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R v Glover[2022] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION:

R v Glover [2022] QCA 50

PARTIES:

R

v

GLOVER, Vivienne Mary

(appellant/applicant)

FILE NO/S:

CA No 325 of 2021

DC No 170 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction and Sentence: 18 November 2021 (Rosengren DCJ)

DELIVERED ON:

Date of Orders: 8 April 2022

Date of Publication of Reasons: 12 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2022

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

Orders delivered: 8 April 2022

  1. The appeal against conviction be allowed.
  2. The verdicts below are quashed.
  3. There be a retrial in respect of each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was charged with two counts of stalking – where the counts were broadly particularised as constituting 96 specific acts in respect of the first count and 15 specific acts in respect of the second count – where the particularised acts spread over a period of 11 years – where at trial, the two complainants gave evidence of specific instances of varying types and frequencies, including periods where no acts of stalking were being perpetrated by the appellant – where the appellant claimed that the particularisation of specific acts, rather than generalised conduct, resulted in each count being latently duplicitous – whether the counts were duplicitous

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed that the jury could convict if they all agreed that the defendant committed at least two of the acts identified in the particulars for each count, and were satisfied that the course of conduct consisting of the identified acts caused detriment to the complainant – where the trial judge gave the jury written documents identifying matters relevant to particular acts, but did not specifically direct the jury as to evidence relevant to the particularised acts – where the appellant claimed that several of the particularised acts were in order to give or obtain information in respect of which there was a legitimate interest pursuant to s 359D(e) of the Criminal Code – where the trial judge made directions as to the reasonableness of the appellant’s conduct by reference to a test of the objective truth of the information – where the appellant submits that it was open for the jury to be satisfied of the appellant’s genuine belief in the allegations – whether the trial judge misdirected the jury

Criminal Code (Qld), s 359(B), s 359(D), s 567(3)

Daly v Medwell (1986) 40 SASR 281; [1986] SASC 8847, cited

R v Chen [1997] QCA 355, considered

R v Conde [2016] 1 Qd R 562; [2015] QCA 63, cited

R v Giretti (1988) 24 A Crim R 112; [1986] VicSC 484, cited

R v Locchi (1991) 22 NSWLR 309, cited

Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, cited

COUNSEL:

C J Eberhardt QC, with J R Jones, for the appellant/applicant

C W Wallis for the respondent

SOLICITORS:

FL Lawyers for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  The Court made the following orders on 8 April 2022:
  1. The appeal against conviction be allowed.
  2. The verdicts below are quashed.
  3. There be a retrial in respect of each count.
  1. [2]
    These are the Court’s reasons for the making of those orders.
  2. [3]
    On 18 November 2021, a jury found the appellant guilty of two counts of unlawful stalking.  The appellant was sentenced to imprisonment for three years on the first count and a concurrent period of nine months’ imprisonment on the second count.  A parole release date was fixed at 17 February 2023.
  3. [4]
    The appellant appealed that conviction and sought leave to appeal sentence.
  4. [5]
    The appellant relied on three grounds of appeal in respect of the conviction.  First, that the indictment was latently duplicitous.  Second, that the trial Judge failed to adequately direct the jury on the evidence.  Third, that the trial Judge misdirected the jury about the application of s 359D(e) of the Criminal Code.
  5. [6]
    Were leave granted to appeal sentence, the appellant relied on two grounds.  First, that the trial Judge erred in failing to take account of, or give sufficient weight to, a significant mitigating factor.  Second, that the sentences are manifestly excessive, having regard to the circumstances of offending and the matters in mitigation.

Background

  1. [7]
    The appellant was born on 24 June 1950.  She was aged 58 at the commencement of the unlawful stalking counts and aged 69 at the end of those stalking counts.  The appellant had no prior criminal history.
  2. [8]
    The respective complainants in the unlawful stalking counts were a husband and wife who lived at the property adjacent to the appellant’s property.  Each count alleged unlawful stalking between 30 November 2008 and 31 July 2019.
  3. [9]
    At the commencement of the trial, each count was broadly particularised, identifying types of conduct regularly undertaken by the appellant throughout the extended stalking period.
  4. [10]
    As a result of rulings by the trial Judge, more specific particulars were provided at the end of the Crown case.  Those particulars identified 94 specific acts for the first count, and 15 specific acts for the second count.  An application by the appellant for a mistrial was refused by the trial Judge.
  5. [11]
    During the prosecutor’s address, a revised particulars document was provided to the jury in respect of the first count.  It alleged 96 specific acts.  The revision occurred because that count had charged a circumstance of aggravation, namely “with possession of a weapon”, which was discontinued by the prosecution.  The acts in support of it were relied on as further particulars of the first count.

Trial

  1. [12]
    The first witness called by the Crown was the complainant in the first count.  He gave evidence of specific, multiple occasions on which the appellant had engaged in conduct of the nature broadly particularised at that time.  That conduct included simply watching the complainants; verbal abuse; making false complaints (including to police); taking photographs; throwing various items over the adjoining fence; yelling abuse and threats; video recording of the complainant; and driving her motor vehicle at or near the vehicles of visitors to their house.
  2. [13]
    Whilst the evidence of the complainant in the first count was of stalking conduct over the entire almost 11 year period specified in count one, his evidence identified specific instances of varying types and frequencies with periods when no such conduct was being perpetrated by the appellant.
  3. [14]
    For example, the first two particularised acts were in late 2008 and early 2009, with the next particularised acts occurring in late 2009 and early 2010.  Similarly, acts were particularised as having taken place between November 2010 and December 2012 with the next particularised acts occurring between June 2013 and December 2015.  Further particularised acts were perpetrated between June 2016 and September 2016 and March 2017 and February 2019.
  4. [15]
    The complainant in the second count also gave evidence of acts of stalking perpetrated by the appellant over the period charged in the second count.  Again, the particularised acts occurred at specified times but with even longer periods during which no acts of stalking were identified as having been perpetrated by the appellant.
  5. [16]
    For example, the first four particularised acts occurred between July 2010 and November 2010, with the next act having occurred in early 2011 and the one subsequent to that in August 2011.  Thereafter, acts were particularised as having occurred in May and June 2014, April 2015, June 2016, December 2016 and April 2017 with the last particularised act occurring in December 2018.
  6. [17]
    In cross-examination, each of the complainants was challenged, both as to the accuracy of their evidence and as to the circumstances in which some of the conduct was admitted to have occurred but for which there was said to be justification.  That justification was contained in a lengthy interview between police and the appellant in which the appellant made assertions that she herself had been the victim of abuse and harassment, and that action such as photographing or videotaping the complainants or making complaints was in order to give or obtain information in respect of which there was a legitimate interest.
  7. [18]
    The Crown called a number of other witnesses, including police and other lay witnesses supportive of the complainants’ evidence.
  8. [19]
    The appellant did not give evidence at trial.  However, correspondence between her and the police and law firms was tendered in the Crown case.

Appellant’s submissions

  1. [20]
    The appellant submitted that whilst the particularisation of specific acts, rather than generalised conduct, supported each count, those particulars resulted in each count being latently duplicitous.  The duplicity arose because the particulars identified discrete periods of stalking, with long periods in between where there was no such conduct.  The particulars also related to conduct of varying types, frequency and intensity, some of which arguably could not constitute unlawful stalking, as it was reasonable conduct engaged in by the appellant to obtain or give information that the appellant had a legitimate interest in obtaining or giving.[1]
  2. [21]
    The appellant submitted that, whilst the jury were properly directed that they must all be satisfied beyond reasonable doubt of at least two of the acts identified in the particulars, and that they must all agree on what those acts are, each count as particularised rendered it impossible to know which two or more acts the jury found were proven and the period over which there had been unlawful stalking, or as to the nature of the detriment suffered by each complainant as a consequence of those proven acts.
  3. [22]
    The appellant further submitted that the particularisation of unlawful stalking over a period extending to almost 11 years required the trial Judge to specifically assist the jury as to the evidence relevant to the particularised acts, as well as possible alternative inferences open on that evidence.  The trial Judge did not remind the jury of any such evidence or direct as to available inferences.
  4. [23]
    Finally, the appellant submitted that the trial Judge misdirected the jury about the application of s 359D(e) of the Criminal Code.  Those directions specifically dealt with the giving of information but did not deal at all with the obtaining of information by observing or watching the complainants.  The directions also dealt with the reasonableness of the appellant’s conduct consistent with a test to be resolved by simply determining if the information was objectively false, whereas it was open on the evidence for the jury to be satisfied that the appellant genuinely believed some or all of the allegations.  Whilst defence counsel did not seek a redirection, the failure to do so is not explained as a forensic decision and it remained incumbent on the trial Judge to give proper directions.

Respondent’s submissions

  1. [24]
    The respondent submitted that the particulars provided at the end of the Crown case fulfilled the essential function of identifying the acts relied upon to support each count of unlawful stalking.  There was no duplicity in the particularisation of those acts.  The jury were properly directed as to the need for unanimity on two or more acts and as to the application of s 359D(e) to particular acts.
  2. [25]
    The respondent further submitted that the trial Judge’s directions to the jury met the obligation to address the facts as necessary, in the context of the relevant law.  Those directions were supplemented by written documents identifying relevant matters in respect of particular acts.  A reference to specific evidence would have provided no additional assistance to the jury.
  3. [26]
    Finally, the respondent submitted that the trial Judge correctly directed the jury in relation to the conduct under s 359D(e) of the Code.  Those directions included a written document, referencing particular acts.  The trial Judge’s directions did not specifically refer to the obtaining of information as that was consistent with the case run by the defence at trial.
  4. [27]
    Further, although an aspect of the trial Judge’s directions had the capacity to reverse the onus of proof in relation to the reasonableness of the conduct, the jury could have been under no misapprehension that the onus of proof rested on the prosecution to prove that the information given by the appellant was knowingly false.

Conviction appeal

Ground 1

  1. [28]
    Section 567(3) of the Criminal Code provides that where more than one offence is charged in the same indictment, each offence charged should be set out in the indictment in a separate paragraph called a count.  That occurred in this case.  On the face of the indictment, count 1 charged one offence and count 2 charged a second offence.  There was no patent duplicity.
  2. [29]
    The appellant’s argument sought to liken this case to R v Chen,[2] where convictions were quashed because of a latent duplicity in each of the charges.  The charges in Chen were two counts of assaulting police officers acting in the execution of their duty.  The Court held that the prosecution case within each count alleged several offences of that kind.  However the Court also noted that there are cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge.  Their Honours said that “one obvious class of such cases is that where the offence may be constituted by continuing conduct” for which they instanced R v Giretti[3] and R v Locchi.[4]  The Court continued:

“However in the present case, though the various alleged assaults occurred within a short space of time and were part of a connected series of events they were of different kinds, the evidence with respect to them differed both in quantity and quality and there were defences open to some which arguably were not open to others.”

  1. [30]
    Upon the alleged facts which were particularised in this case, the appellant might have been charged with several counts of unlawful stalking against each of the complainants.  But the nature of the offence of unlawful stalking is that it may involve conduct which has been engaged in on more than one occasion and consists of more than one act.[5]  As Peter Lyons J said in R v Conde:[6]

“[T]he offence is intended to include a course of conduct consisting of more than one of the acts identified in s 359B(c) [of the Code], even where it is not established that each act, taken in isolation, would cause or caused the relevant fear, apprehension or detriment.”

  1. [31]
    Consequently, the offence of unlawful stalking can constitute that type of case, constituted by continuous activity, which Kirby J in Walsh v Tattersall[7] described as a qualification to the rule against duplicity.  Kirby J instanced cases involving charges of harassment, for which he cited Daly v Medwell,[8] where King CJ said:[9]

“The concept of harassment itself contains within it some element of continuity or at least the capacity for some element of continuity.  Likewise, ‘use’ in one of its senses involves some continuity of conduct and it seems to me that the expression ‘use for the purpose of harassment’ can properly cover a continuing course of conduct consisting of a number of incidents so identified with one another by their nature or by time, place or circumstance, that they can properly be regarded as a single course of conduct and a single continuing use of the telephone service.”

  1. [32]
    In the way prosecution pleaded this case, it assumed the burden of proving, on each count, an offence constituted by a continuous course of conduct extending over some 10 and a half years.  That did not mean that it had to prove each and every alleged act within the particulars.  But it did have to prove such of the alleged acts which could be characterised as a continuous course of conduct and from which the alleged detriment resulted.
  2. [33]
    The real problem arose from the form of the particulars and the way in which the case was described by the judge to the jury in her summing up.  The judge said that in relation to each charge, the jury would have to be satisfied that the defendant committed “as a minimum, two of the particularised acts”, and that they would need to agree on what those acts were.[10]  Her Honour provided the jury with a document which supplemented her oral directions and to which she frequently referred in her summing up.  According to the document, the conduct which the prosecution had to prove was conduct which was “engaged in on more than one occasion”, and they had to be unanimous in their identification of two or more of the alleged acts as particularised.  She said to the jury “so you must all agree that the defendant committed – in relation to each count, at least two of the acts identified in the particulars document for the respective counts, and you must all agree what those acts are.”[11]  As to the element of detriment, her Honour told the jury that “you need to be satisfied that the course of conduct consisting of the acts you have found … as being intentionally directed at the complainant must have caused detriment to the complainant” although there did not have to be a detriment flowing from every single act.[12]
  3. [34]
    The judge’s direction that the jury had to find that there had been conduct engaged in on more than one occasion, was apparently derived from the prosecutor’s particulars, which introduced the alleged acts for each count with the words “[t]he defendant engaged in conduct on more than one occasion, consisting of all or any of the following …”.
  4. [35]
    In that reference to detriment, her Honour did refer to a “course of conduct consisting of the acts you have found”.  Nevertheless, in our respectful opinion, what the judge failed to convey to the jury was that to convict the appellant, the jury had to be satisfied as to such of the alleged acts that together they constituted a continuous course of conduct so as to prove the appellant’s guilt of the alleged offence.  As the jury was directed, they were able to convict the appellant if, for example, they found one of the acts which was alleged to have occurred very early in the period and another one which was alleged to have occurred very late in the period.  More generally, they were able to convict by being unanimously of the view that certain acts occurred over this period of 10 and a half years, although sporadically and not continuously.
  5. [36]
    The particular facts upon which the jury were agreed are unknown.  It cannot be said that this misdirection did not deprive the appellant of the prospect of an acquittal on each charge.  For this reason (quite apart from ground 3 of the appeal) there was a miscarriage of justice which required the convictions to be quashed and a re-trial ordered.

Ground 2

  1. [37]
    For the abovementioned reasons, there was also an obligation on the trial Judge, in the course of summing up, to identify relevant aspects of the evidence.  A failure to do so, in the context of counts which were particularised as involving acts of varying types and intensity in specific time periods with lengthy periods of no such conduct, rendered the directions to the jury inadequate.  That inadequacy deprived the appellant of a fair chance of acquittal, such that there was a miscarriage of justice.

Ground 3

  1. [38]
    As is conceded by the Crown, an aspect of the trial Judge’s summing up reversed the onus of proof when the jury was considering whether the appellant’s conduct could not constitute unlawful stalking by reason of the Crown not having excluded beyond reasonable doubt that such conduct was reasonable conduct by the appellant for the purposes of obtaining or giving information, in respect of which the appellant had a legitimate interest.
  2. [39]
    The directions to the jury were inadequate in a further aspect of s 359D(e) of the Code.  The directions did not refer at all to obtaining information.  At least some of the particularised conduct could properly be the subject of consideration by the jury as to whether the Crown was able to exclude beyond reasonable doubt that such conduct was reasonable conduct in the obtaining of information by the appellant in respect of which the appellant had a legitimate interest.
  3. [40]
    The inadequacy of these directions also deprived the appellant of the prospect of an acquittal on each charge.

Conclusion

  1. [41]
    As there was a miscarriage of justice, the convictions were quashed.  A retrial was ordered on each count.
  2. [42]
    That conclusion rendered it unnecessary to consider the appellant’s application for leave to appeal against sentence.

Footnotes

[1] Criminal Code, s 359D(e).

[2]  [1997] QCA 355.

[3]  (1988) 24 A Crim R 112.

[4]  (1991) 22 NSWLR 309.

[5]  s 359B(b), (c) of the Criminal Code.

[6]  [2016] 1 Qd R 562, 574-575 [43]-[46].

[7]  (1996) 188 CLR 77, 107-108.

[8]  (1986) 40 SASR 281.

[9]  (1986) 40 SASR 281, 296-297.

[10]  AR 153.

[11]  AR 157.

[12]  AR 158.

Close

Editorial Notes

  • Published Case Name:

    R v Glover

  • Shortened Case Name:

    R v Glover

  • MNC:

    [2022] QCA 50

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Boddice J

  • Date:

    12 Apr 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC170/20 (No citation)18 Nov 2021Convicted after trial (Rosengren DCJ and jury) of 2 counts of stalking, each concerning a neighbour, charged as occurring over 11y; neighbours testified to acts of varying types/frequencies with lengthy periods of no acts; counts went to jury comprising 96 and 15 acts respectively; accused claimed to do some acts because of abuse/harassment; jury directed on each count that they must all be satisfied of occurrence of at least 2 acts and that course of conduct consisting thereof caused detriment.
Appeal Determined (QCA)[2022] QCA 5012 Apr 2022Conviction appeal allowed, convictions quashed, retrial ordered; miscarriage of justice; denied chance of acquittal; failure to direct jury that they had to be satisfied as to such of alleged acts that together they constituted continuous course of conduct and, relatedly, to identify relevant aspects of the evidence; as to Code s 359D(e), reversal of onus of proof and failure to direct jury as to obtaining information, which arose on evidence: Morrison and McMurdo JJA and Boddice J.

Appeal Status

Appeal Determined (QCA)

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