Hargrave v The Queen[2005] QDC 246

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defendant, John Hargrave, pursuant to s 590AA of the Criminal Code, seeking to set aside pleas of guilty entered in the Ipswich District Court on 6 October 2004, to charges of unlawful stalking and assault (Indictment 432/04).

Applicable Law

2. [2]
   This application concerns the exercise of a discretion by this Court, requiring the applicant to show that “a miscarriage of justice has occurred or would occur if [the applicant] was not allowed to withdraw his plea” (see R v Mundraby [2004] QCA 493 per McPherson JA at para 11 and Boag (1994) 73 A Crim R 35, 36-37). The circumstances capable of amounting to a “miscarriage of justice” must indicate “that the plea of guilty was ‘not really attributable to a genuine consciousness of guilt’” (see R v Mundraby per McPherson JA at para 11, R v Murphy [1965] VR 187, Boag at p 37). In Liberti (1991) 55 Crim R 120, Kirby P, at pp 121-122, outlined a test that required the applicant to show either:

1. (a)
   that he or she did not appreciate the nature of the charge or did not intend to submit that he or she was guilty of it; or
2. (b)
   that, upon the admitted facts, he or she could not in law have been convicted of the offence(s) charged (see also R v Mundraby per McPherson JA at para 11).

3. [3]
   Courts must approach an application to set aside a plea of guilty with significant caution (see Liberti per Kirby P at p 122 and R v Mundraby per Jerrard JA at para 21).

Applicant’s Submissions

4. [4]
   Mr Kissick, who appears for the applicant in respect of this application, (but was not the counsel who appeared when the pleas of guilty were entered) submits:

1. (i)
   there is a serious issue to be tried; and
2. (ii)
   there is real doubt as to the guilt of the applicant in respect of the offences charged.

5. [5]
   Mr Kissick accepts that his client’s pleas of guilty were freely and voluntarily entered after receiving proper, appropriate and competent legal advice, but stresses the proposition that a miscarriage of justice will have occurred where the Court cannot be satisfied that any offence has actually been committed.

6. [6]
   In particular, Mr Kissick asserts that the evidence, taken at its highest, does not sustain the charge of unlawful stalking and further, that the “touching” which grounds the assault charge was perhaps socially awkward, but was excused by its occurrence in the course of normal social intercourse. In short, it is submitted that the applicant has pleaded guilty to charges which are, objectively, not made out.

Respondent’s Submissions

7. [7]
   Mr Power, who appeared for the Director of Public Prosecutions, outlines in significant detail the acts of the applicant towards the complainant. These acts of the applicant can be summarised as follows:

1. (a)
   coming into the complainant’s work when she was working;
2. (b)
   calling the complainant “sexy” or “sweetie”;
3. (c)
   wolf-whistling at the complainant;
4. (d)
   asking the complainant if she heard him whistle at her;
5. (e)
   talking to the complainant about personal things e.g. the death of the applicant’s wife;
6. (f)
   paying particular attention to the complainant in the shop where the complainant worked and purchasing few, if any, goods from the shop;
7. (g)
   giving the complainant business cards on two occasions with the applicant’s details on them;
8. (h)
   telling the complainant that if she wanted to talk to the applicant about anything, to ring him;
9. (i)
   asking the 15-year-old complainant why she had not telephoned him;
10. (j)
    asking the 15-year-old complainant for her mobile telephone number;
11. (k)
    asking the 15-year-old complainant why she had not given him her mobile telephone number;
12. (l)
    taking a photograph of the 15-year-old complainant without her permission;
13. (m)
    approaching the complainant at a café and picking up a personal item (photograph) of hers;
14. (n)
    at the café, persistently requesting that the complainant consent to the applicant taking a photograph of her, despite her continually refusing;
15. (o)
    before leaving the café, rubbing his fingers from the complainant’s forearm up to near her shoulders;
16. (p)
    approaching the complainant, slowly, in a motor vehicle while she was waiting for a taxi;
17. (q)
    on two occasions, one when the complainant was walking home from work, and the other when she was walking to work, approaching the complainant in a vehicle and waving at her.

8. [8]
   Mr Power submits, and I accept, that the acts detailed above:

1. (a)
   were reasonably directed at the complainant;
2. (b)
   were engaged in on more than one occasion; and
3. (c)
   consisted of one or more acts of approaching the complainant, approaching or entering a place where the complainant worked or visited, and also included an act of violence (the assault which constitutes Count 2 in which the applicant touched the complainant with his fingers to her arm and upper body).

9. [9]
   Mr Power submits that all of the acts referred to in paragraph [7] above were carried out towards a 15-year-old complainant girl by the applicant (who was, at the time, in his mid-40’s), and would have had the potential or actual result of causing the complainant apprehension or fear, reasonably arising in all the circumstances, of violence towards the complainant. In addition, Mr Power submits that the act of the applicant rubbing the complainant’s right arm from her forearm to around her shoulders, was not an act by the applicant using force within the limits of what was acceptable in everyday life in the community, and therefore, being an act without consent of the complainant, constituted common assault.

Conclusion

10. [10]
    After careful consideration, I accept Mr Power’s submissions that the acts outlined in paragraph 7 constitute conduct capable of amounting to unlawful stalking and consequently, that a conviction could be sustained in respect of that offence. I also accept that the act alleged to constitute the assault was conduct capable of grounding that charge and consequently a conviction for assault could be sustained. I note in passing that both offences appear to be relatively minor, although, no doubt, they still amounted in their totality a distressing experience for this 15-year-old complainant.

11. [11]
    The applicant did not seek (through his current counsel) to impugn either the advice received from or the actions of his previous legal representatives, leading to the entry by the applicant of the pleas of guilty on 6 October 2004. It follows that the applicant has been unable to persuade me that a miscarriage of justice would occur if the pleas of guilty to the charges of unlawful stalking and assault were not set aside. Accordingly, the application is refused.