R v SDI[2023] QCA 67

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison JA.
2. [2]
   MORRISON JA:  The appellant was convicted after a judge alone trial, on two counts:

   1. (a)
      stalking, contrary to s 359E(1), (3)(c) of the Criminal Code (Qld);^[1] this was found to be a domestic violence offence under s 564(3A) of the Code; and
   2. (b)
      attempting to pervert the course of justice, contrary to s 140 of the Code.
3. [3]
   The trial lasted 11 days.  On the 7th day, the appellant’s original legal team withdrew.  Then, after an adjournment of two months and six days, a new legal team appeared to represent the appellant for the balance of the trial.
4. [4]
   The Notice of Appeal lists many grounds but they can be summarised as set out below.
5. [5]
   Grounds 1 and 2: the verdicts were unreasonable or unsupported by the evidence.
6. [6]
   Ground 3: the trial judge erred in law by admitting the documents that became Exhibit 5 and Exhibit 42.
7. [7]
   Ground 4: the trial judge erred in law in directing that it was open to find that the appellant caused “detriment” within the meaning of s 359A(a) of the Code, in circumstances where the prosecution case was expressly limited to “detriment” within the meaning of s 359A(c) and (d) of the Code, to the exclusion of “detriment” within the meaning of s 359A(a) of the Code.
8. [8]
   Ground 5: the trial judge erred in fact in finding, without evidence:

   1. (a)
      that the appellant and the complainant had been married;
   2. (b)
      that, in October 2014, the appellant and the complainant renewed their lease at Seabreeze for six months; and
   3. (c)
      numerous other matters consistent with the prosecution case.
9. [9]
   Ground 6: the trial judge erred in law by failing to: (i) rule on the admissibility of Exhibit 42 until the point at which the verdicts were delivered; and (ii) rule at all on the objection to the admissibility of Exhibit 5.  Those errors occasioned a miscarriage of justice.
10. [10]
    Ground 7: the appellant was denied a fair trial, in that, contrary to his express instructions, his solicitors and Counsel failed to adduce evidence which would have shown that, or which (alternatively) would have raised a reasonable doubt that:

    1. (a)
       the alleged “printed record of a Google search history found on [the daughter's] Gmail account by the complainant” was fabricated;
    2. (b)
       the complainant fabricated evidence and contravened court orders in the United Kingdom to facilitate her abduction of the daughter;
    3. (c)
       the complainant had a lengthy history of conducting illegal business operations including debt recovery, debt management, loan brokerage, legal advice, and advising upon injury compensation claims;
    4. (d)
       the complainant attempted to blackmail the appellant into making a false declaration about the status of their relationship so she could secure a visa;
    5. (e)
       the complainant left the appellant’s infant son with a convicted paedophile in October 2014, being the circumstance which caused the appellant to terminate an accommodation rental agreement thereby requiring the complainant to leave in March 2015;
    6. (f)
       the complainant’s claim that she left the appellant was contradicted by text message in which she complained that the appellant had left her;
    7. (g)
       the complainant's evidence, denying that she used the appellant’s car to move house, was demonstrably false; and
    8. (h)
       the complainant's evidence was false in other critical respects.
11. [11]
    Ground 8: the appellant was denied a fair trial in that:

    1. (a)
       he expressly instructed his original solicitors and Counsel that he wished to adduce a positive case to support his innocence;
    2. (b)
       his original Counsel failed to put to prosecution witnesses the matters intended to be the subject of that positive case;
    3. (c)
       his original Counsel and solicitors then withdrew due to their failure to put such matters to prosecution witnesses; and
    4. (d)
       he was therefore unable (or, alternatively, was advised by his subsequent solicitors and Counsel that he was unable) to adduce a positive case to support his innocence.
12. [12]
    In respect of Grounds 3 and 6, before this Court the appellant was represented by Counsel and Solicitors, each appearing on a pro bono basis.  In respect of all other Grounds, the appellant represented himself.
13. [13]
    The appellant also applied to adduce new or fresh evidence.  On the hearing of the appeal, the question of the admission of that evidence was reserved.  To the extent necessary, I shall deal with that in the course of examining the grounds advanced by the appellant personally.

Overview of the case

14. [14]
    The learned trial judge accurately recorded an overview of the case at the outset of her Honour’s Reasons, in terms which are convenient to adopt:^[2]

“[2] The complainant and defendant commenced a relationship in Grimsby, UK in 2008 and subsequently married.  They moved to Australia with the complainant’s 12 year old daughter … from a previous relationship and their infant son ….  They settled on the Gold Coast.  The relationship deteriorated in 2014.  On 15 March 2015, while the defendant was away in [a regional town] working, the complainant left the family home with both children.

Stalking

[3] The prosecution case is that between 27 March 2015 and 3 October 2016, the defendant carried out a number of acts against the complainant that are said to constitute stalking.  The alleged acts include but are not limited to: making intimidating phone calls to the complainant; attempting to locate the complainant and their son; following the complainant; making false complaints to police about the complainant; and planting drugs in the complainant’s car.

[4] Another of the acts of stalking identified by the prosecution relates to a number of anonymous online and telephone complaints (“submissions”) to PoliceLink and Crime Stoppers which the prosecution allege were made by the defendant.  The submissions accused the complainant of being a drug dealer, having a gun, hiding drugs in her car and other false accusations.  The defendant denied being the author of most of the submissions when spoken to by police.

Attempt to pervert the course of justice

[5] After the defendant was charged with stalking he was remanded in custody.  The prosecution case is that, whilst in custody, the defendant made a number of phone calls to his brother and a friend (“Arunta calls”) asking them to contact a number of people and request those people provide false statements/statutory declarations admitting responsibility for the Crime Stoppers and PoliceLink submissions in order to assist him get bail and be acquitted.”

Conviction for attempting to pervert the course of justice

15. [15]
    No ground or submissions were separately advanced relating to the conviction for attempting to pervert the course of justice.  Its fate does not depend upon success in overturning the stalking conviction.  As can be seen from the summary above, that charge was that the appellant tried to cause persons to make false statements admitting responsibility for acts which, it was eventually admitted, were done by the appellant, namely submissions to Crime Stoppers and PoliceLink.  That means, whatever the outcome in respect of the other aspects of the appeal, the conviction for attempting to pervert the course of justice must stand.

Consideration of grounds advanced

16. [16]
    Grounds 4, 5, and 8 were not ultimately pressed by the appellant.  I intend to say something briefly as to Grounds 4 and 5, but, in the circumstances, Ground 8 may be ignored.
17. [17]
    Ground 7 was subsumed in the appellant’s arguments on Grounds 1 and 2, the unreasonable verdicts ground.
18. [18]
    It is convenient to commence with Grounds 3 and 6, in respect of which Mr Jones and Mr Tessman of Counsel appeared for the appellant.

Grounds 3 and 6

19. [19]
    Grounds 3 and 6 concern the admissibility of Exhibits 5 and 42.  Several points are made in support:

    1. (a)
       Exhibits 5 and  42 were inadmissible in the absence of evidence from the source of the information in them;
    2. (b)
       Exhibit 5 was not the subject of a ruling on its admissibility at all; and
    3. (c)
       a ruling on the admissibility of Exhibit 42 was deferred at the start of the trial and only made in the course of the trial judge’s deliberations; that occasioned unfairness to the appellant because he did not know the full case he had to meet.

The complainant’s evidence

20. [20]
    Exhibit 5 was a screenshot of the daughter’s computer screen.^[3]  The complainant’s evidence was, in summary:

    1. (a)
       she recognised the document as a printout showing “[appellant’s first name]’s iPhone synched to [the daughter’s] Gmail account”;^[4]
    2. (b)
       asked what the document showed, she said: “So that basically shows that [appellant’s first name]’s iPhone was synched with [the daughter’s] Gmail account and his device was used to log in.”^[5];
    3. (c)
       asked what page she went to in order to access it, she said:^[6]

“So when you log into your Gmail account, you can actually look at the devices that are synced to your Gmail.

...

And you can see which devices that is synched to your laptop or your iPhone and things like that, and that’s where that came up.”;

4. (d)
   she was accessing the daughter’s Gmail account and clicked on “synched devices” in account settings and security settings; doing that directs you to that page;^[7] and
5. (e)
   she saw it on 12 May 2015 and took a photo of the screen and printed it off.^[8]

21. [21]
    In cross-examination, the complainant agreed with the proposition that “the iTunes account is the account that … you can link your various devices together”.^[9]
22. [22]
    Exhibit 42 was a series of printouts,^[10] each from the daughter’s Gmail account, showing what it displayed as the search history on the daughter’s Gmail account.
23. [23]
    As to Exhibit 42, the complainant’s evidence can be summarised as follows:

    1. (a)
       on 12 May, she looked at the search history on the daughter’s Gmail account;^[11]
    2. (b)
       MFI #C was what she saw;^[12]
    3. (c)
       she printed it out and emailed it to her lawyer;^[13]
    4. (d)
       it shows the search history of the daughter’s Gmail account;^[14]
    5. (e)
       she identified various dates and searches, such as: Pornhub.com; “mother beats child; abuse and other signs”; “[complainant’s name] Revenge”; “Can I find someone on Facebook by their phone number”; “How to pay to find someone”; “How do I find someone without paying a fee?”; “Find out where someone lives.”; “How to stalk (find) people in Australia”; “Mobile phone locator”; “[XX] Avenue, Runaway Bay”; “Porn movies and nude sex videos and teen porn videos”; “[XX] Street, Southport”; “[XX] Street, Southport”; “Sanctuary Gardens”; “What will happen if I take my children against a Family Court order?”; “What if I take my children against a court order? ”; “What if I take my children against a court order?”;^[15] and
    6. (f)
       she said she did not do those searches.^[16]
24. [24]
    The complainant gave evidence about how the computer responded when a Gmail account is logged into.  She was asked did she do searches herself through the daughter’s Gmail address:^[17]

“No, no, I didn’t.  So what happens is when somebody is logged into a Gmail account using their device or laptop it actually records all the searches that they do.  So I didn’t conduct any of those searches because it was [the daughter’s] email address, and the only other person that was connected to [the daughter’s] email address at that time, I believe, is [the appellant’s] phone from the printout at the beginning.”

25. [25]
    In cross-examination the complainant said:

    1. (a)
       she downloaded the search history on 12 May; to do that she had to log in to the daughter’s Gmail account;^[18]
    2. (b)
       in order to log on via her laptop computer, she had to go through an internet browser, using Google to access Gmail; in doing so, one is accessing mail that is stored on servers elsewhere; she accessed it in the daughter’s emails;^[19] and
    3. (c)
       she accepted that the information about the emails had to be accessed via Google and it was information held by Google.^[20]

SC Smith’s evidence

26. [26]
    Senior Constable Smith was the Coomera District Electronic Evidence Technician.  In that role, he worked in the area of computers and dealt with computers a lot.^[21]  He explained his qualifications and experience as: a certified forensic computer examiner, that certification being from the International Association of Computer Investigation Specialists; he had completed the Queensland Police Service electronic evidence technician program; he had performed examinations and forensic examinations on electronic devices since at least July 2014, those examinations numbering in the “high hundreds to thousands”; he had prepared a report on every job, whether it be phone extraction or computer reports.^[22]  There was no issue at the trial that SC Smith had relevant expertise.
27. [27]
    Relevantly, SC Smith said:

    1. (a)
       there was forensic software, called Internet Evidence Finder, that can recover data from Google searches and internet history; it can reveal emails or websites visited;^[23] he used the Internet Evidence Finder software to examine the appellant’s laptop;^[24]
    2. (b)
       by reference to Exhibit 37,^[25] he explained in detail the searches made on the appellant’s computer, and what the results meant in terms of websites visited, documents sent or downloaded, and what entries meant;^[26]
    3. (c)
       he examined an HP laptop which he had been given;^[27]
    4. (d)
       he was familiar with Google account synchronisation; that was when a Google account of Gmail can be used across multiple devices;^[28]
    5. (e)
       synchronisation meant that, if an iPhone was attached to a Google account, and one searched on an iPhone, it would also show up on the web browser and Gmail history;^[29]
    6. (f)
       he explained:^[30]

“… it’s called account synchronisation.  So it synchronises the data across each different type of application.  So not only your search history, you may have on your cloud storage photos, and each device you go on you would still have access to those photos.

...

So it works the same with, yeah, your search history.  Unless you specifically turn it off, it’ll synchronise across multiple devices.”

7. (g)
   synchronisation was enabled by default, and would only be turned off by expressly selecting that option;^[31] on the laptop he examined, synchronisation was set by default;^[32]
8. (h)
   in order to see what devices were synchronised, one would go to the security settings of Google, and that would give a list of such devices;^[33]
9. (i)
   unless one turned off the setting for saving searches, Google would save them automatically in the cache; that search history can be seen across synchronised devices; the search history is attached to the Gmail account;^[34]
10. (j)
    “if you used your regular device where every time you go into Google it’s using your Google account it will automatically save that search history unless you specifically turn it on”.^[35]

28. [28]
    In cross-examination, SC Smith agreed that a search history does not show how the search was conducted or the depth of the search, and does not show whether the person searching accessed the sites searched.  What the search history shows is “what you’ve typed in”.^[36]

Objections to admission

29. [29]
    In the Crown’s opening address, the Prosecutor referred to the searches as having been done by the appellant, using a number of searches as examples.^[37]
30. [30]
    Once the Crown case had been opened, defence Counsel raised an objection to the Gmail search evidence.^[38]  It was framed this way:^[39]

“It’s apparent from the particulars that have been provided now that the way the Crown intend to rely on that is, in fact, testimonially because they wish to say, for example, in relation to “[complainant’s first name]’s revenge” that that was a search that not only appeared there but was conducted through that Gmail account on the day that it says, and they wish the inference to be drawn – it’s my client.  So they rely on it in that sense.”

31. [31]
    Defence Counsel explained that he had not understood that the search evidence was to be used to prove acts against the appellant:^[40]

“At that point he referred to Sytech.  So that’s why I understood it was – if there was going to be anything led of it was the fact that she something and that was it, not that it was going to be relied on to, essentially, prove acts against my client that are relied on in relation to the stalking because to do that, in my submission, I have to prove the records.”

32. [32]
    Defence Counsel’s contention was that:^[41]

“ … in order to rely on it the way the Crown want rely on it … they have to get to the point of … realising that when … the complainant goes to print this material some time after she sees the phone herself she’s accessing the website and data of a third party, namely the person who’s running and operating the Gmail account.  She then has to access their data and the manner in which it’s held in order to get the printout.  So my submission is to do that you need to prove the document by getting someone from the third party.”

33. [33]
    The Prosecutor indicated that an expert witness (SC Smith) was coming to give evidence as to how computers record and store search histories, and that the document was “a circumstantial piece of evidence saying it was the defendant and no-one else who executed those searches such as to find her at various points in time along the chronology …”.^[42]
34. [34]
    After some further submissions, the trial judge said:^[43]

“HER HONOUR: All right.  Mr Reilly, look, at this stage I think this is something that you can make further submissions on at the end of the case - - -

MR REILLY: Yes.

HER HONOUR: - - - depending on how the evidence unfolds.

MR REILLY: Yes.”

35. [35]
    When the appellant’s lawyers changed, and the new team took over the trial, the new defence Counsel referred to the objection that had been taken in respect of Exhibits 5 and 42:^[44]

“MR FRASER: Look, … I’ve got something to say about that at a later stage what we make of all the computer records.

HER HONOUR: Yes.

MR FRASER: I’m not overly fussed about it.  I take – I take Mr Reilly’s point.

HER HONOUR: Yes.

MR FRASER: And I’m not resiling from that.

HER HONOUR: Yes.

MR FRASER: But even if your Honour was to rule against me, my point is so what.”

36. [36]
    Ultimately, defence Counsel said no more than: “Your Honour heard me say during the course of the trial I take the position of Mr Reilly in terms of the computer evidence and … I still maintain that”.^[45]

Consideration

37. [37]
    In each case, Exhibits 5 and 42 were a printout of a computer screen or pdf of a computer screenshot showing what the complainant had personally seen on the computer.  In the case of Exhibit 42, it was a search history on the daughter’s Gmail account, accessed from the complainant’s laptop.  In the case of Exhibit 5, it was a page showing “[appellant’s first name]’s iPhone” synched to the daughter’s Gmail account.
38. [38]
    Each of Exhibits 5 and 42 were advanced as circumstantial evidence from which one might infer that it was the appellant who did the searches and synchronised the phone.
39. [39]
    In each case, the complainant gave evidence of seeing the information on the computer screen, and how she got to that screen.  She said that what she printed off was what she saw on the screen.
40. [40]
    SC Smith, a computer expert whose expertise was not challenged, gave evidence that the computer worked in the way described by the complainant.  Specifically:

    1. (a)
       synchronisation meant that if an iPhone was attached to a Google account, and one searched on an iPhone, it would also show up on the web browser and Gmail history;
    2. (b)
       synchronisation was enabled by default, and would only be turned off by expressly selecting that option;
    3. (c)
       in order to see what devices were synchronised, one would go to the security settings of Google, and that would give a list of such devices;^[46]
    4. (d)
       the system synchronises the data across each different type of application, including not only the search history, but also cloud storage photos; and
    5. (e)
       unless one turned off the setting for saving searches, Google would save them automatically in the cache; that search history can be seen across synchronised devices.
41. [41]
    There was no evidence to contradict what SC Smith said.
42. [42]
    The evidence from the complainant and SC Smith, if accepted, established that: (i) the computer recorded synchronisation with other devices automatically; (ii) the computer recorded the search history automatically; (iii) someone had synchronised an iPhone labelled “[appellant’s first name]’s iPhone” with the daughter’s Gmail account; and (iv) someone had made the searches recorded in the search history.
43. [43]
    Neither Exhibit 5 nor Exhibit 42 could establish, of themselves, that it was the appellant who synchronised the phone or conducted the searches.  But that did not mean that those exhibits were inadmissible.
44. [44]
    Recalling that Exhibits 5 and 42 were visual records of what the complainant said she saw on the computer screen, they were admissible at least on the basis articulated in R v Sitek.^[47]
45. [45]
    Further, Exhibit 5 was a record of what the daughter’s Gmail account revealed, namely that an iPhone designated “[appellant’s first name]’s  iPhone” had synchronised with the daughter’s Gmail account.  SC Smith’s evidence established, without challenge, that, unless synchronisation was turned off in the device’s settings, it would automatically synchronise: see paragraph [40] above.  There was no suggestion that anyone had turned off synchronisation in the settings.  Exhibit 5 was, therefore, admissible for the purposes of showing that one device synchronised with another device which was designated “[appellant’s first name]’s iPhone”.  Once admitted for that purpose, its further use was a matter to be considered in light of all the evidence.
46. [46]
    However, there is another basis upon which, in my view, they were admissible.  In Bevan v Western Australia,^[48] the Western Australian Court of Appeal were concerned with the admissibility of records from a mobile phone.  In the course of dealing with that, the Court referred to the admissibility of records from scientific or technical instruments and computers.  They said:^[49]

“[29] There is a rebuttable presumption at common law as to the accuracy of “notorious” scientific or technical instruments which, by general experience are known to be reliable.  Accordingly, readings from watches, clocks, thermometers, speedometers, and “a variety of other ingenious contrivances for detecting different matters” can be received into evidence without specific proof of their accuracy (Porter v Kolodzeij [1962] VR 75 at 78).  This presumption can also apply to scientific or technical processes and things such as chemical tests to detect bloodstains (Crawley v Laidlaw [1930] VLR 370 at 374), recordings of radar echoes showing movements of ships (Owners of Motor Ship Sapporo Maru v Owners of Steam Tanker [Statute] of Liberty [1968] 1 WLR 739) and printouts of computerised data (Mehesz v Redman (No 2) (1980) 26 SASR 244; R v Weatherall (1981) 27 SASR 238).

[30] The presumption amounts to judicial notice of the fact that an instrument, device or process which is in general use and known to be trustworthy, is prima facie accurate.  It follows that when evidence from a new type of scientific instrument or process is adduced for the first time, there must be proof of its reliability and accuracy (Porter v Kolodzeij at 78; and Fa v Morris (1987) 27 A Crim R 342 — an early case of satellite navigation establishing the position of a ship).  As and when the reliability of a new instrument becomes more generally known, the law permits the shorthand of judicial notice, and specific evidence of accuracy is unnecessary (Fa at 348–349).

[31] When specific evidence of the accuracy of a new instrument is required, this need not come from the manufacturer.  It is sufficient that the expert who uses it can say that it is an instrument which is accepted and used by competent persons as a reliable aid in the carrying out of the scientific procedure in question, and that he so regards it (Mehesz at 247).”

47. [47]
    In this case, there was no issue that the computer used by the complainant and the iPad used by the daughter was other than trustworthy and accurate for what it was relevantly used for, that is, the automatic recording of synchronised devices and the search history.  Nothing was suggested to SC Smith that might lead to a different conclusion.  Thus, the case is one where the trial judge was entitled to proceed on the same basis as that referred to in Bevan:^[50]

“[34] Mobile phones and laptop computers are ubiquitous items which have been in common use in the community for a number of years.  Most people (including school children) are very familiar with the processes of sending and receiving text messages on mobile phones, and of downloading data from computers.  It is also a matter of general knowledge and experience that these processes are accurate in the sense that the data displayed (or printed out) replicates what is actually there.  It follows that mobile phones and laptop computers each fall into the category of “notorious” scientific instruments.”

48. [48]
    Since Exhibits 5 and 42 were only tendered as circumstantial evidence going to the question whether the appellant was the one who synchronised the phone with the Gmail account, and whether it was the appellant who had conducted the searches, they were admissible on that basis.
49. [49]
    Mr Jones accepted that Exhibit 5 was evidence that someone synchronised an iPhone with the designation “[appellant’s first name]’s iPhone” to the daughter’s iPhone.^[51]  However, his point was that, in the absence of evidence being called to establish how such things were recorded and dealt with by Google, it was not original evidence of that synchronisation.
50. [50]
    In my view, that mistates the limited basis upon which Exhibits 5 and 42 were tendered.  They were tendered as circumstantial evidence which, with other evidence, might establish that it was the appellant who synchronised the phone and did the searches.  That is the basis upon which the learned trial judge admitted and used them.^[52]
51. [51]
    Further, once admissible, and thus admitted to show that someone synchronised an iPhone with the designation “[appellant’s first name]’s iPhone” to the daughter’s iPhone, it was a question of what other use could then be made of Exhibit 5.  The learned trial judge treated it as circumstantial evidence which was to be weighed together with other evidence such as Exhibit 42.

No ruling on Exhibit 5?

52. [52]
    The appellant submits that no ruling was made on the admissibility of Exhibit 5.  In my respectful view, that is a misstatement of what occurred.  The trial judge admitted that document into evidence but noted the objection as to what it might prove.^[53]  The passage where the document was admitted into evidence is revealing:^[54]

“Okay.  And the rest of the document speaks for itself.  Your Honour, I tender the single-page print-out from [the daughter’s] Gmail - - -

MR REILLY: I take the same issue with this as the other one.

HER HONOUR: Yes.  Well, it’s – but you recall seeing that, don’t you? And your argument is just as to whether it’s admissible because of evidence of - - -

MR REILLY: That it can prove the contents.

HER HONOUR: Yes.  I understand.  All right.  So that will be marked exhibit 5.

EXHIBIT #5 ADMITTED AND MARKED

HER HONOUR: With the objection noted.  Yes.”

53. [53]
    The question from the trial judge “… but you recall seeing that, don’t you?” was plainly directed at the complainant.  It seems clear that her Honour was proceeding on the basis that Exhibit 5 was to be admitted as a record of what the complainant had seen on the computer.  It was admitted on that basis, but with a reservation noted; namely that the defence might wish to argue what it actually proved.

Delay in ruling on Exhibit 42?

54. [54]
    The sequence revealed in paragraphs [29] to [34] above show that defence Counsel agreed that the question of the admissibility of the search records (which became Exhibit 42) could be deferred to the end of the trial.  There was no subsequent application to have that issue determined before the close of the prosecution case, the calling of the appellant, or even before addresses.
55. [55]
    The deferral of the ruling was in circumstances where the prosecution had told the trial judge that an expert witness was to be called to give evidence as to how computers record and store search histories.  Further, the prosecutor had submitted that the search history document was “a circumstantial piece of evidence saying it was the defendant and no-one else who executed those searches”.  As the objection had been raised prior to any witness giving evidence, it was not unreasonable for the trial judge to defer the ruling until evidence had concluded.
56. [56]
    Mr Jones’ submission was that it was a fundamental requirement of a criminal trial that the appellant was entitled to know at the closing of the Crown case what the evidence against him was.  Further, it was submitted that was a requirement that could not be waived by Counsel.  For that proposition, reference was made to Shaw v The Queen^[55] and R v Soma.^[56]
57. [57]
    I do not consider that submission should be accepted.  Each of Shaw and Soma deal with the Crown case being split.  That was not the case here.  Rather, the defence knew that the Crown sought to rely upon Exhibit 42, and the only question was as to how it could be used.  Counsel for the defence accepted the position that the Crown sought to rely upon it as circumstantial evidence that might show the appellant did the searches, that a computer expert was to give evidence in due course, and that it was appropriate to defer any further submissions and ruling until the end of the trial.
58. [58]
    Defence counsel must have anticipated that the appellant would be cross-examined on Exhibit 42 yet was content to conduct the trial on the basis that the final ruling was deferred.  In my view, the appellant is bound by the forensic decision made by his counsel.

Impact of Exhibit 42 on the case?

59. [59]
    The delayed ruling on Exhibit 42 did not disadvantage the appellant’s case.  Before he gave evidence, his new team of lawyers took over the case and were plainly aware of what had transpired under the earlier team.^[57]  No ruling on Exhibit 42 was sought before the appellant gave evidence.
60. [60]
    It was inevitable that appellant would be cross-examined on Exhibit 42, and he was.  He denied that the search history had anything to do with him.  He advanced an explanation for the search “[complainant’s name] Revenge”, namely that it was the name of a television show that the daughter watched.  Indeed, he went so far as to assert that he could tell that the search history document was fabricated.^[58]
61. [61]
    In address, the prosecutor relied upon Exhibit 42 to establish that the appellant had a motive and was making efforts to locate the complainant.^[59]  On the complainant’s account, she only saw the search history on 12 May 2015, so the searches must have been done prior to that.  Of the particularised acts of stalking relied upon at the end of the trial, only No 1 occurred prior to 12 May.
62. [62]
    It is evident from the trial judge’s Reasons that the use of Exhibit 42 was restricted to the searches where the only reasonable inference was that the appellant conducted them.^[60]
63. [63]
    Consequently, even if Exhibit 42 was wrongly admitted contrary to the conclusion reached above, it only affected one of the many acts of stalking.  Thus, there is no reasonable basis to conclude that its admission caused a miscarriage of justice.

Other grounds

Ground 4

64. [64]
    Ground 4 contends that the trial judge erred in law in directing herself it was open to find that the appellant caused “detriment” within the meaning of s 359A(a) of the Code in circumstances where the prosecution case was expressly limited to “detriment” within the meaning of ss 359A(c) and (d) of the Code, to the exclusion of “detriment” within the meaning of s 359A(a) of the Code.
65. [65]
    As the trial judge recognised,^[61] the prosecution focussed on detriment as defined in s 359A(c) and (d), but her Honour noted that the definition of “detriment” used the phrase “includes” and was therefore not an exhaustive list.  Further, the prosecution did not limit the detriment to only those matters falling under s 359A(c) and (d).  As noted by the trial judge, the particulars relied upon included the proviso: “Any further matter the jury considers a detriment in the circumstances”.^[62]  That left it open to the trial judge to consider other parts of s 359A.
66. [66]
    Further, the prosecutor addressed on the basis that the relevant detriment was a cumulative effect of a number of acts.^[63]  Those acts included some coming directly under the scope of “detriment” in s 359A(a), such as sleeping with a hammer under her pillow and wearing a domestic violence monitor around her neck.  The trial judge’s finding reflect an appreciation of the way the case was run.^[64]  In my view, it is plain that the findings of “detriment” under s 359A(a)^[65] were additional aspects that were also found to be capable of amounting to “detriment”.
67. [67]
    A review of the record does not support the assertion that there was an agreement to limit the detriment that might arise.  As noted above, the case was conducted with a particular focus, but with express recognition that it was not the sole “detriment” that the trial judge could rely upon.
68. [68]
    This ground fails.

Ground 5

69. [69]
    Ground 5 contends that the trial judge erred in finding, without evidence:

    1. (a)
       that the appellant and the complainant had been married; and
    2. (b)
       that, in October 2014, the appellant and the complainant renewed their lease at Seabreeze for six months.
70. [70]
    Both of those findings were made.  There is no evidence that the appellant and complainant were married.  However, given the issues in the trial, it is an inconsequential finding.
71. [71]
    There was evidence that the Seabreeze lease may have been renewed.^[66]  That was a sufficient basis to make that finding, though it was also inconsequential to the issues in the trial.
72. [72]
    This ground fails.

Ground 1 – unreasonable verdicts

73. [73]
    The legal principles applicable where the ground is that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[67]  Dansie reaffirmed the approach set out in M v The Queen.^[68]
74. [74]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[69]

“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M.  The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

[9] The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”.  The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence.  That was the point of the carefully crafted passage in which their Honours stated:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground].  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

75. [75]
    The High Court also said:^[70]

“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time.  M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment.  Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.”

76. [76]
    In Pell v The Queen,^[71] the Hight Court said:

“[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

77. [77]
    In R v Miller,^[72] this Court said:

“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.  The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

78. [78]
    This ground was advanced by the appellant in his self-represented capacity.  There were many pages filed in the form of argumentative affidavits which, the appellant conceded during the hearing before this Court, represented his arguments on this ground.  Most of those affidavits were relied upon in support of the appellant’s applications to adduce further evidence.
79. [79]
    Ultimately, the appellant confirmed that his final affidavit,^[73] produced on the morning of the hearing before this court, contained his arguments.^[74]  That affidavit was 64 pages long; with its exhibits, about 729 pages.  That affidavit also proceeded on the basis that it supported the applications to adduce further evidence.
80. [80]
    There are multiple points raised in the Final Affidavit, so much so that in some cases they need to be dealt with by category.  Those concerning phone and iPad data depend upon the grant of leave to adduce further evidence.

Phone evidence withheld

81. [81]
    The appellant sought leave to adduce evidence from the records on his phone which, he said, had been seized by police and not returned during the trial.  The central submission underlying all these points was that, because he had no access to his phone, evidence from it could not have been adduced at the trial.
82. [82]
    There is, in my view, no proper basis to grant leave to adduce that evidence.  Assuming for present purposes that it is correct that the appellant’s phone had been seized and not returned, that does not justify the grant of leave to adduce evidence from it.  At the time of the trial, the appellant was plainly aware that his phone had not been returned.  He could have sought its return, or compelled its production, either by raising the issue with the Crown or by subpoena.  None of those things were done.
83. [83]
    The points sought to be made from the phone records were as follows.

Tracking data

84. [84]
    In respect of one of the charged incidents of stalking, it was contended that the phone tracking data showed the appellant was in a different location from that at which the complainant said she saw him at about 10 am.^[75]
85. [85]
    There were 12 acts particularised and found to constitute the stalking offence.  Of them, only two involved the complainant sighting the appellant.  They were act #25 on 8 September 2016 and act #26 on 9 September 2016.^[76]  The appellant’s point concerns only act 26.
86. [86]
    The learned trial judge summarised the state of the evidence as to act #26.^[77]  It was not a positive sighting of the appellant but based on the complainant’s knowledge of the appellant’s stature and distinctive walk.  Critically, it was supported by relevant circumstantial evidence, namely a PoliceLink phone call made by the appellant that morning,^[78] which was consistent with the appellant watching the complainant, and which included details that could only have been known if he was watching her.  As well, there were four Crime Stoppers submissions made by the appellant at the same time which detailed the complainant’s movements.
87. [87]
    The data referred to by the appellant does not show that he was “static with the same GPRS location at home”.  All it shows is that the same GPRS location was recorded by the phone during the morning on 9 September 2016.  It is consistent with the appellant being at Biggera Waters, as the trial judge found.
88. [88]
    In any event, it seems that there is reason to think that the appellant was aware of the existence of such data during the trial:

    1. (a)
       the appellant swore that he saw “[a] log of Coopers … in court over Lewis’ shoulder from the witness box”;^[79] and
    2. (b)
       on 2 August 2022, the appellant emailed the Crown, asking about the “actual data of … IMEI tracking (referenced by Cooper and Lewis, I saw it in the diaries used in court at my trial)”.^[80]
89. [89]
    If that be so, there was no reason why that material could not have been sought then.

Dr Varghese’s report

90. [90]
    The appellant contended that the Crown wrongly withheld a report from a psychiatrist, Dr Varghese, as to the mental state of the complainant.  He sought to have a report of Dr Varghese admitted on the basis that it established that the complainant suffered from a “severe psychological deviance”.
91. [91]
    The appellant said the complainant had access to his vehicle, computers, iPad, phones, home and wi-fi.  It was asserted that admission of the report would have enabled the appellant to run an argument that the complainant: (i) was in fact the source of many of the phone calls; (ii) fabricated her own evidence, and (iii) may have acted in concert with another person ([Ms W]), “who fled back to the complainants [sic] home town of Grimsby UK, on the week of the appellants arrest”.^[81]
92. [92]
    That was said to found an argument that revealed the complainant to have been a liar in the UK Family Court proceedings.  The appellant sought to argue that there was some relevance in matters relating to the complainant’s evidence given in the UK Family Court, and the complainant’s non-compliance with UK Family Court orders.^[82]  In particular, he sought to argue that the complainant misled the UK Court, and that was a matter that would have impacted upon both Dr Varghese’s opinion and the complainant’s credibility during the present trial.^[83]
93. [93]
    The apparent attack was on several bases, all of which were a form of argument to show that the complainant had the propensity to mislead the trial court.  One was to show that the complainant lied to the UK Family Court, and therefore had that propensity.  The second was to show that the assumptions underpinning Dr Varghese’s report were wrong, and thereby the opinion in the report could be used to show that the complainant had that propensity.  The third was an allied point, namely to show that the complainant lied to Dr Varghese.
94. [94]
    There are at least two fundamental problems with this point as far as the report from Dr Varghese is concerned.
95. [95]
    The first is that, as the appellant ultimately accepted, Dr Varghese’s report was, in fact, disclosed to the appellant’s then lawyers in connection with an earlier prosecution of the appellant for child stealing and related offences.  It was an exhibit in that brief of evidence which was disclosed to the appellant, via his lawyers, on 23 May 2016.^[84]  That being the case, the appellant knew of the report’s existence during the trial, and it could have been retrieved.  It is not the case that the report was withheld.
96. [96]
    The second is that Dr Varghese did not express the view the appellant relies upon except on a conditional basis:

“For the purposes of this report, I am assuming the following:

1. (i)
   The mother has not made any threats to kill the child … or other threats to harm him and that there is no reason to suspect that the child is not being well cared for.
2. (ii)
   The father's claim that the reason his contact with the child was ordered to be supervised in the first place was a result of the mother fabricating emails and other communications from him to herself and others, such as to show him in a very poor light is unlikely to be correct.
3. (iii)
   The father's assertion that he had permission to pick up the child … from the child care centre on the basis of the alleged email sent by the mother to the father's brother …  is also incorrect.

Obviously if my assumptions are incorrect, then my report and opinion would be invalid and the father would deserve an apology.  Moreover attention should then be focussed on the mother's personality with her behaviour as alleged indicating significant psychopathic deviance.”

97. [97]
    The appellant sought to rely upon the last sentence of the passage quoted.  However, unless the assumptions were proven the opinion was inadmissible.  Proof that the expressed assumptions were not correct would not establish the contrary set of assumptions required to underpin the contrary conclusion.  Cross-examination of Dr Varghese would not establish whether the assumptions were true or not.
98. [98]
    In any event, the provisional opinion was as to the attitude of the complainant in relation to issues in a family court setting, and no further.  Dr Varghese made the report, on instructions from the Independent Children’s Lawyer, directly to the Family Court.  Nothing in Dr Varghese’s report went so far as to express an opinion (if he even could or would do so) as to whether the complainant might actually fabricate evidence, let alone in a broader context.
99. [99]
    As for the point otherwise, there is, in my view, no basis to grant leave to adduce the further evidence, especially in the form of the various exhibits from the UK proceedings.  The appellant was plainly aware of the content of those proceedings, having been a party to them.  All the material existed at the time of his trial.  Had he wished to make use of them it was within his power to do so, within whatever constraints might apply given the nature of the UK proceedings.
100. [100]
     The untenable over-reach in the appellant’s contentions on this point can be seen in the submission that “the DPP withheld evidence relating to [the complainant] not caring for [her daughter], and using fraud to gain custody of her”, and a particular exhibit contained:^[85]

“A series of emails to show [the complainant] was being investigated by UK authorities for manipulating the UK Family court via Fraud to removing [sic] her other child from his father.  These included emails to show she lied in the criminal court and other jurisdictions about such, and instantly broke all orders.”

101. [101]
     The extreme nature of what the appellant seeks to contend is demonstrated by paragraph [22] of the Final Affidavit:

“I think when one considers the above properly, one can only ascertain that [the daughter] was removed from the UK against her best interests.

a. [The complainant] had personal reasons for needing to leave the jurisdiction of the UK and did everything in her power to flee.

b. Nothing was going to stop her leaving the UK.

c. [The daughter’s] best interests and the relationship with her father meant nothing to [the complainant].

d. She planned a pregnancy whilst telling me she was using contraception.  She did not want love or cherish [the son], he was just born to help her depart the UK.

e. When I said I am leaving the UK or did not submit to her will whilst pregnant, there where constant threats to [lose/kill] the unborn baby, including lying about or actually throwing herself down the stairs.

f. When in Australia, when I wanted to leave [the complainant] or did any act that would result in her returning to the UK the same issue unfolded.  [The complainant] had no issue harming or threatening to harm [the son], to prevent her needing to depart.

g. She fabricated a story to the UK courts to get to Australia.

h. She fabricated stories to Australian courts to remain here.

i. Given the above, I think it would be unreasonable not to have Dr Varghese consider if there is a real and significant risk to [the son].  To include if [the complainant] understands the needs of a child, or whether she would harm [the son] if he got in the way of her desires.”

102. [102]
     It seems that the appellant intended to revisit issues that concern the Family Court proceedings, rather than anything relevant to the issues at his present trial.
103. [103]
     In any event, the point goes nowhere.  All of the matters raised as to the complainant’s allegedly having misled the UK Court were known to the appellant at the time of the trial.  They could have been raised in cross-examination.  Given the issues in the present trial, one can readily understand the forensic decision made to leave those matters alone.  It could hardly be doubted that the complainant would have denied misleading the court, and proof to the contrary was a risky exercise that would have cost considerable time and effort for a doubtful outcome.

Events at the complainant’s home – 30 March

104. [104]
     The appellant raised a point concerning one of the acts of stalking where the complainant said she saw the appellant at her home.^[86]  The thrust of the contention is that:

     1. (a)
        the complainant swore^[87] that, on 29 March, an alarm was activated on an iPad used by their child, and that the appellant was attempting to locate them “by using the “Find my iPad” function, which I have now deactivated”;
     2. (b)
        the “Find my iPad” application does not alarm when someone is looking for a location;
     3. (c)
        on 30 March 2015, while the appellant was in the city at a Family Court Dispute Resolution meeting, his iPad was stolen from his car (which was at his home); his car could only have been accessed using the spare keys in the complainant’s possession;
     4. (d)
        the complainant had denied logging into the appellant’s Apple accounts or using his passwords or usernames; however, the “Find My” application is so entrenched that it cannot be turned off without knowing the Apple ID and passwords; the complainant did, in fact, know the appellant’s Apple ID and passwords;
     5. (e)
        the complainant continued to deny using the appellant’s Apple ID and passwords, saying at the trial that she realised the iPads were linked when “[the appellant] located me at [XX]”;
     6. (f)
        the complainant said that that child’s iPad was then switched off and left in a drawer until the police took it;
     7. (g)
        the complainant maintained her denial that she had logged into the appellant’s accounts, Facebook or messaging accounts, but, in January 2020, the complainant produced photos of her using the appellant’s iPhone 5 “to impersonate me on Facebook messenger and talking to one of my old girlfriends and photos’ of her impersonating me on the iPad sending messages to my friends”;
     8. (h)
        the complainant also denied having stolen the appellant’s iPad; and
     9. (i)
        she said she purchased the child’s iPad in the UK, but the appellant set it up; she exhibited a receipt for its purchase, dated 9 December 2011; by a series of inferences concerned with the comparative financial circumstances of the appellant and the complainant, the receipt could have been fabricated by the complainant, and she “has simply (fraudulently) removed his card number and placed the untraceable “cash” in it’s [sic] place, and has switched the name on the receipt”.
105. [105]
     As is evident from that recitation, the contention is simply another way of arguing that the complainant should not have been believed at the trial.  It relies upon several leaps of faith in the interpretation of events, none of which depends on evidence not available at the time of the trial or withheld from the appellant.  In fact, the appellant volunteered this evidence during his cross-examination.^[88]
106. [106]
     Further, the nature of the appellant’s approach to this (as well as other) points, and its irrelevance to the ground advanced (unreasonable verdicts), can be seen from this part of the argument:

“27. …

b. [The complainant] says that she turned of the iPad on the 30^th of March 2015, and left it in a draw [sic] (despite moving houses) until giving it to police after mt [sic] arrest and visa cancellation of the 2^nd of December 2016.

c. One must question, if she didn’t need or use it.  It was clearly mine, and only ever registered to me.  Why did she not simply return it, when police asked her to.  Instead she fabricated a receipt.

i. One can only conclude she was either still using it to impersonate me after the 30^th of March 2015.  Or

ii. She was worried it could be used to prove she had been impersonating me.

28. I only mention the iPad to show, that [the complainant] located the iPad in my car, using an iPhone 5, I had left for [the son].  This also meant she always knew where my personal device was, and hence me.”

107. [107]
     That passage reflects a line evident from the appellant’s oral address, namely that he believed that it was the complainant who was stalking him, and not the other way around.  The disconnect between that and the reality of the issues and findings at the trial is self-evident.

Fabricated Gmail search history

108. [108]
     The appellant sought to advance a contention that the complainant had fabricated the Gmail search history tendered at the trial as Exhibit 42.^[89]  In support of this contention, the appellant pointed to what he said were discrepancies in what Exhibit 42 showed and where the appellant was on various dates.
109. [109]
     Central to this proposition was a photo of a screen (attached to the appellant’s final affidavit) which showed someone signed in to the daughter’s Gmail account from Brisbane on 7 May 2015, and on 10 May 2015.  It said: “[appellant’s first name]’s iPhone Last synced May 10, 2015 at 10.34AM”.^[90]  However, the appellant said he was working remotely at those times near [a regional town], a fact which was shown by records subpoenaed by Police, namely his work “In Vehicle Monitoring data”.^[91]  From this, the appellant deduced that the synchronising must have been the daughter using the appellant’s Black iPhone which was still in the complainant’s possession.
110. [110]
     The appellant went on to theorise that the complainant had fabricated the screen shots in Exhibit 42.  Central to this part of the theory was that the screen shots showed that various applications (such as Adobe DC and PDF editing, Adobe Illustrator) were open, as well as a Google Maps Tab, when the screen shot was taken.  The appellant suggested these were tools that would enable the screen shots to be fabricated.
111. [111]
     The appellant went on to say why the Search History was “a good fake, but a fake”.^[92]  For this, the appellant pointed to the varying number of searches on each screen shot, varying between 510 and 509 and a low as 506.
112. [112]
     The central difficulty with this proposition is that no allegation of such fabrication was put to the complainant during her evidence.  That was so notwithstanding that, on 22 July 2020, the trial was adjourned when the lawyers representing the appellant withdrew, and the trial was not resumed until 28 September 2020, two months and six days later.  Ample time was available for instructions to be given regarding any alleged fabrication to have been given, even if they had not already been given.  And the Crown made it clear that witnesses would be recalled if necessary.^[93]  As it was, the complainant was recalled, and nothing was suggested to her about fabricating the screenshots in what became Exhibit 42.  Whilst there were suggestions of the first set of lawyers not putting what had been instructed,^[94] no such suggestion was made in respect of the conduct of the replacement team.
113. [113]
     By contrast, the appellant advanced that theory in his own evidence.^[95]  Plainly, he had all that he required by way of evidence to formulate that theory.  To the point, the screenshots were the principal pieces of evidence from which the discrepancies could be seen, and they were tendered in the trial.  Moreover, the appellant had the complainant’s statement which set out her version of what the screenshots showed and how they were procured.
114. [114]
     All that this Court is left with is the appellant’s own conjecture as to the significance of the varying numbers and entries.  It is not sufficient to overcome one particular point as to the searches, which the appellant’s approach ignores.  The complainant denied doing the searches herself.  In truth, the appellant’s theory does not suggest she did, but rather that she fabricated them.  That leaves the only other possible searcher as being the daughter.  However, the searches include many as to which it is almost impossible to conclude they were done by the daughter, such as:

     1. (a)
        “officer of the company definition”, “solicitors ombudsman england”, “best family law solicitors uk”, “best family law solicitors melbourne”, and “tyrepower [a regional town]”;^[96]
     2. (b)
        “gold coast legal aid”, “helensvale waste transfer station”, and “border protection”;^[97]
     3. (c)
        “gold coast family lawyers”;^[98]
     4. (d)
        “How To Stalk (find) People In Australia”, “abusive mothers”, and “mother beasts child”;^[99]
     5. (e)
        “Emotionally Abusive Mothers” and “Q1 bookings”;^[100]
     6. (f)
        “commonwealth bank [a regional town]”;^[101]
     7. (g)
        “supervised child contact centres”;^[102]
     8. (h)
        “hilton surfers paradise apartments for rent” and “Workplace and Pre-Employment Drug and …”;^[103]
     9. (i)
        “lupus tests centre uk”, “floor to ceiling ball drills”, and “what is domestic violence queensland”;^[104]
     10. (j)
         “solicitors ombudsman”, “queensland rego check”, and “LONG TERM RENTALS | [XX] Surfers Paradise”;^[105]
     11. (k)
         “cost of supervised contact on child maintenance” and “commonwealth court form”;^[106]
     12. (l)
         “Online estimators – Department of Human Services”, “Child Support Calculator – Separated parents”, “how to lodge a dvo”, and “how to avoid child support australia”;^[107]
     13. (m)
         “Individual Docket System – Federal Court”;^[108]
     14. (n)
         “what will happen if I take my children against a family court order”, “Duty of disclosure - Family Law Courts”, “how do I get financial discloser [sic] from ex”, and “Do I have to reveal my bank statements”;^[109]
     15. (o)
         “My ex-partner has taken our children”, “what if I take my children against a court order”, “457 visa cancellation process”, “how can I stop someone getting a 457 bisa”, “VIC – When to File for Divorce on 457”, and “what happens if my 457 visa is canceled”;^[110]
     16. (p)
         “Get a passport for your child – GOV UK” and “replace lost uk passport”;^[111]
     17. (q)
         “replace lost child passport uk”, “Get a passport urgently – GOV UK”, “Get a passport for your child – GOV UK” and “pure dating app”;^[112] and
     18. (r)
         “how do i get financial disclosure for domestic violence evidence” and “airport watch list family law”.^[113]
115. [115]
     The learned trial judge came to much the same conclusion, listing the sites by reference to their link to the appellant:^[114]

“[40] On the other hand, the content of some of the other searches in the search history are such that the only reasonable inference (accepting the complainant’s evidence on this issue) is that the defendant conducted at least the majority of searches recorded on the search history.  Some examples of those searches are:

• “UFC 189: Aldo vs.  McGregor – Ultimate …”, “mcgregor vs aldo fight” (mixed martial arts fight); and “boxing weight divisions”;
• Searches for pornographic sites;
• “qgc address” (where the defendant worked);
• “tyrepower [a regional town]” (en route to where the defendant worked at [a regional town]);
• “commonwealth bank [another regional town]” (near where the defendant worked);
• “Men’s health – Gold Coast Medical Centre”;
• Numerous searches for family lawyers
• “things that reduce child support”;
• “how can i stop someone getting a 457 visa” and “457 visa cancellation process”.  An email relating to the same subject was located on the defendant’s work computer.  The defendant accepted in evidence it is possible he sent it, although he couldn’t recall.
• “How To Stalk (find) People In Australia”, “how to pay to find someone”, “find out where someone lives”, and “find last place ipad was used”;
• “what if I take my children against a court order”;
• “[XX] Early Learning Centre” (where the complainant worked) and “[XX]” (an organisation where the complainant once worked);
• “Reporting child abuse - child safety” and “abusive mothers”;
• “replace lost child passport uk”, “Get a passport for your child” and “Get a passport urgently”.”

116. [116]
     Further, many of those searches do not suggest the complainant was likely to have made them.  To the contrary, in the circumstances they fit what the appellant might have wanted to know.  In fact, the appellant said during cross-examination that he had researched “heavily in what [he] could do” with respect to his concerns about the apprehended violence by the complainant towards their son.^[115]
117. [117]
     In my view, this attack depends upon unsubstantiated facts, a tenuous series of inferences, and confronts such compelling inferences from the nature of the searches themselves, that it goes nowhere to satisfying me that the jury could not have accepted the complainant’s evidence as to what Exhibit 42 revealed, and her non-involvement in the creation of the searches.

Points made orally

118. [118]
     In his oral address, the appellant made a number of additional points, principally asserting that he had been denied a proper trial because evidence was withheld from himself and his lawyers.  This referred to the following examples, where I have briefly stated why I consider the point is misconceived:

     1. (a)
        Dr Varghese’s report; the appellant was interviewed for the purposes of making that report; he knew of its existence, and it was provided to the lawyers acting for him in a previous trial; its contents are irrelevant to the present issues;
     2. (b)
        Exhibit 42 had been fabricated by the complainant; the reason why nothing of that kind was put to the complainant was because his lawyers said “that they didn’t want to argue it wasn’t genuine, because they considered it was out, and it was never going to be in”; there was no affidavit to that effect, and it is contrary to the way the trial proceeded; I would not be prepared to act on mere assertion by the appellant;
     3. (c)
        by reference to his employment IVMS records,^[116] he could not have been in Brisbane on the day the synchronising occurred; these records were always available to the appellant, as they were subpoenaed by the police;
     4. (d)
        by reference to subpoenaed records,^[117] the complainant was wrong to say that Apple told her the recovery email address had changed; this Apple history records the registration of a device as at 13 December 2014; the record merely provides a highly debateable point that went only to the complainant’s credit, if anything at all;
     5. (e)
        by reference to Ex KAB-06,^[118] it could be seen that the DPP had changed a date on a document used at trial; the point was that the date on the document used at the trial was different from the date on the same document in the trial brief; this was said to constitute bullying because the trial judge prevented him from showing the date had changed; the transcript does not support that;^[119] the trial judge intervened when the appellant’s answers were non-responsive; and
     6. (f)
        a Google record, which was a document by which the appellant said he might show fabrication by the complainant;^[120] at first, the appellant said it was withheld, then he said he tried to argue the document in court “and it got pulled from me”; the transcript does not support that assertion.
119. [119]
     The balance of the oral submissions consisted largely of bare assertions of misbehaviour by the police or DPP in withholding evidence, or that the complainant was fabricating evidence, or that the complainant was an unmitigated liar.  None rose above irrelevant assertion.

Unreasonable verdicts

120. [120]
     No specific contentions were made in respect of the unreasonable verdict ground beyond those dealt with above.  Notwithstanding that, the authorities require a review of the whole of the evidence.

Evidence at the trial

121. [121]
     The main evidence as to the acts of stalking came from the complainant herself.  She detailed the background of the relationship between herself and the appellant, the birth of their son, how they^[121] came to reside in Australia having moved from Grimsby in the UK, and the deterioration of their relationship.  She described the appellant at the end of the relationship:^[122]

“… our relationship basically broke down.  He was very aggressive and abusive in the way that he would talk and talk to me and the children, and, you know, I did try to go to counselling, and we did go to counselling, and, yeah, it just kind of didn’t work.”

122. [122]
     The complainant also detailed what the situation was in relation to the ownership and use of the iPhones, iPads, and related devices in the home.  Specifically, in 2015/2016:^[123]

     1. (a)
        the appellant was skilled in the use of technology; he had an iPhone;
     2. (b)
        the complainant was a marketing manager with a company called [name of company];
     3. (c)
        the daughter (aged 12) had an iPhone, and an iPad (which the appellant had set up); the complainant set up the daughter’s Gmail account, and knew the email address and password;
     4. (d)
        the son (aged three) had an iPad which the appellant had set up; and
     5. (e)
        the complainant had an iPhone which she had set up.
123. [123]
     The complainant explained that, when she and the children separated from the appellant, the children’s iPhone and iPads went with them.^[124]
124. [124]
     The general nature of the charged acts of stalking were correctly summarised by the learned trial judge:^[125]

“[3] The prosecution case is that between 27 March 2015 and 3 October 2016, the defendant carried out a number of acts against the complainant that are said to constitute stalking.  The alleged acts include but are not limited to: making intimidating phone calls to the complainant; attempting to locate the complainant and their son; following the complainant; making false complaints to police about the complainant; and planting drugs in the complainant’s car.

[4] Another of the acts of stalking identified by the prosecution relates to a number of anonymous online and telephone complaints (“submissions”) to PoliceLink and Crime Stoppers which the prosecution allege were made by the defendant.  The submissions accused the complainant of being a drug dealer, having a gun, hiding drugs in her car and other false accusations.  The defendant denied being the author of most of the submissions when spoken to by police.”

125. [125]
     What follows below is a summary of the complainant’s evidence in respect of the charged acts.  It has been taken from my own review of the complainant’s evidence, but I have also had regard to the findings of the learned trial judge in that respect, as they very accurately set out the relevant evidence.
126. [126]
     Some of the acts particularised in the stalking charge were constituted by admitted phone messages, emails, or calls by the appellant and, therefore, the fact that they occurred did not depend on any assessment of the complainant’s credibility.  In that category were:

     1. (a)
        act 1 concerned seven voicemail messages left between 27 and 29 March 2015; the complainant identified the appellant’s voice, and the appellant admitted he made the calls; the content accused the complainant of being an  “abusive bitch”, an “abusive animal”, and an “abusive cunt”, linked to assertions that the complainant may have harmed their son; the complainant said the voicemails made her terrified of the appellant and what he was capable of doing;^[126]
     2. (b)
        acts 11 and 12 concerned emails sent by the appellant to the complainant’s lawyer on 13, 14 and 21 April 2015, threatening to “intervene” to protect the son; the emails were shown to the complainant, who said she felt terrified at the threats; she described the protective measures she took as a result, including having cameras around her house, using bits of wood to lock the doors, sleeping with a hammer under her pillow, and maintaining a speed dial to Triple 0 on her phone; she also moved the son to a different child care centre because it had fingerprint access and admitted only registered persons; she also broke her lease twice, moving to secure housing;
     3. (c)
        acts 22 and 25 concerned the seven Triple 0 calls made by the appellant on 8 September 2016; the complainant identified the appellant’s voice; she identified the car she used, her own appearance, and detailed the routes taken by her on the day in question, linking all or most of them to the places and things named in the Triple 0 calls; later that afternoon when she was driving to pick up her daughter, the complainant saw the appellant’s car indicating to turn into the daughter’s school around 3.30 pm; although the appellant had his indicators on, he did not actually turn in to the car park; in cross-examination, the complainant maintained she saw the appellant’s car indicate to turn into the carpark; however, this was not corroborated by car camera footage tendered; she also did not see who was driving the vehicle; she drove straight to the Runaway Bay Police Station to report the matter; when she arrived at the police station, she saw the appellant’s car drive past her and pull into a shopping centre; as a result of seeing him, she felt scared and concerned something else was going to happen; in cross-examination, car camera footage of the complainant at the police station was shown; the complainant was asked why she did not turn the camera around to record the appellant; she said she was in a panic; it was put to the complainant that none of that happened, and she disagreed; she agreed she did not see who was driving the appellant’s car when it passed her at the police station; the complainant moved her daughter to a different school because her daughter was too scared to remain at the original one;
     4. (d)
        the Triple 0 calls were played to the complainant on 13 September 2016; as a result, she said she felt scared and worried because she was questioning the appellant’s state of mind; and
     5. (e)
        act 23 concerned a call to PoliceLink on 9 September 2016; the complainant identified the appellant’s voice.
127. [127]
     As to the other specific acts particularised in the stalking charge, the complainant gave detailed evidence of each:

     1. (a)
        act 3 was an occasion on 30 March 2015 when the complainant said she heard (but did not see) the appellant near her house late at night; she saw the appellant’s car; she called police and, when they arrived, the appellant’s car drove off; cross-examination explored various discrepancies between her oral account and a previous statement, and whether there were trees obstructing her view; she maintained that the appellant was there, that she heard his voice and saw his car; she said she panicked, left the house to stay with a friend, and later moved house;
     2. (b)
        act 7 occurred on 14 May 2015; the police asked to interview her daughter in relation to an allegation by the appellant that the complainant had physically abused her; the complainant was upset at the call but took her daughter in for the interview; no charges were laid after the police interviewed the daughter; at the time, Family Court proceedings between the appellant and the complainant were ongoing; in cross-examination, it was suggested that police wished to speak to either her or the daughter in relation to the complainant assaulting the son only; she accepted this could have been possible;
     3. (c)
        act 10 was a call to PoliceLink on 1 July 2015 alleging the complainant had breached a temporary protection order; the complainant identified the appellant’s voice;
     4. (d)
        act 14 occurred on 30 July 2015, when the complainant was told the appellant had turned up at the son’s kindergarten; as a result, she kept the son at home, working from home; further, the temporary protection order was varied because of the visit, and sole custody was awarded to the complainant by the Family Court; the orders prevented the appellant from approaching the complainant or the children beyond certain limits, and making complaints to Government authorities;
     5. (e)
        acts 15 and 16 concerned two occasions in August 2015; one was when the complainant was with her boss at a café and she said she saw the appellant across the road; the other was when she was getting cake and coffee from a park and saw the appellant’s car; on each occasion she left the area;
     6. (f)
        act 17 occurred in April 2016, when police contacted the complainant to inform her of a complaint that she had permitted her boss to take sexually explicit photos of her children; she denied that her boss had ever taken photos of her children, that she had provided him with photos of her children, that she had taken sexually explicit photographs of children, that she had been paid money by her boss to photograph her children, or that she had received any money from him apart from work bonuses; the complainant denied she had been involved in a paedophile ring with SC Mustapha, and denied providing children from childcare centres to him to be delivered to Judges and Registrars of the Family Court; she denied being a drug dealer, involving her daughter in drug sales, or dealing drugs with a person named [Mr X]; she denied importing drugs from the United Kingdom with [Mrs Y] and [Mr Y]; she denied owning a hand gun;
     7. (g)
        act 18 concerned a time in 2016 when the complainant said the appellant had followed her in his car; she gave detailed descriptions of the place, roads, and manner of driving; she said it caused her to run a red light to get away; in cross-examination, the complainant confirmed she did not see who was driving; by the time she reached another intersection, the car was still about 30 to 40 metres behind her; she agreed she lost sight of the appellant; later that same day, the complainant saw the appellant travelling in the opposite direction to her; in cross-examination, she was asked how long it was until she saw the appellant for the second time; she said she could not recall whether that was the date she saw him twice or if it was a different day; further, she could not recall where she was travelling to that afternoon, nor did she see who was driving the car; the car did not follow her; as a result of seeing the appellant twice on the same day, and on the advice of SC Mustapha, the complainant said she had cameras installed at the front and back of her car, and she started wearing a GPS tracker around her neck; she said she did this because of the escalation of events involving the appellant;
     8. (h)
        act 18 also involved a time when the complainant said she saw the appellant on a balcony, and realised that he had rented a unit only 50 metres from the daughter’s school; cross-examination elicited a number of uncertainties about her account, including the dates and times, distances from the school, and the improbability of seeing the appellant given the configuration of the unit;
     9. (i)
        act 20 related to events on 2 October 2016; the complainant spoke to police and, at their suggestion, she searched her car; she saw a bag of what looked like drugs underneath her driver’s seat; she “went into a meltdown” and phoned the police back to report what she had found; she then took the car back to the police station; she provided fingerprint details and DNA to the police; the complainant denied the drugs were hers; she believed the appellant had planted drugs in her car; as a result, the complainant changed the locks on her car and had new registration plates installed at a cost of $1,200; in cross-examination, she accepted she did not ask police to search her car while she was at the station; she did not think anyone could access her car so she never checked the inside; she accepted police asked her to check her car but that she did not ask police to supervise her while she did so; it was suggested the appellant never planted drugs in the complainant’s car and she disagreed; but she accepted that, when the drugs were found under her car seat, police found no fingerprints or DNA present on them;
     10. (j)
         act 21 concerned a visit by Police, informing the complainant of a complaint made to Crime Stoppers and PoliceLink; the complaint alleged that she had supplied drugs and guns, and had drugs in her house; the complainant believed that the appellant made the complaint; she felt terrified and fearful; in cross-examination, the complainant confirmed this was the first time she heard about the Crime Stoppers submissions; the complainant understood from the conversation that the police were not taking any of the submissions seriously; she agreed the police were aware of the relationship history between the complainant and appellant; she accepted that she had been told police suspected the appellant had been making the Crime Stoppers submissions; she also accepted she likely told police that the appellant could have arranged for other people to make the complaints about her; she gave police permission to search her house and car; but they did not carry out the search;
     11. (k)
         act 24 occurred on 24 August 2016; two work colleagues told the complainant they saw the appellant drive past a coffee shop close to her work; as a result, the complainant was worried the appellant was stalking her; she did not know what the appellant would do, and was terrified of his actions;
     12. (l)
         act 26 concerned an occasion on 9 September 2016 when the complainant said she saw a person she believed to be the appellant across the road at her work; the person appeared to be coming towards her car; she described the person, who was about 100 metres away, by reference to his build, clothing and distinctive walk; as to the walk she said: “and he’s got a – yeah, he’s got a distinctive walk.  …  I was with him for a very long time so I kind of knew”; she said she had the person under observation for some minutes, and called the police; she saw the person run over the road to a shopping centre; she felt scared that the appellant would do her harm; in cross-examination, she maintained that the person she saw was the appellant, saying he was only about 15 metres away; as a result she ensured she was accompanied by someone else when she moved about;
     13. (m)
         act 27 concerned an occasion on 13 September 2016, when, after dropping the son at kindergarten, the complainant said she saw the appellant’s car nearby at a location near Dreamworld; the car was sitting idle at the entrance of a carpark, indicating to turn right in the direction of the kindergarten; she estimated it to be a two minute drive to the son’s kindergarten; she kept driving and rang police to report she had seen the appellant, and that she was going to turn the car around; as a result of her discussions with the police officer, she continued on her route; she eventually pulled over because she was panicked and worried the appellant was going to attend the son’s childcare centre; after she stopped the car, she believed she saw the appellant’s car drive past, however the car camera footage did not corroborate that; she said she was worried about the appellant following her so often; in cross-examination, the complainant confirmed she saw the car turn right in her rear view mirror.

Other evidence at the trial

128. [128]
     Various police officers were called to give evidence about their involvement in some of the charged acts.  Most of their evidence were anodyne descriptions of interactions with the complainant, observations made, and the success or otherwise of searches.
129. [129]
     SC Leeding was involved in dealing with act 3 on 30 March 2015.  The complainant gave them a description of the appellant’s car and registration number.  They did not locate the car.  In cross-examination, she said she did not see the appellant’s car whilst at the complainant’s address, and she did not recall the complainant pointing out the appellant’s car to her at any stage.
130. [130]
     SC Hatton interviewed the appellant about a complaint he made as to assault on the son; he was not cross-examined.
131. [131]
     DS Davy was involved in act 17.  He spoke to the appellant about the appellant’s concerns for the safety of his son.  The appellant said he had information from one [Mr Y] about the complainant being paid large sums to provide access to the son for photos taken by the complainant’s boss.  When DS Davy asked for [Mr Y]’s phone number, the appellant refused to give it.  DS Davy confirmed that complaint was relayed to the complainant in April 2016.
132. [132]
     SC Peardon was involved in act 21.  On 7 September 2016, he spoke to the complainant to tell her she was the subject of a complaint as to dealing drugs.  The complainant was cooperative, and no drug items were found at her unit.  DS Cooper recorded the conversation and made it clear that police thought the appellant was responsible for the complaint.  The complainant told police that: (i) the daughter was moving schools because of where the appellant lived; and (ii) she saw the appellant on the balcony when she dropped the daughter off to school.  DS Cooper explained the process to be followed if anything was found, including DNA tests and fingerprinting.  The house was not searched because consent was not given.
133. [133]
     DS Lewis was a lead investigator in relation to the case against the appellant.  She was involved from 8 September 2016, and knew of about 17 submissions to Crime Stoppers and PoliceLink made about the conduct of the complainant.  She was involved in acts 26 and 27, and gave details of the police involvement with the complainant.  On 29 September 2016, the appellant’s unit and car were searched, and a piece of paper with the Crime Stoppers reference number was located.  The appellant refused to provide access codes to his iPhone and iPad.  The appellant’s car was later seized, and a report as to its GPS locations was produced.  The report did not state what date the locations had been visited or whether they had been visited at all.  One location had been saved as “[the complainant’s first name] New Pad”.  The centre console of the car displayed the appellant’s phone and [Ms W]’s phone as paired devices.
134. [134]
     On 2 October 2016, DS Lewis spoke to the complainant and played a number of the Triple 0 calls.  DS Lewis told the complainant to go home and have a good look through her car “just for her peace of mind”.  DS Lewis decided to let the complainant search her car rather than have the police conduct a search.  The complainant called DS Lewis to report she had just found a bag of white powder under the seat of the car.  She sounded panicked during the conversation.  DS Lewis told the complainant to immediately return to the police station.  Police then searched the complainant’s car and located a clip seal bag containing a further 15 smaller clip seal bags of MDMA.  She said the bag of drugs was attached to the underside of the seat with some magnets.  DS Lewis confirmed the packaging was tested, and no DNA or fingerprints were found.
135. [135]
     DS Lewis gave details of the investigation, including the attempt to get a statement from [Mr Y], and regarding the number of submissions to Crime Stoppers and PoliceLink (38 submissions).  She also detailed the results of investigations as to available CCTV footage, location of suggested drug dealers named in the submissions, and photographs and other tests.
136. [136]
     The two co-workers involved in act 24 gave evidence of what they observed as to a car similar to that of the appellant.
137. [137]
     [Mr X], a person nominated by the appellant as a drug dealer in one of the Crime Stopper or PoliceLink submissions, gave evidence denying he was or had ever been a drug dealer.
138. [138]
     SC Mustapha gave evidence that he met the appellant concerning an incident.  He said he had never charged or investigated the complainant for trafficking in drugs, or for any other offences.  He had never provided paedophilic material to senior officers or court officers.  Further, he had never destroyed evidence.  He was not cross-examined.
139. [139]
     SC Smith was the computer expert called to give evidence as to the appellant’s hard drive.  The report of the computer’s internet explorer history was produced which showed the appellant’s username visited the Crime and Corruption Queensland, Crime Stoppers, and “Report a Drug Dealer – Queensland Government” websites between 1 and 3 September 2016.  Anonymous Crime Stoppers online submissions which allege the complainant is dealing drugs were received on those dates.
140. [140]
     SC Smith’s evidence also included an analysis that showed the appellant was responsible for the submissions to Crime Stoppers and PoliceLink.  So much was effectively admitted at the trial.  Details of that aspect of the report are set out in the Reasons below.^[127]
141. [141]
     SC Smith’s evidence relating to Exhibits 5 and 42 is dealt with elsewhere in these Reasons.
142. [142]
     Mr Daly and Mr McGregor were called to give evidence which linked the appellant to the Crime Stoppers and PoliceLink submissions.  It is not necessary for present purposes to set out the details of their evidence as the appellant effectively admitted that connection, or to the extent he did not, any suggestion to the contrary was insubstantial.^[128]
143. [143]
     Ms Donnelly was called to give evidence about the appellant’s hire of a car that was very similar to that of the complainant.

Appellant’s police interview and evidence

144. [144]
     The appellant was interviewed by police and the record went into evidence.  In that interview, the appellant made repeated assertions that the complainant was and had been a drug dealer.  He named [Mr Y], [Mr X], and others as sources of information.  He also said that if police were to stop the complainant’s car they would find drugs in “whatever it is” in the driver’s seat.  He admitted he made the Triple 0 calls because he expected someone to “come and get her”.
145. [145]
     The appellant’s evidence included admissions (made both prior to and during his evidence) which were accurately summarised by the learned trial judge in a way that was not the subject of any challenge:^[129]

“[141] The defendant made a number of admissions prior to and during his evidence.  These include:

• On 27 and 29 March 2015, he made phone calls to the complainant;
• On 14 May 2015, he made a complaint to police about the complainant assaulting [the son];
• On 1 July 2015, he made a complaint to police about the complainant breaching a TPO;
• On 13, 14 and 21 July 2015, he emailed the complainant’s Family Court lawyers and made references to intervening in the defence of another;
• Between 14 July 2015 and 16 January 2017, he rented a unit in [XX] (approximately 300 metres from [the daughter’s] school);
• On or about 21 July 2015, a private enquiry agent was engaged on his behalf to locate the kindergarten attended by [the son];
• On 30 July 2015, he attended [name of centre], Hope Island where [the son] was enrolled;
• On 7 February 2016, he made a complaint to police alleging the complainant had been paid money by [Mr Z] so that he could take pictures of [the son];
• On 21 August 2016, the defendant hired a Hyundai i30, the same model as the complainant’s, and drove it 31 km before returning it on 21 August 2016;
• On 8 September 2016, he made seven phone calls to 000 referring to the complainant as a drug dealer (Crime Stoppers submission 21);
• On 9 September 2016, he made a phone call to PoliceLink referring to the complainant as a drug dealer (Crime Stoppers submission 25);
• He made Crime Stoppers submission 32 on 12 September 2016.”

146. [146]
     Except as admitted above, the appellant denied his involvement in any of the acts of stalking.  By the time of address, the Crown withdrew a number of the originally particularised acts, namely 2, 4, 5, 6, 8, 9,13, 15, 16, 18, 19 and 24.
147. [147]
     The appellant’s evidence was largely rejected by the learned trial judge.  Detailed reasons for that conclusion were given.  They include that: (i) he was guarded, vague and evasive when challenged over inconsistencies and weaknesses in his evidence;^[130] (ii) his account about [Mr X] was implausible and contradicted by [Mr X], whose evidence was accepted as credible and reliable;^[131] (ii) he appeared at times to manufacture evidence when he realise he might be caught out;^[132] (iv) he was non-responsive at times;^[133] (v) his denials of being the maker of the Tripe 0 calls, the PoliceLink calls, and other submissions was inherently implausible;^[134] and (vi) as a whole, his evidence was not credible.^[135]
148. [148]
     The complainant’s evidence was accepted.  The learned trial judge explained why that was so:^[136]

“[195] The complainant gave her evidence in a calm and matter-of-fact manner.  She was not prone to exaggeration, nor dramatic when describing how the incidents adversely impacted her.  Another marker of the complainant’s credibility is that she made concessions during her evidence that were against her interest.  By way of example, on the occasions the complainant claimed she saw the defendant’s car following her, or drive past her, she always conceded that she could not see who was driving the car.  It would have been easy for her to say she saw the defendant if she was not being truthful.  The complainant also conceded that she could not see the face of the person approaching her car on 9 September 2016 outside her work.  Her recitation of the events was measured and plausible when compared to other evidence I accept.  I am satisfied she gave a truthful account to the best of her recollection of what she recalled of the relevant events.”

149. [149]
     Her Honour went on the detail why the complainant’s evidence was found to be reliable notwithstanding the attack upon it:^[137]

“[197] I consider that these and other parts of her evidence show the complainant may have been mistaken in her recollection about some matters.  This is understandable and explicable by the passage of time since the relevant events occurred, namely four to five years earlier.  I also suspect the complainant may well have been hypervigilant about the defendant’s actions after the nasty messages he left on her phone on 27 and 29 March 2015, the unsuccessful mediation on 30 March 2015, the false complaints to police, the google search history she located on [the daughter’s] Gmail account, the defendant’s attempts to move into [XX] Gardens where she was renting, and his moving into a unit close to [the daughter’s] school.  This list is not exhaustive.

[198] Any inconsistencies in the complainant’s evidence are mostly about peripheral matters, apart from her evidence relating to act 3 where she said she heard the defendant and saw his car outside her home on 30 March 2015.  I suspect the complainant probably did hear the defendant and see his car that evening but I exercise caution in the defendant’s favour due to SC Leeding’s evidence that she had no recollection of seeing the defendant’s car outside the complainant’s house.  Of course, it may be that SC Leeding’s memory is unreliable on this point.”

150. [150]
     The learned trial judge had the benefit, which this Court does not, of having seen and heard all the witnesses, but particularly the complainant.  Having read the whole transcript, and reviewed the exhibits, I can find no reason to conclude that her Honour’s assessment of the complainant as credible and reliable was not open to be found.  There is no sound reason to conclude, as the appellant contends, that the complainant is a fabricator of evidence, or a liar, or that her evidence should have been discounted because of inherent implausibility or inconsistencies.
151. [151]
     Further, the contention sought to be made does not properly grapple with the admitted facts at the trial, specifically as to calls and emails that the appellant admitted making, each of which was a particularised act of stalking and, not surprisingly, found to be so by the learned trial judge:

     1. (a)
        29 March 2015: calls leaving abusive voicemail messages;^[138]
     2. (b)
        14 May 2015: complaint to police that the complainant assaulted her son; the appellant admitted the call but denied it was false;^[139]
     3. (c)
        13, 14, and 21 July 2015: emails to the complainant’s lawyer and threats to “intervene”;^[140]
     4. (d)
        7 February 2016: call to police to accuse the complainant of permitting another person to take photos of the son in exchange for money; the appellant admitted the call but denied the accusation was false;^[141]
     5. (e)
        21 August to 29 September 2016: three electronic and telephone submissions to Police and Crime Stoppers, suggesting that the complainant was dealing drugs and had a gun;^[142]
     6. (f)
        8 September 2016: seven phone calls to Triple 0, claiming the complainant was selling drugs;^[143] and
     7. (g)
        9 September 2016: call to PoliceLink, claiming the complainant was purchasing or selling drugs.^[144]
152. [152]
     Further, the findings by the learned trial judge were that the content of the seven calls made to Police on 8 September 2016 compelled the inference that the appellant was following the complainant at the time the calls were made.  That is reflected in the following passage from the Reasons below:^[145]

“[299] The defendant admitted in his interview with police on 4 October 2016 and during evidence that he made seven 000 calls to police on 8 September 2016; however, the defendant denied following the complainant whilst making the calls.  During cross-examination, he maintained that he made the calls from home in the company of [Ms W] and [Mr U].  He said the three of them used a Wickr account to arrange to meet the complainant at various locations to make a drug deal.  The defendant said he would know where she was travelling in order to do the drug deal, and then he pretended to the operator he had just seen a drug deal happen.

[300] During the calls, the defendant reported the complainant dealing in drugs at various locations throughout the day.  The details of each call are summarised as follows.

1. 8.25am: He reported watching a blonde female, the driver of a car with registration number [XX], dealing in drugs.  He saw her deal drugs at [XX] Skate Park, then move to [XX] Rd near the school ([XX] where [the daughter] was a student).  He refused to leave his name.

2. 8.34am: He reported the dealer was definitely dealing at the Skate Park and was just about to drive onto [XX] Drive towards Hope Island.  He said “so I can see them now and they’re just pulling up to that [XX] Drive towards Hope Island.”

3. 8.53am: He reported that he’d been keeping an eye on the car and it drove past police officers who didn’t stop it.  He said the car was now going the opposite way back towards [XX] Rd.  He again supplied the registration number.  He said he had to get off the phone because the car had gone out of sight and “I’d just like to keep an eye on it”.

4. 3.24pm: He told police the dealer had returned to [XX] School where she had been dealing drugs that morning and was again dealing drugs.  His phone number was blocked and he refused to give police his name.  When the operator asked how he knew she was dealing, he replied “I saw them this morning, and I watched her”.  He said he saw a lot of clients and young people coming up to the car.  He saw her at the school, at the Skate Park and then saw her pick up a decent quantity of drugs from the [XX] Caravan Park.

5. 3.27pm: He reported the car had just set off towards Paradise Point.  He cut the call short by saying “I’m gonna disappear mate cause I’ll try and keep an eye on it if I can”.

6. 3.45pm: He said “I’ve been following the car and it’s driven onto Ephraim Island… [XX]”.  The operator told the defendant it was best not to follow the car.  He described the female as blonde, chunky build, and aged 30–40.

7. 4.30pm: He told the operator he followed the dealer, she drove onto Ephraim Island and he was still waiting for the police to arrive.  He knew where the car was and had been waiting for police.  He told the operator “I’m outside Ephraim Island...just at the bottom of the bridge.”  When the operator asked for his name he refused.  When the operator asked for his mobile number he said he couldn’t remember it.  Later, he told the operator he had already provided his number.

...

[322] I reject the defendant’s evidence that he was at home when he made the 000 calls.  The content of the calls clearly shows the defendant followed the complainant at various stages during the day in order to report her whereabouts to the 000 operator.  The prosecution do not rely on the complainant’s evidence of what she believed she saw that afternoon as proof the defendant followed the complainant that day.  The relevant part of the complainant’s evidence, which I accept as credible and reliable, is her evidence that she sometimes took [the son] to the Skate Park, she followed a set routine of dropping [the daughter] at the [XX] School on [XX] Road each morning, and she may have parked on occasions in the carpark [XX] on Ephraim Island.

[323] I have regard to the circumstantial evidence relied on by the prosecution, and also the following details from the 000 calls themselves:

• The [appellant] reported watching a blonde female, the driver of a car with registration number [XX], dealing in drugs;
• He saw her deal drugs at [XX] Skate Park, then move to [XX] Rd near the school;
• At one stage he said, “so I can see them now and they’re just pulling up to that [XX] Drive towards Hope Island.”
• He told the operator he’d been keeping an eye on the car and it drove past police officers who didn’t stop it (an implausible remark to make if he didn’t see this occur).
• At the end of one call he said he had to get off the phone because the car had gone out of sight and “I’d just like to keep an eye on it”.
• When the operator asked how the defendant knew she was dealing, he replied “I saw them this morning, and I watched her”.
• He cut one call short by saying “I’m gonna disappear mate’ cause I’ll try and keep an eye on it if I can”.
• He said “I’ve been following the car and it’s driven onto Ephraim Island… [XX]”.
• At one point he told the operator he knew where the car was and had been waiting for police.  He told the operator “I’m outside Ephraim Island...just at the bottom of the bridge”.

[324] The only inference reasonably open on an analysis of the contents of the 000 calls, and the other circumstantial evidence referred to, is that at some stage during the day the defendant followed the complainant in her car on the Gold Coast on 8 September in order to inform the 000 operator of her locations.”

153. [153]
     In my view, it was open to the learned trial judge to reach that conclusion.  That evidence alone was sufficient ground to establish the convictions for stalking in respect of those acts.
154. [154]
     Leaving aside the appellant’s contentions based on allegedly withheld evidence or the assertions of fabrication, the learned trial judge was addressed upon the suggested  inconsistencies and implausible matters in detail.  Resolution of those matters was, quintessentially, a matter for her Honour.  There is simply no basis, on an application of the principles in M v The Queen or Dansie, for this Court to impose its own view.  A review of the whole of the evidence compels the conclusion that it was open to her Honour to be satisfied as to the appellant’s guilt on the stalking charge.
155. [155]
     Further, no attack was made of the convictions for attempting to pervert the course of justice.  There is no basis for this Court to find that verdict was unreasonable.

Other points

156. [156]
     Several other points were raised in the Final Affidavit,^[146] but they were no more than arguments that were already run at the trial, and were largely repetitive of attacks on the credibility of the complainant, or attempts to advance some new argument based on evidence that was available at the trial.  They take the matter no further and there is no need to address them separately.
157. [157]
     The appeal on this ground must be dismissed.

Conclusion

158. [158]
     No basis has been established to permit the further evidence to be adduced.  The evidence referred to was available in one form or another to either the appellant or his lawyers, and, in any event, amounted to no more than a general attack on the complainant’s credit.  As such, it could not have affected the outcome of the trial.
159. [159]
     No basis has been made out to challenge the verdicts.
160. [160]
     The application to adduce further evidence must be refused and the appeal must be dismissed.
161. [161]
     FLANAGAN JA:  I agree with Morrison JA.