Bowles v Sanders[2002] QDC 13

DISTRICT COURT OF QUEENSLAND

[2002] QDC 013

REGISTRY: ROCKHAMPTON

APPEAL NUMBER: D5 OF 2001

REASONS FOR JUDGMENT

HIS HONOUR JUDGE G. T. BRITTON S.C.

DELIVERED the 15^th day of February 2002

This is an appeal pursuant to section 222 of the Justices Act 1886 against the order made on the 8^th May 2001 at the Magistrates Court at Rockhampton by a Stipendiary Magistrate whereby the appellant was found guilty of a charge of Stalking pursuant to section 359E of the Criminal Code.

The learned Stipendiary Magistrate ordered that a conviction be recorded and sentenced the appellant to imprisonment for a period of twelve months commencing from the 9^th February 2001.

The grounds of appeal are as follows:

“1. That the conviction was unsafe and unsatisfactory in all the circumstances;

2. The learned Stipendiary Magistrate misdirected herself as to the elements to be proved beyond a reasonable doubt to found a conviction under section 359B of the Criminal Code; and
3. That there was insufficient direct or circumstantial evidence to prove the defendant’s guilt in respect of this particular charge, to the requisite standard.”

Section 359E of the Criminal Code provides:

“(1) A person who unlawfully stalks another person is guilty of a crime. …”

Section 359B of the Criminal Code defines unlawful stalking as follows:

“ “Unlawful stalking” is conduct –

1. (a)
   intentionally directed at a person (the “stalked person”); and
2. (b)
   engaged in on any one occasion if the conduct is protracted or on more than one occasion; and
3. (c)
   consisting of one or more acts of the following, or a similar, type –

1. (i)
   following, loitering near, watching or approaching a person;
2. (ii)
   contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology;
3. (iii)
   loitering near, watching, approaching or entering a place where a person lives, works or visits;
4. (iv)
   leaving offensive material where it will be found by, given to or brought to the attention of, a person;
5. (v)
   giving offensive material to a person, directly or indirectly;
6. (vi)
   an intimidating, harassing or threatening act against a person, whether or not involving violence or  a threat of violence;
7. (vii)
   an act of violence or a threat of violence, against, or against property of, anyone, including the defendant;

4. (d)
   that –

1. (i)
   would cause the stalked person apprehension or fear, reasonably arising in all of the circumstances, of violence to or against property of, the stalked person or another person; or
2. (ii)
   causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”

The elements of the offence which the prosecution must prove beyond a reasonable doubt if a person charged with the offence of stalking is to be found guilty are as follows:

That the accused:

1. Engaged in conduct on any one occasion if the conduct was protracted or on more than one occasion;
2. Intentionally directed at the stalked person;
3. Which consisted of one or more of the acts described in paragraph (c) of section 359B;
4. That:

1. (a)
   would cause the stalked person apprehension or fear reasonably arising in all the circumstances, of violence to, or against the property of, the stalked person or another person; or
2. (b)
   caused detriment, reasonably arising in all the circumstances, to the stalked person or another person.

The charge before the Stipendiary Magistrate was:

“That on a date or dates unknown between the 29^th November 2000 and the 5^th December 2000 one Gerald Thomas Bowles unlawfully stalked Paula Michelle Ferry”

It seems clear from the evidence before the Magistrate that the appellant was not known to the complainant Paula Michelle Ferry. It was certainly conceded on the hearing of the appeal that there was no evidence that the complainant and the appellant were known to each other. The evidence was that the appellant was seen in the yard surrounding the house occupied by the complainant and her mother on two occasions in November and December 2000 at night. On the first occasion the appellant was seen by the complainant to be looking through a window into an unoccupied darkened bedroom as the complainant walked into the room to retrieve something. She and her mother had been in the lounge room of the premises. As the complainant came into the doorway of the bedroom the appellant immediately moved away and was seen a short time later to be walking out of the complainant’s yard. He was followed and spoken to by the complainant and her mother. At no stage did he stop, speak to or even look at either the complainant or her mother. On the second occasion the complainant was home alone. After taking a shower and dressing she left the bathroom. As she walked out of the bathroom she noticed that a sensor light at the back of the house was activated. The bathroom was on the left side of the house – the same side as the bedrooms. The sensor light was on the opposite side of the house to the bedrooms and bathroom. The complainant then went to her mother’s bedroom which was situated next the bathroom. She looked out through the bedroom window and saw the appellant looking/peering into the bathroom. She called out to him. He did not look in her direction. He did not speak to her. The complainant saw that the appellant was wearing only shoes and socks. She saw him immediately run away.

The primary  submission made by the appellant is that the element of the charge that the conduct of the appellant was intentionally directed at the complainant was not proved beyond a reasonable doubt. It is argued that the evidence did not establish that any conduct on behalf of the appellant was intentionally directed at the complainant and that the conduct of the appellant was random or happenchance. It was argued that there is no evidence to indicate that the appellant could have been aware who lived at the house or who was present there on either occasion and that it is not enough to show that a person merely happened to be in or about the same place as the accused to prove stalking. It was submitted that the appellant was seen looking into an empty room on the first occasion and moved away from the window immediately the complainant came into the room. He did not stop pause or remain outside the window and did not look at the complainant. He did not try and attract her attention and did not verbally respond when called out to on at least three occasions and when being followed by the complainant and her mother. As to the second occasion it is argued that the appellant was obviously looking into an empty room – the bathroom. It is argued that it is safe to infer that the applicant had no idea where the complainant was in the house or whether he would be aware that she particularly was in the house and that once again he moved away immediately when the complainant called out indicating that he had been seen and that he did not pause or stop. He did not look or glance back as he ran away and he said nothing.

The Magistrate in the course of her decision dealt with each of the elements of the offence in a sequential order. She found that the date and place of the offence were made out. The identity of the defendant was not in dispute. She found that the appellant’s actions in going to the house on two occasions and looking into the house on each occasion as described by the complainant was conduct within the ordinary meaning of the word and further in relation to the second incident she found that the conduct was conduct within the meaning of the section. The Magistrate then seems to have found that the conduct in relation to each occasion was conduct within the meaning of the section. She found further that the conduct caused the complainant detriment reasonably arising in all of the circumstances. At page 91 line 18 to 92 line 4 of the depositions the following passage appears:

“There was no evidence that the defendant was attempting to break into the premises or had any interest in the premises itself and from his actions particularly that of standing about a metre from the open bathroom window at night when the bathroom was lit. The fact that he was naked and looking at the window in a time frame which appears to be shortly after Miss Ferry had taken a shower and dressed in the bathroom it could be inferred that the defendant’s interest was in the occupants of the house rather than the house itself.

There is nothing in section 359B to require a defendant to have any intent particularly in relation to subsection (3), any intent beyond watching. For instance some of the usual stalking cases, for want of a better description, or more famous ones include the stalking of high profile people, former partners or workmates and include actions which are probably somewhat more aggressive rather than the passive actions of the defendant on this occasion.

The defendant watching a person in their own home at night without seeking further contact or acknowledgment from that person is specifically  covered in section 359B subsection (c) sub (3). Because the factual situation here is not as serious as other cases is a matter of mitigation rather than a lack of proof.

The actions of the defendant, as I have described, I find are directed at a person that person being the occupant or an occupant of the house which happened to be Miss Ferry on both occasions. In making that finding I do acknowledge that the defendants actions as I have said were passive in their nature. He was standing looking in. He appeared to do nothing other than look in even after he was challenged he left the immediate vicinity of the house. However, the fact that he was looking into a house which was occupied at night in a situation where there were some internal lights, in my view, indicates that he was directing his conduct in looking at a person or at a occupant of the house.

The fact that he may not have known Miss Ferry beforehand or may not have started out directing his looking at Miss Ferry as opposed to her mother or any other person who may have been in the house does not make it any less intentionally directed at a person and consequently I find the defendant guilty of the charge.”

Mr Clarke who appeared for the appellant referred to the first reading speech of the then Minister for Justice and Attorney General on the 9^th November 1993 when introducing the legislation creating the offence where he said:

“It collectively describes a wide variety of factual situations where one person may follow, contact, put under surveillance or otherwise harass or intimidate a second person but stops short of committing an offence against that person or against his or her property.”

Mr Clarke submitted that having regard to the first reading speech it was clear that there needed to be some targeting of the stalked person and that it was never intended by Parliament in creating the offence of stalking that someone should be found guilty of the offence where there was some random meeting or inadvertent contact.

Mr McGrath who appeared for the respondent argued that on the evidence before the Magistrate the proper inference to be drawn was that the appellant went back on the second occasion to loiter or watch or approach or enter a place where the complainant lived having regard to the fact that he had seen the complainant in that area on the first occasion. He argued that if that inference were drawn it could be inferred that the conduct of the appellant on both occasions was directed at the complainant. As I indicated in the course of argument whilst in my view it was reasonably open on the evidence before the Magistrate to infer that the appellant did go to the premises on the second occasion for the purpose of engaging in conduct of the kind referred to in section 359B(c)(iii) it was not an inference reasonably open that on the first occasion his conduct was intentionally directed at the complainant. There is no evidence in relation to the first occasion that his conduct was intentionally directed at any person let alone the complainant in particular. Such an inference could not in my view be reasonably open because there is no evidence that the appellant knew who lived in the house or indeed that there was anyone even in the house. Mr McGrath conceded the difficulties inherent in his argument.

I was informed by Counsel that there were no authorities relevant to the point in issue.

It follows from what I have said that I am of the view that the Magistrate did misdirect herself as to what was required to be proved in order to establish beyond reasonable doubt the element of the offence that the appellant intentionally directed his conduct at the stalked person and further that there was no evidence which would permit a finding that the conduct of the appellant was intentionally directed at the complainant or indeed any person and the conviction cannot stand.

I should say that section 359C has no application. Section 359C(1) provides:

“For section 359B(a), it is immaterial whether the person doing the unlawful stalking –

(a) intends that the stalked person be aware the conduct is directed at the stalked person; or

(b) has a mistaken belief about the identity of the person at whom the conduct is intentionally directed.”

If the prosecution is unable to prove that the defendant’s conduct was intentionally directed at a person then clearly section 359C has no application.

It was correctly submitted that by virtue of section 232(4) of the Justices Act no order for costs may be made in relation to this matter.

The orders of the Court will be:

1. That the appeal be allowed.
2. That the conviction be set aside.
3. That the charge be dismissed.

G. T. BRITTON S.C. DCJ