R v Cox[2016] QCA 251

SUPREME COURT OF QUEENSLAND

1. PHILIPPIDES JA:  The appellant was convicted by a jury on 31 March 2015, after a four day trial, of one count of unlawful stalking under s 359E(1) of the Criminal Code (Qld) and sentenced on 1 April 2015.  The appellant appeals against his conviction and also seeks leave to appeal against sentence.

Background

2. The complainant was a housekeeper at a resort complex.  Some of the units at the complex were rented as holidays units but others were permanently occupied.  The complainant had been working at the resort for about 18 months and knew the appellant as the owner occupier of a unit on Level 9 of the complex.  She was aware that the appellant and the complex management had had disputes, although she had not had problems with him.  However, the complex management had, in December 2013, directed staff not to enter any lift with the appellant.
3. The conviction concerned three different incidents.
4. The first incident occurred on 21 December 2013.  The complainant and another housekeeper, Ms Chambers, were working in Room 75 on Level 1 of the complex with their trolley outside the room.  The complainant left the room to go to the trolley and Ms Chambers went to the lift with the intention of going to another floor for linen.  As the lift opened, the complainant saw that the appellant was in the lift.  He was clearly going to another floor as he had shopping bags and did not leave the lift.  The encounter was a coincidence.
5. The complainant, concerned that Ms Chambers was about to breach a management directive said, “There’s something we need to do at the trolley”.  Ms Chambers walked back to the trolley and said in a low voice, “Is that him?”  The complainant said it was.  The appellant became aware that they were talking about him.  He apparently took offence and called out, “Are you talking about me?”  He also asked, “What’s your name?”  The women turned their backs on him and went into Room 75.  They could still hear him.  The complainant said he swore at her in words to the effect of “What’s your fucking name?”  Ms Chambers said she could hear him but could not make out the words.  However, she did say he was loud and sounded angry.  The complainant said she could not say whether he left the lift as he was still holding the door when she went into Room 75.  They stayed in Room 75 for a while and decided to continue to clean but they did not go back to the trolley until they thought he had gone.
6. The second incident occurred later on the same day.  After finishing in Room 75, the complainant and Ms Chambers went to Room 76 on Level 2 and their supervisor joined them to help.  The complainant left the room to go to the trolley.  She saw the appellant approaching her at a brisk pace.  The trial judge accepted on sentence that the appellant was not at the time looking for the complainant as he often used Level 2 to exit the complex.  This was to avoid going through the reception area because of his disputes with management.  The complainant said the appellant called out to her when he saw her, using words to the effect of, “What’s your fucking name?  Who are you?  You’ve been talking about me”.  This unsettled the complainant: she was heard to yelp, she dropped what she was holding and raced back into Room 76.  The other workers observed she was distressed.  They attempted to calm her down, and they all stayed in the room for approximately 20 minutes to ensure it was safe to leave.
7. The third incident occurred eight days later, on 29 December 2013, in the basement of the complex.  The complainant and the appellant again encountered one another coincidentally.  Most of this incident was captured on CCTV footage.  The lift door opened in the basement.  The appellant was near the door ready to enter the lift with a trolley in front of the door.  The complainant had her back to the door as she went to exit the lift.  When she turned around she saw the appellant barring her way.  He again said, “What’s your fucking name?  Who are you?”  She said he was yelling.  On sentence, however, his Honour did not accept that, though his Honour did find that the appellant raised his voice.  For some 18 seconds, before she could get her trolley out, the appellant barred the complainant’s exit from the lift.  He then blocked her exit for a further 12 seconds or so before he got out of the way after she went to use her mobile phone.  She then walked towards a store room.  The appellant followed her for a short distance and she said he continued to call out to her.  The complainant then locked herself in the store room out of fear of the appellant.
8. Evidence from the complainant given in cross-examination indicated that in September 2013 she had suffered some stressors in her life arising out of a marriage breakdown and she had gone to her general practitioner.  He had recommended a mental health care plan that involved visits to a psychologist.  She denied that she had overreacted to these incidents.  She denied she had overstated, exaggerated or erred in giving evidence of the incidents.  She also denied that the general manager had encouraged her to go to police or “ramp up” the allegations so that the appellant would be evicted from the building.
9. At sentence, the trial judge found that the complainant apprehended or feared violence from this episode, although the incidents may not have affected other people as they did the complainant.  The applicant was not prepared to agree to probation.  Instead, a fine of $2,000 was imposed (which was referred to the State Penalties Enforcement Registry (SPER)) and a conviction was recorded.  A restraining order was also made in relation to contact with the complainant.

Appeal against Conviction

Ground 1 – the verdict was unreasonable and could not be supported having regard to the whole of the evidence

10. Section 359E(1) creates the offence of unlawful stalking.  Relevantly to this case, s 359B provides that:

“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;

...

(vi)an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;

…

(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.”

11. The appellant’s primary ground of appeal was that the guilty verdict was unreasonable and could not be supported having regard to the whole of the evidence.  The ground is not made out.  The verdict is to be considered on all the evidence before the jury.  As the respondent submitted, the trial judge fairly detailed the evidence to the jury in the summing up.
12. The jury were also given explicit instructions on the elements of the offence tailored to the facts of this case.  As to s 359B(d)(i), the jury would have understood from the summing-up that there was no actual violence, or threats of actual violence, alleged and that that was not in issue.  It was tolerably clear that what was in issue was whether the complainant had an apprehension of violence reasonably arising in all the circumstances.  As to s 359B(d)(ii), the jury was directed in terms of the definition of detriment in s 359A.  Additionally, the jury were directed in accordance with the Benchbook that: “[i]t’s immaterial whether [the appellant] intended to cause the apprehension or fear or the detriment mentioned in [s 359B(d)(i)] and [s 359B(d)(ii)].  It’s immaterial for [s 359B(d)(i)] whether the apprehension or fear of violence or the violence is actually caused”.
13. If the jury found that the incidents occurred in the way described by the complainant along with her reaction to them, there was more than sufficient evidence to support the charge.  The issue, however, was peculiarly a jury question.

Ground 2 – there were errors of fact contained within the evidence provided to the court

14. The appellant contended that there were errors of fact contained within the evidence provided to the court.  Two matters were raised.  Firstly, the appellant referred to the complainant’s victim impact statement in which the complainant asked that the Court have the appellant removed from the resort.  The appellant submitted that statement revealed that the true motivation behind the complaint was to have the appellant removed from the resort.  Secondly, the appellant submitted that there was insufficient factual evidence for the jury to find the appellant guilty beyond reasonable doubt of unlawful stalking as, in the appellant’s submission, the complainant had lied and exaggerated in her evidence regarding the incidents on 21 and 29 December 2013.
15. As the respondent submitted, it was clear from the summing-up that the appellant’s argument to the jury was that the complainant was exaggerating her evidence, was influenced by the management to make the complaint, and that the management’s attitude to him and warnings about him had clouded her evidence.  It is abundantly clear that these issues and the complainant’s true motivation were before the jury for their consideration.  They obviously rejected the appellant’s contention that the complainant’s evidence should not be accepted.
16. In any event, as the respondent submitted, even if it could be inferred from the evidence that the complainant did not want the appellant around the complex that did not necessarily render her a dishonest or unreliable witness.  It was apparent from her evidence that she feared the appellant and was distressed at the prospect of seeing him.  It was a consideration that might be seen as tending to support her credibility rather than detract from it.  Such matters were ultimately ones which were in the jury’s province to consider.

Ground 3 – there were questions of law and errors of law in the trial which the jury did not understand

17. The appellant also submitted that there were “questions of law and errors of law the jury did not completely understand”.
18. A matter raised in this context was a submission as to s 359D(e) of the Criminal Code (Qld), which concerns particular conduct that is not unlawful stalking.  That provision provides that unlawful stalking does not include “reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.”  The applicant’s contention is not made out.  The trial judge gave detailed directions on the matter.  There was conflicting evidence before the jury and it was a matter for the jury to determine what evidence they accepted.
19. A further matter argued by the appellant concerned the directions to the jury and their understanding of whether the actions were intentionally directed toward the complainant or whether they were directed towards both housekeepers.  In that regard, the appellant referred to Gibson v Golding, where it was said:^[1]

“The difficulty with this evidence is in showing that it was intentionally directed at the respondent rather than being intentionally directed just at the security officer.  There was evidence that there were two acts of violence committed but they were both committed against the security officer, and much of the evidence of the respondent related to both him and the security officer indiscriminately.  There was nothing in the evidence that I could identify which involved any acts of the appellant which were unambiguously directed to the respondent rather than the security officer, or conduct which could have been unambiguously characterised as directed to both of them.”

20. The jury was specifically directed that it had to find that the conduct was intentionally directed to the complainant.  In relation to the appellant’s argument that there was insufficient evidence that his actions were specifically directed towards the complainant, while it may have been possible to make that argument in relation to the first incident (since Ms Chambers was also present) this was not so in respect of the other two incidents.  As to the second and third incidents, only the complainant was present so it could not reasonably be argued that his actions were directed at anyone else.
21. In addition, the appellant contended that there were questions of law and errors of law that the jury did not completely understand in relation to finding the appellant guilty beyond reasonable doubt.  These complaints were expressed as follows:

“(a)that no evidence of a particular fact is a question of law;

(b)whether a particular inference can be drawn from facts is a question of law;

(c)the making of findings and drawing of inferences in the absence of evidence is an error of law; and

(d)an inference not reasonably open on the evidence is an error of law if there is no evidence to support it.”

22. The jury were given orthodox directions as to what was capable of constituting evidence and as to the difference between evidence and an inference, deduction or conclusion.  The trial judge directed as to the process of drawing inferences.  The learned trial judge gave the jury an example by way of illustration.  There is no basis for complaint as to the adequacy of the directions.  His Honour also directed as follows:

“You may only draw reasonable inferences.  Your inferences must be based on facts you find proved by the evidence.  Your inferences must have a logical and rational connection to the facts you find and your deductions and conclusions.  You’re not to indulge in intuition or guessing.”

23. The appellant also contended that the stalking particulars provided by the trial judge to the jury were not sufficiently understood by the jury to find the appellant guilty beyond reasonable doubt.  However, the unspecified claims that the jury did not understand the law cannot be sustained where they are made without reference to misdirections by the judge or to questions by the jury.

Application for Leave to Appeal against Sentence

24. The trial judge referred to the following matters as relevant on sentence: that the appellant did not intend to do the complainant harm but that she did fear violence; that the detriment suffered by the complainant was exacerbated by her abnormal sensitivity and that she had suffered more than the applicant would have expected and that the applicant had been diagnosed with depression and anxiety consistent with post-traumatic stress disorder and since that time had nursed his wife prior to her dying from cancer.  He had been prescribed anti-depressants and anti-anxiety medication.  The applicant did not appreciate the fragility of the complainant, which the trial judge found to be obvious.  This made his criminality less serious but also made his risk of being dangerous greater because of his lack of insight.  His Honour did not consider that the applicant posed such a risk as to require a suspended sentence and a fine was considered sufficient.  (As noted, the applicant had refused probation.)  In the circumstances, a non-contact restraining order was also considered appropriate to protect the complainant.  As the applicant had previous convictions and there was no evidence that a conviction would affect his employment prospects, it was determined that a conviction should be recorded.

Submissions

25. The appellant did not specify the grounds of his appeal against sentence, but it appears to be based on the ground of manifest excessiveness.  He made reference to a history of mental health issues and asked for “patience, leniency and compassion from the court”.
26. The respondent submitted that the relevant factors in determining the appropriate sentence were the effect of the offending on the complainant; the need to protect the complainant; the need for personal and general deterrence; and, in the absence of consent to probation, the need to achieve these objectives by some means other than probation.
27. I accept the respondent’s submissions that the sentencing judge’s discretion took into account all relevant factors and that the sentence imposed was lenient in the circumstances.  A probation order would have been appropriate if the applicant had consented to one.  In the absence of that, a suspended sentence might have been appropriate in light of his Honour’s finding that the applicant lacked insight.  The fine imposed was not large and the applicant indicated at sentence that he had the capacity to pay.  When his Honour suggested a repayment period of 18 months, the applicant asked for a longer period.  The sentence judge was initially inclined to grant a two year period but ultimately referred the fine to SPER.  Comparable cases such as R v Kyriakou,^[2] R v Cook,^[3] and R v Morris^[4] demonstrate that the sentence was not manifestly excessive and well within a proper exercise of the sentencing discretion.
28. The applicant also sought to appeal against the making of the restraining order under s 359F of the Criminal Code (Qld).  The application for leave to appeal against sentence does not cover the restraining order.^[5]  A separate application for leave is required but, in any event, it is evident that the restraining order was appropriate as a result of the events in question and within the sentencing judge’s discretion.  The verdict and judgment record should be corrected to note that the fine imposed was referred to SPER in lieu of a time period of 28 days to pay being specified.^[6]

Orders

29. The appeal is dismissed.  The application for leave to appeal against sentence is refused.
30. MULLINS J:  Mr Cox appeared for himself on his trial in the District Court for one count of stalking of which he was found guilty by the jury and for which he was fined $2,000 with a conviction recorded.  A restraining order was imposed on Mr Cox pursuant to s 359F of the Criminal Code (Qld) for a period of five years up to and including 1 April 2020 with respect to the complainant which prohibits Mr Cox from intentionally attempting to contact or contacting her by talking to her, by writing to her or by electronic means; photographing or filming her; following or approaching her; or entering an elevator that she occupies.
31. Mr Cox also appeared for himself on his appeal against conviction and application for leave to appeal against the sentence and the restraining order.

Appeal against conviction

32. I will not repeat the summary of the evidence set out in the reasons above of Philippides JA of the three incidents that were before the jury as occasions of stalking.
33. The circumstances out of which the three incidents arose were somewhat unusual in the context of stalking cases in that there was no pre-existing relationship as such between the complainant and Mr Cox before the first incident.  The complainant recognised Mr Cox by sight, but there had been no previous contact between them.  The catalyst for the occurrence of the first incident was the direction that had been given to staff at the complex where Mr Cox resided not to enter any lift with Mr Cox.  When the complainant noticed her co-worker was about to enter the lift with Mr Cox, she said something to her co-worker to stop her from entering the lift, and the first incident then ensued.  The second incident occurred 10 or 15 minutes later on the same day and was arguably a consequence of the occurrence of the first incident.  The third incident occurred eight days later and was mostly recorded on CCTV footage.
34. The prosecution case was not objectively as strong on the first incident, as it was on the second and third incidents, but the jury were given explicit directions on the need for unanimity as to the occasions on which Mr Cox intentionally directed his conduct (that they were satisfied fell within s 359B(c) of the Code) at the complainant.
35. Apart from being satisfied that there were at least two occasions of such conduct that fell within s 359B(c) of the Code, the jury also had to be satisfied that, in respect of each incident that comprised the stalking, the prosecution proved beyond reasonable doubt the element of the offence of unlawful stalking set out in s 359B(d) of the Code that the conduct:

“(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.”

36. The learned trial judge made it clear in the summing up that the jury had to be satisfied that the conduct either would cause the complainant apprehension or fear, reasonably arising in all the circumstances, of violence to her, or caused detriment, reasonably arising in all the circumstances, to the complainant.  With respect to the alternative in s 359B(d)(ii), directions were given in reliance on the definition of “detriment” in s 359A that the detriment that the jury must be satisfied was caused was any one or more of either apprehension or fear of violence to the complainant, or serious emotional harm, or prevention or hindrance from doing an act the complainant was lawfully entitled to do, namely, her duties as a housekeeper, or compulsion to do an act she was lawfully entitled to abstain from doing, namely the act of retreating from her duties as a housekeeper.  The trial judge posed the question for the jury in these terms in relation to s 359B(d)(ii), was there evidence that the complainant was prevented or hindered from doing her duties as a housekeeper?
37. With respect to the ground of appeal that the verdict was unreasonable, Mr Cox argued that there was evidence that could have been procured by the prosecution, but was not procured.  The issue of whether the jury’s verdict was unreasonable must be considered by reference to the evidence adduced at the trial.
38. Mr Cox identified discrepancies within the complainant’s evidence and discrepancies or inconsistencies between the complainant’s evidence and the evidence of other witnesses.  Mr Cox did not give evidence, but addressed the jury highlighting these discrepancies.  The trial judge summarised these arguments during the summing up.  It was a matter for the jury to evaluate the witnesses’ evidence in the light of the arguments that were put by Mr Cox.  I agree with Philippides JA that if the jury found the incidents occurred in the way described by the complainant in her evidence and the consequence for her, particularly in relation to the third incident, or the consequence for her in carrying out her housekeeping duties as a result of each incident, there was more than sufficient evidence to support the verdict of guilty.
39. I otherwise agree with Philippides JA that none of the grounds of appeal relied on by Mr Cox to attack the conviction can succeed.

Application for leave to appeal against sentence

40. The trial judge was extremely fair in the fact finding that was undertaken for the purpose of the sentence.  Although the trial judge found that all three incidents of stalking were proved, he sentenced on the basis that the level of criminality associated with the first incident was “very, very low” and did not accept that conduct could have caused detriment to the complainant, such as an apprehension or fear of violence and could not have caused serious emotional harm.  The trial judge concluded in respect of the first incident that it could have caused the detriment of prevention or hindrance from doing an act the complainant was lawfully entitled to do of further work at the trolley outside the room.  The trial judge also found that it was coincidence that resulted in the complainant and Mr Cox confronting each other when the lift doors opened in relation to the first incident.
41. The trial judge found that it was again a coincidence that the complainant and Mr Cox came in contact with each other for the second incident, as it was Mr Cox’ habit to leave the building via level 2, rather than level 1.  The trial judge did not accept that there was serious emotional harm or an apprehension or fear of violence in respect of the second incident, but proceeded on the basis the jury must have been satisfied that by the conduct involved in the second incident there was detriment to the complainant in that she was hindered or prevented from doing her duties as a housekeeper.
42. The trial judge described the third incident as “the most deliberate and sustained conduct by Mr Cox”, although noted that it again occurred by coincidence when the lift doors opened and Mr Cox and the complainant were confronted with each other.  The trial judge found that the conduct involved in the third incident objectively in all the circumstances would have caused the complainant apprehension or fear reasonably arising of violence and that as a result of that conduct, the complainant suffered serious emotional harm and was also hindered from doing her housekeeping duties.
43. Mr Cox was 49 years old at the time of the offending and 50 years old when sentenced.
44. Mr Cox’ Queensland criminal history did not commence until 4 October 2010 when he was dealt with in the Magistrates Court for a number of relatively minor matters, but relevantly the offence of stealing that was committed on 1 December 2010 related to stealing of documents by Mr Cox which were the property of the body corporate of the complex where he resided.  He was fined in the Magistrates Court on 8 October 2014 for common assault committed on a person at the complex.  He was dealt with for stealing at the Magistrates Court on 10 October 2014 that involved stealing a CCTV security camera from the complex.  He was convicted and fined on 21 January 2015 for two counts of common assault committed against the general manager of the complex.  The stalking against the complainant was committed by Mr Cox whilst he was on bail for the offences of stealing and common assault having a connection with the complex.  There is also an entry in Mr Cox’ New South Wales criminal history for offending committed on 4 July 2011 for which he was dealt with in the Local Court on 1 December 2011.  In respect of the offences of destroy or damage property and stalk/intimidate intend fear personal etc harm (personal), he was placed on a bond for 18 months and required to comply strictly with all the conditions of the AVO order for the protection of the relevant complainant.
45. I rely on Philippides JA’s summary of the observations made by the trial judge in the course of the sentencing remarks.  It is patent in the light of the trial judge’s findings on the facts and the finding about Mr Cox’ risk, because of his lack of insight as to how frightening his conduct is to others, that the fine of $2,000 imposed as the sentence can in no way be challenged as manifestly excessive.

The restraining order

46. The application for leave to appeal against sentence does not extend to the restraining order, because that order is not part of the sentence, but made in the exercise of the District Court’s civil jurisdiction for which leave to appeal must be sought under s 118(3) of the District Court of Queensland Act 1967 (Qld): R v Johnston [2008] QCA 291 at [7]-[9].
47. The terms of the restraining order were carefully drawn by the trial judge to address the risk of Mr Cox intentionally contacting the complainant, photographing or filming her, or repeating the conduct that resulted in the conviction for stalking her.  In light of the trial judge’s conclusion about Mr Cox’ lack of insight as to how his conduct is perceived by others, it is difficult to conclude that the restraining order for a term of five years was other than an appropriate exercise of the trial judge’s discretion.  Like Philippides JA, I cannot see how Mr Cox could be successful if he did apply for an extension of time for leave to appeal in respect of the restraining order.

Orders

48. I agree with Philippides JA that the verdict and judgment record must be corrected to show that the fine of $2,000 was referred to SPER rather than specifying a time period of 28 days for payment of the fine.  I also agree that the appeal must be dismissed and the application for leave to appeal against sentence refused.
49. DOUGLAS J:  I agree with the reasons of and the orders proposed by both Philippides JA and Mullins J.