worst case scenario in my head. You know, … if he’s completely turned against me now and … wants people to fire me and wants everyone to hate me, is the vibe I got, if I see him, what’s he going to do? Is he going to go off at me, is he going to scream at me, is he going to try to do something to me, … I didn’t know, but I was just fearing the worst.”
[52] In cross-examination the complainant said she feared actual violence.[38]
[53] I respectfully agree that the inference of fear or apprehension of violence was open to be drawn from that evidence.
[54] The evidence from the complainant, her mother and boyfriend, if accepted, established the relevant detriment. That evidence was accepted and no reason has been shown as to why the learned primary judge should have taken a different view.
[55] There is no merit in this point.
Ground 9: certain conditions of the restraining order were inappropriate
[56] Mr McNicol’s complaint on his appeal to the District Court was directed at three conditions that had been imposed in the restraining order:
(a) Condition 3: You are not to produce any material referring directly or indirectly to [the complainant] on any communication or electronic communication device or do any similar act against [the complainant];
(b) Condition 4: You are not to leave offensive material where it will be found by, given to or brought to the attention of [the complainant], or do any similar act against [the complainant]; and
(c) Condition 5: You are not to give any offensive material to [the complainant] directly or indirectly, or do any similar act against [the complainant].
[57] The complaint as to condition 3 was that compliance with it would prevent Mr McNicol from complying with the order made by McMurdo J in Fitness First Australia Pty Ltd v McNicol,[39] and specifically prevent him from distributing information about the dispute with Fitness First. The complaint with respect to conditions 4 and 5 was that they were too broad.[40]
[58] Paragraphs 1(b) and (c) of the orders made by McMurdo J were (relevantly) that Mr McNicol was restrained from:
“(b)making any publication which disparages the applicant in respect of any conduct of the applicant which was the subject of the dispute between the parties which was settled by the deed executed by them and dated 29 March 2012 or in respect of the performance or otherwise of the terms of that settlement;
(c)writing, emailing, calling, texting or sending any other communication to any staff member or customer of a Fitness First Health Club, as to the dispute which was settled by that deed or as to that settlement, except to communicate the contents or effect of the letter signed by the parties on 29 March 2012.”
[59] The learned primary judge pointed out that the source of the two sets of orders were different, with those by McMurdo J being in vindication of contractual rights and obligations as between Fitness First and Mr McNicol, whereas those in the restraining order were made under s 359F of the Criminal Code 1899, which enables a court to restrain acts that might constitute unlawful stalking. The learned primary judge correctly pointed out that there was no reason why a restraining order under s 359F cannot be more stringent that the orders of McMurdo J, which were made to serve a different purpose, and to protect different rights.[41]
[60] In my respectful view, the learned primary judge was correct to distinguish the one set of orders under s 359F from those made by McMurdo J. The s 359F restraining orders are solely concerned with preventing Mr McNicol from committing acts directed at the complainant. The orders by McMurdo J were directed to another issue, namely the right of Fitness First to have a compromise agreement honoured, and for Fitness First not to be disparaged. The orders of McMurdo J did permit Mr McNicol to distribute the letter of 29 March 2012.
[61] The learned primary judge did not consider that distributing the letter of 29 March 2012, referred to in order 1(c) of the orders by McMurdo J, could breach condition 3 of the restraining orders.[42] I agree with that conclusion.
[62] Before this Court Mr McNicol asserted that distributing the letter of acknowledgment would breach condition 3 because the complainant was one of the people referred to in the letter.[43] That assertion must be rejected. The letter is in these terms:
“To Members and Staff
Fitness First Robina
As you may be aware, a dispute had arisen between Fitness First Robina and Mr Dean McNicol.
After meetings and discussion between the parties, it is acknowledged by both Fitness First Robina and Mr McNicol that there were misconceptions, miscommunication and misunderstandings by various persons which lead to the dispute.
Fortunately, the parties have now met and resolved the dispute and their differences.
The matter is now at an end – fully and finally resolved – and both parties have agreed that the matter should now be put behind them so that both parties can move on.
Mr McNicol will no longer be attending Fitness First Robina.
There will be no further comment on the matter and all matters relating to the dispute are confidential.”
[63] The complainant is not one of the “parties” to the letter, nor is she referred to in it, unless she is comprehended in the phrase “various persons”.
[64] Mr McNicol also contended that the width of conditions 4 and 5 meant that he “can’t make any public statement about any organisation or person which could be deemed indecent or obscene by the QPS,[44] as the restraining order states that if I make any such statement that the complainant … could potentially see then I would be in breach ...”.[45]
[65] The contention fails to deal with the fact that the power to make a restraining order is directed to restraining acts directed at the complainant. Further, the point is now moot, as the restraining order was for two years from 10 February 2014. It has now expired. That fact also means that there is no credible argument that there remains any substantial injustice that remains to be remedied.
[66] I do not consider that there is any merit in the contentions on this ground.
Ground 10: the magistrate did not take into account the time served in pre-sentence custody
[67] Mr McNicol’s outline does not urge any particular contentions as to this ground. As developed orally it came down to the contention that no methodology was exposed revealing how the time served was taken into account.
[68] There is no merit in this ground.
[69] The learned primary judge noted that the magistrate imposed a wholly suspended sentence, recognising that Mr McNicol had been in custody and taking that into account on the head sentence imposed.[46] That was plainly correct as the learned Magistrate said this during the sentencing remarks:[47]
“I accept that you have served a period of 131 days of presentence custody, that being in relation to the period from the 2nd of January - sorry, the 2nd of February 2013 to the 12th of June 2013. That period of 131 days I will, and I must, take into account as to presentence custody in relation to the matter.”
and
“I declare that I have already reduced the sentence by 131 days in relation to the presentence custody. You are to serve eight months imprisonment in respect to this charge.”
[70] In my view, it is clear that the learned magistrate took the time served into account by adjusting the head sentence down to eight months.
[71] The learned primary judge also considered the sentence afresh, on the basis that Mr McNicol’s success on the challenge to the acts done outside the Fitness First gym would require a resentencing.[48] His Honour said:
“This would justify a re-exercise of the sentencing discretion, however, I would not be minded to impose any lesser sentence even on the basis of the more restricted acts constituting the proven stalking (consistently with these reasons), having regard to all the circumstances including the seriousness of the conduct otherwise and its effect on the complainant.”
[72] Even if the magistrate did not take into account the time served, which is not the case, the learned primary judge did on the re-sentencing. Thus as no error in the approach of the learned primary judge has been shown, this ground fails.
Ground 11: the restraining order was made before Mr McNicol was found guilty
[73] There is no merit in this ground. The learned primary judge listened to the audio recording of the trial proceedings. That established that argument on the restraining order occurred only after the conviction.[49] As it appears the audio recording was played in court on the appeal and Mr McNicol conceded that he was wrong to assert that the order preceded the verdict.[50]
[74] Mr McNicol also complains that he should have been given the opportunity to prepare for a separate hearing in respect of the restraining order.[51] However, the fact an adjournment was not sought from the learned magistrate suggests that one was not needed, or at least that there was no error in the exercise of the discretion to hear submissions as to the restraining order arguments when they were heard.
Ground 12: preventing further cross-examination of Ms Griffiths
[75] At his trial, Mr McNicol wished to cross-examine Ms Griffiths about an allegedly inappropriate relationship with the arresting officer. He contended in his appeal to the District Court that he had been wrongly prevented from doing so.
[76] The learned primary judge examined the exchanges said to show that the questioning was improperly stopped, and concluded that there was no merit in the complaint.[52] In fact, on the two occasions when Mr McNicol was challenged about the line of questioning, on the first occasion he chose not to pursue it,[53] and on the second occasion he declined the chance to peruse the authority urged against him, and withdrew the question.[54]
[77] No reason has been shown to doubt the conclusions reached by the learned primary judge.
Ground 13: no evidence to support the verdict
[78] This ground contends that there was insufficient evidence to support the verdict. In reality it is a submission that the verdict was not open on the evidence. A “no evidence” ground of appeal is characterised as a matter of law,[55] and the error asserted in this ground should be understood in that way.
[79] As developed orally, the contention was that there was no proof of detriment to the complainant.
[80] It is evident that the learned primary judge reviewed all the trial evidence.[56] Further, his Honour paid particular attention to the specific grounds advanced by Mr McNicol, including this particular ground.[57]
[81] The learned primary judge pointed out that in support of this ground Mr McNicol referred to the other grounds advanced. The same was the case before this Court, with emphasis being placed on the contention that the learned primary judge erred in finding that detriment had been shown. For the reasons already given in paragraphs [45]-[54] above that contention cannot be sustained.
[82] In my view it cannot be demonstrated that the learned primary judge erred on this ground. Factors supporting that conclusion are:
(a) the magistrate preferred the evidence of the prosecution witnesses to that of Mr McNicol; in fact he made adverse findings against Mr McNicol;
(b) the learned primary judge summarised aspects of that evidence by reference to the findings of the magistrate and the prosecution submissions on appeal;
(c) a number of credible witnesses gave corroborated evidence that the during the charged period, Mr McNicol had approached the complainant, both at Fitness First and later at the shopping centre, and had sent numerous emails to others; further, the essential content of those emails was likely to have been conveyed to the complainant and was likely to cause fear or apprehension;
(d) despite Mr McNicol’s assertions that he had a legitimate reason for sending the email messages and attempting to contact the complainant, given the nature of his conduct it was not reasonable, and in fact was not engaged in for a legitimate purpose; and
(e) there were no demonstrated errors in how the trial proceeded, or in how the evidence was interpreted or accepted.
[83] In my respectful view, the learned primary judge was correct in his analysis and his conclusion that the conviction was supported by the evidence. Having reviewed the evidence myself, I would come to the same conclusion.
[84] No error has been demonstrated on this ground.
Conclusion
[85] For the reasons given above there is no merit in the points raised by Mr McNicol. There being no error of law demonstrated, I would refuse the application for leave to appeal.
[86] I would propose the following order:
1.The application for leave to appeal is refused.
[87] PHILIPPIDES JA: I have had the considerable advantage of reading the reasons for judgment of Morrison JA. I agree with those reasons and the order proposed.
[88] MULLINS J: As Morrison JA has set out carefully Mr McNicol’s arguments in respect of each of the grounds of appeal and shown that there was no error of law made by the learned District Court judge who dismissed Mr McNicol’s appeal from the learned Magistrate, there is no point in my repeating that exercise. I have had the opportunity to read Morrison JA’s reasons with which I agree. The outcome must be the application for leave to appeal is refused.
Footnotes
[1] Pickering v McArthur [2005] QCA 294 at [3]; Berry v Commissioner of Police [2014] QCA 238 at [4]; White v Commissioner of Police [2014] QCA 121 at [5].
[2] [2014] QCA 121 at [8].
[3] Commissioner of Police v Al Shakarji [2013] QCA 319 at [65] per Margaret Wilson J; Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4].
[4] Gobus v Queensland Police Service [2013] QCA 172 at [3]-[5] per Fraser JA, and Commissioner of Police v Al Shakarji [2013] QCA 319 at [75] per North J.
[5] (1936) 55 CLR 499 at 504-505.
[6] [2004] QDC 279.
[7] Reasons [7].
[8] Reasons [8].
[9] Reasons [9].
[10] Reasons [10].
[11] Reasons [11].
[12] AB 967; Reasons [15].
[13] Reasons [25] and
[14] There was no application to adduce new evidence in the hearing in the District Court.
[15] Applicant’s outline, paragraphs 35 (ground 2), 37 (ground 3), 42 (ground 4), 44 (ground 5), 47 (ground 6), 52(ground 7), 55 (ground 8), 57 (ground 9), 61 (ground 10), 63 (ground 11), 66 (ground 12) and 68(ground 13).
[16] AB 308. Reasons [31]-[34].
[17] AB 313, 318.
[18] Reasons [35].
[19] Applicant’s outline, paragraph 39.
[20] Reasons [38].
[21] Reasons [39]-[48].
[22] Reasons [44].
[23] Reasons [45].
[24] Reasons [46].
[25] Reasons [47].
[26] Reasons [48].
[27] [2004] QDC 279.
[28] Reasons [50].
[29] Reasons [51].
[30] Reasons [54]-[55].
[31] [2012] QSC 296.
[32] Reasons [65]-[68], [74].
[33] Reasons [70]-[72].
[34] Reasons [77]-[91].
[35] Reasons [83].
[36] Reasons [86]-[87], [89].
[37] Reasons [86]; trial transcript T 1-112 to 113. Emphasis added.
[38] Trial transcript T 2-45; Reasons [88].
[39] [2012] QSC 296.
[40] Reasons [119].
[41] Reasons [120].
[42] Reasons [123].
[43] Applicant’s outline, paragraph 58.
[44] Queensland Police Service.
[45] Applicant’s outline, paragraph 59.
[46] Reasons [110]-[112].
[47] AB 746-747.
[48] Reasons [114].
[49] Reasons [117].
[50] AB 1091.
[51] Applicant’s outline, paragraph 64.
[52] Reasons [92]-[100].
[53] Reasons [97].
[54] Reasons [99].
[55] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.
[56] The prosecution evidence was summarised at Reasons [8], and that of Mr McNicol at Reasons [9]; and then his Honour said he had read the transcript: Reasons [11] and [102].
[57] Reasons [101]-[103].