R v Davies[2004] QDC 279

CITATION: R v Davies [2004] QDC 279

PARTIES:

THE QUEEN

v

WILLIAM JAMES DAVIES

FILE NO/S: Indictment 128/2004

DIVISION:

PROCEEDING: Pre-trial ruling

ORIGINATING COURT: District Court, Beenleigh

DELIVERED ON: 2 August 2004

DELIVERED AT: Beenleigh

HEARING DATE: 2 August 2004

JUDGE: McGill DCJ

ORDER: Indictment permanently stayed.

CATCHWORDS:

CRIMINAL LAW - Stalking - elements of offence - whether necessary for the person stalked to be aware of what is occurring - secret monitoring by concealed video camera not stalking.

Criminal Code ss 359A, 359B, 359C.

CRIMINAL JURISDICTION

JUDGE MCGILL SC

THE QUEEN

v.

WILLIAM JAMES DAVIES

BEENLEIGH

..DATE 02/08/2004

..DAY 1

EXTRACT OF PROCEEDINGS

RULING

HIS HONOUR: Yes, all right. This is an application under section 590AA on behalf of the accused against whom an indictment was presented in this Court on 17 March 2004 charging two counts of unlawful stalking, one each against two complainants, both alleged to have occurred on diverse dates between 31 May 2001 and 22 January 2003 at a particular place.

The circumstances of the offending alleged to have occurred were that the complainants who were the stepdaughters of the accused were living with the accused, and during that period the accused had set up in the ceiling of the bathroom of the house in which they were living a small video camera which was hidden, and would ordinarily not have been noticed, in the ceiling vent of a bathroom.

It was connected to a monitor and a video recorder, and from time to time during the period it is alleged that when one or other of the complainants was in the bathroom, the accused would activate the camera and watch them, and at times tape them, while they were undressing or showering. A videotape containing images made in this way was discovered by police when they searched the house after the camera was spotted by the complainants' brother. This occurred some time after the videotaping had stopped, which occurred in late 2002 shortly before the accused pawned his video cassette recorder.

It is not suggested that either of the complainants was aware of what was going on until they were made aware of what had occurred by police. That occurred after their brother had located and indeed removed the camera from the bathroom. The police after being spoken to by the brother conducted the search to which I have referred, and apparently then told the complainants, and it was then that they made complaints and charges were brought.

The accused was interviewed and made full admissions to investigating police. On the basis of these and in the light of the other matters, the accused has been charged with the two counts of stalking, one in respect of each complainant. Both complainants have said that they were angry and upset about what had occurred and were particularly concerned that J the videotape material might have been circulated to others. There is no evidence that that occurred.

It follows that the accused was present in the home at the time when he was watching the complainants with the assistance of the equipment when they were in the bathroom but also they were at the time unaware that he was watching them. It is submitted on behalf of the accused that this does not disclose an offence of stalking, and that therefore in effect the Crown have charged the wrong offence or at least the accused did not commit, on the facts he admits and the Crown alleges, the offences with which he has been charged, hence this application.

Unlawful stalking is defined in section 359B of the Criminal Code. It was not disputed and I accept that paragraphs A and B of that definition are satisfied. I will also add that it was not disputed that all four paragraphs must be satisfied in the definition before the offence is committed. It was submitted on behalf of the defendant that paragraphs C and D were not satisfied.

In relation to paragraph C, the Crown relies on the word “watching” which appears in subparagraph (i) and (iii) of paragraph C although in a context which perhaps suggests a relatively narrow meaning of the word. Subparagraph (i) actually says: “Following, loitering near, watching or approaching a person.”

Paragraph (iii): “Loitering near, watching, approaching or entering a place where a person lives, works or visits.” If one adopts the principle of construction of noscitur a sociis, then these all involve the person alleged to have done the relevant acts actually being at the place, either, under (i), the place where the relevant person is, or under (iii), the place where that person lives, works or visits.

I should also mention in relation to paragraph D, the fourth element. That provides that the conduct concerned is conduct “That - (i) would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of the stalked person or another person; or (ii) causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.” The interpretation of this provision at the relevant time is effected by section 359C (4) and (5).

The former subsection provides that it is immaterial that the person doing the unlawful stalking intended to cause the apprehension or fear or the detriment mentioned in the section. It seems to me that that is simply a provision which makes it clear that intention is not an element of section 359B.

Subsection (5) provides that for section 359B(d)(I), “it is immaterial whether the apprehension or fear or the violence mentioned in the section is actually caused.” I suspect that that subsection contains a drafting error in that it is the apprehension or fear of violence which is mentioned in section 359B(d)(I) which is being spoken of. It is plain from the terms of paragraph (d)(I) that it is irrelevant whether there is actual violence because it is the apprehension or fear of violence reasonably arising in the circumstances which is relevant.

But I suppose it may be that part of the function of subsection 5 was to make it clear that that was so. Otherwise, the subsection is a little puzzling, because on the face of paragraph (d) it would be necessary for the Crown to show that the acts referred to in paragraph (c) would, in fact, cause the stalked person apprehension or fear, et cetera, and that this apprehension or fear arose reasonably in all the circumstances.

The explanatory notes to the amendments in 1999, which inserted section 359(C) suggests that the purpose of subsection 5 was to overcome the risk that a particular person might not actually suffer apprehension or fear because of unusual stoicism.

It seems, therefore, that it is immaterial that the stalked person does not actually suffer apprehension or fear as long as a reasonable person in the position of the stalked person would suffer apprehension or fear of violence, et cetera. Although, I must say it seems to me, frankly, that it is difficult to work out, or it is difficult to reconcile the wording of section 359B(d)(i) with what is provided in section 359C(5).

The latter subsection also seems to have the effect that it is immaterial that the apprehension or fear is, in fact, caused - which seems a little odd, frankly. I suppose that just emphasises that the test is an objective one rather than a subjection one.

The other provision that I should mention is that the word “detriment” in paragraph (d)(II) is defined in an inclusive way in section 359(A) in four paragraphs. The first paragraph appears to be redundant in view of the terms of paragraph (d)(1). The others are: “(b) serious mental, psychological or emotional harm; (c) prevention or hindrance from doing an act a person is lawfully entitled to do; (d) compulsion to do an act a person is lawfully entitled to abstain from doing.”

It is submitted on behalf of the Crown that in paragraph (d) the word “serious” only applied to “mental” harm rather than psychological or emotional harm. But it seems to me that that construction is plainly wrong, and that the word “serious” must apply to each of the aspects of harm - mental, psychological or emotional, referred to in that paragraph.

The other two paragraphs plainly refer to things which the person concerned, that is the stalked person for the purposes of section 359(B), would have to be aware of at the time. It was submitted on behalf of the Crown that paragraph (d) - either limb of paragraph (d) was satisfied in the circumstances of this case, bearing in mind the particular provisions of section 359(C), and in particular, in relation to the first limb, subsection 5.

But it seems to me that the difficulty with that submission is that even if it was immaterial that the relevant apprehension or fear was not actually caused at the time when the accused was watching the complainants, it was, I think, still impossible to show that a reasonable person in the position of the complainants would have suffered apprehension or fear of violence to or against their property, or to or against the property of some other person in such circumstances.

It seems to me that subparagraph (I) is essentially something which must be assessed by reference to the time when the events are occurring. In relation to subparagraph 2, the detriment relied on was the feeling of being angry and upset at the time when the complainants found out what had occurred, and it was submitted that that could qualify as serious mental, psychological or emotional harm. It seems to me, however, that that in itself would be difficult to identify as mental, psychological or emotional harm, and plainly does not amount to serious mental, psychological or emotional harm.

Although “detriment” is defined in inclusive ways in those terms, the use of that expression in paragraph (b) indicates to me that the legislature did not intend that mental, psychological or emotional harm which was not serious would amount to a detriment for the purposes of the chapter.

Apart from these considerations, counsel for the applicant relied on the reasons in the explanatory notes to the Criminal Law Amendment Bill 1993 which introduced the offence of stalking and to the Criminal Code (Stalking) Amendment Bill 1999 by which amendments were made in particular by inserting section 359C. In the former notes on page 3 reference is made to the proposed section 359A in the following terms:

Although it is important not to substitute the words of the explanatory note for the words in the section, that does suggest that the legislative intent was that the conduct concerned would be conduct which was known to the victim; that is the stalked person.

Reference may also be made to the 1999 explanatory note where one of the matters said to giving rise to concern identified on page 1 of the note, was expressed in the following terms:

The legislature appears to have dealt with that latter problem by making the conduct stalking in relation to the person to whom the conduct caused detriment rather than stalking in relation to the person to whom or at whom the course of conduct was directed but who was unaware of that course of conduct. That of course was a matter for the legislature.

It may be that in some circumstances there might be some lapse of time between the particular act identified in paragraph C and the time when the stalked person became aware of it. This would occur, I suppose, particularly in relation to (iii) if the stalked person was not at the relevant place at the particular time. But it seems to me that even in relation to that, unless the stalked person is made aware of it at some time, then it is difficult to see how either of the detriments could be suffered.

The other aspect of the matter is that this is, in a sense, a continuing offence. The conduct must be engaged in one or more occasions and will only be satisfied if it is engaged on one occasion if the conduct is protracted. In the present case of course, there is no doubt that what was being done was done over either on one protracted occasion or on more than one occasion over a significant period of time. But I think that is also relevant to considering what the stalked person needs to be aware of in order that the offence be made out.

In my opinion the point taken on behalf of the defendant is correct; that it is not stalking unless the person concerned, the stalked person, is aware of what is going on and is reacting to that awareness so as to satisfy paragraph D. I think that is plainly the case in relation to the first limb of paragraph and in the light of the definition of “detriment” in section 359A, the scope of the section generally, the explanatory notes, and bearing in mind as well, that where there is some reasonable ambiguity about the section, it should be given no wider an interpretation than the words used fairly require, it seems to me that it is not stalking to engage in conduct the stalked person is entirely unaware of merely because once the stalked person finds out about it later the stalked person is unhappy about it.

It seems to me that the situation in the present case has really arisen because of the nature of the conduct and because of the element of indecency which is introduced by the particular circumstances. It occurs to me that had that not been present no-one would ever have suggested that the conduct concerned amounted to unlawful stalking.

I am not concerned with the question of whether in the particular circumstances which give rise to this charge, the conduct concerned ought to be prohibited by the criminal law, and for all I know it may be, I am only concerned with the question of whether that conduct amounts to an offence under section 359B of the Criminal Code. And in my opinion it does not and in those circumstances the facts alleged by the Crown cannot sustain the indictment. Yes. Where do we go from here?

MR REES: Would your Honour stay the indictment?

HIS HONOUR: Yes, that seems to be the - I think that is the appropriate course then - I - yes, all right, thank you, Mr Rees. In the light of that ruling I will order that the indictment to be permanently stayed.

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