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Ralph v Commissioner of Police[2015] QDC 206

Ralph v Commissioner of Police[2015] QDC 206

DISTRICT COURT OF QUEENSLAND

CITATION:

Ralph v Commissioner of Police [2015] QDC 206

PARTIES:

ROBERT PETER RALPH

 

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

8/15

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Bundaberg Magistrates Court

DELIVERED ON:

26th August 2015

DELIVERED AT:

Gympie District Court

HEARING DATE:

30th July 2015

JUDGE:

Robertson DCJ

ORDER:

  1. Appeal allowed;
  2. The orders made below are set aside; and
  3. Verdicts of acquittal are entered in relation to both charges.

CATCHWORDS:

APPEAL AGAINST CONVICTION; where the appellant was convicted of two counts of stalking his neighbours; where the Magistrate rejected as not proved acts alleged by the respondent to be acts proving the element of charges referred to in s 359B(c) of the Criminal Code; where three acts were proved constituting the elements of the offence of stalking in each case; where the appellant was fined $1,500 on two charges; where no conviction was recorded; where his Honour imposed a two year restraining order in relation to each complainant pursuant to s 359F of the Criminal Code; whether the Magistrate made legal errors in determining, on the basis of his unimpunged factual findings, that he could be satisfied beyond a reasonable doubt of all of the elements of each charge; where there was ongoing “trouble” between the parties leading up to the stalking; where the relationship between the appellant and the two complainants, at the start of the period of the alleged stalking, was much more in the category of “mutual combat” than stalking; where findings are damaging to the creditability and reliability of the complainants; where adverse credibility findings made by the Magistrate against the complainant cannot be reconciled with the Magistrate’s conclusions; where the prosecution had failed to satisfy all of the elements of each charge beyond a reasonable doubt s 359B(d)(i) or s 359B(d)(ii); where the prosecution could never establish beyond a reasonable doubt that any fear or apprehension or detriment caused by the acts, reasonably arose in all of the circumstances; where the circumstances logically indicate a case of mutual combat; where the Magistrate has on the basis of his own reasoning, acted on evidence which was inconsistent with facts incontrovertibly established by (other) evidence.

APPEAL AGAINST SENTENCE; where the appellant appeals against the making of a s 359F restraining order for a period of two years; whether the District Court has jurisdiction to hear the appeal; where it is accepted that a rehearing on appeal qualifies as a “hearing” as referred to in s 349F(i); whether an appeal lies from the making of a restraining order under s 395 of the Criminal Code; where an appeal may lie to the District Court under s 45 of the Magistrates Court Act 1921.

 

Legislation

Criminal Code 1899 (Qld)

District Court of Queensland Act 1967 (Qld)

Evidence Act 1977

Justices Act 1886

Magistrates Court Act 1921

Cases

Browne v Dunn (1893) 6 R 67

Commissioner of Police v Al Shakarji [2013] QCA 319

Coulter v Ryan [2006] QCA 567

Devries v Australian National Railways Commission (1993) 177 CLR 472

Garrett v Nicholson (1999) 21 WAR 226

House v The King (1936) 55 CLR 499

R v Blow [1963] QWN 1

R v Harman [1959] 2 QB 134

R v Johnston [2008] QCA 291

R v Marriner [2007] 1 Qd R 179; [2006] QCA 32

Schneider v Curtis [1967] Qd. R. 300

Teelow v Commissioner of Police [2009] QCA 84

White v  Commissioner of Police [2014] QCA 121

COUNSEL:

Cummings, G. of Counsel for the Respondent 

Eberhardt, C. of Counsel for the Appellant 

SOLICITORS:

Robertson O'Gorman Solicitors for the Appellant

  1. [1]
    After a three day trial in the Bundaberg Magistrates Court which proceeded from 12 to 14 May 2014, the presiding magistrate, Acting Magistrate Morrow, reserved his decision, which he delivered in written form on 15 January 2015.
  1. [2]
    The appellant was convicted of two counts of stalking his neighbours, Mr and MrsEdwards. As the reasons disclosed, his Honour rejected as not proved many of the acts alleged by the respondent to be acts proving the element of the charges referred to in s 359B(c) of the Criminal Code. He did however find proved three acts which he found constituted the elements of the offence of stalking in each case. His conclusions are succinctly summarised at paragraphs [305]-[306] of his reasons:

“[305]The only intentional conduct by Mr Ralph towards both Ian and Monique Edwards that has been proven beyond reasonable doubt is the removing of the signage from the front grid on 23rd January 2013; (sic) the placing of a sign on the second grid in relation to ‘No Trespassers’ and the ‘dickhead’ or ‘masturbation’ gestures and the staring at them on 25th February 2013. The evidence of prior hostility to the Edwards supports the conclusion that the conduct was intentionally directed at them.

[306]The masturbation or dickhead gestures are harassing in that it is wilful (sic) course of conduct directed at both Monique and Ian Edwards that seriously annoys and torments them and that conduct serves no legitimate purpose. The same can be said for removing the signage on 23rd of February and putting up the ‘no trespassing’ sign on the second grid on 5th of March 2013.”

  1. [3]
    The appellant was fined $1,500 in respect of both charges, no conviction was recorded, and his Honour imposed a two year restraining order in relation to each complainant pursuant to s 359F of the Criminal Code.
  1. [4]
    The appellant appeals against both conviction and sentence pursuant to s222 of the Justices Act 1886. In relation to the sentence appeal, only the s 359F order is impugned, and the respondent argues that this court has no jurisdiction to hear such an appeal under s222.
  1. [5]
    The grounds of appeal are set out in the notice of appeal filed on 10 February 2015 in the Bundaberg District Court:

“1.The learned magistrate erred in law and fact in finding that the act proven beyond reasonable doubt (‘the proven acts’) were sufficient to find the Appellant guilty of the charges in that;

  1. (a)
    the learned magistrate erred in law and fact in finding that the proven acts were ‘harassing’ acts in the context of the offence of stalking.
  1. (b)
    the learned magistrate erred in fact and law in finding that the proven would have caused the complainants ‘apprehension or fear, reasonably arising in all the circumstances, of violence to, or against the property of, the (complainants) or another’.
  1. The learned magistrate erred in making a restraining order against the Appellant pursuant to s 359F of the Criminal Code Act 1899 (Qld).
  1. The sentence imposed by the learned magistrate was manifestly excessive.”
  1. [6]
    The appellant’s outline, filed on 22 March 2015, was prepared at a time when his lawyers did not have a transcript because of the estimated cost of $6,000. Unfortunately, in his outline filed in response on 23 April 2015, the respondent sought to take advantage of this by arguing that because the appellant has not made “detailed reference to the transcript of the proceedings”, it cannot satisfy s 223 whereby this court is required to conduct a rehearing, in the technical sense, consisting of a review of the record of the proceedings below, and cannot therefore point to “some legal, factual or discretionary error”: Commissioner of Police v Al Shakarji [2013] QCA 319; Teelow v Commissioner of Police [2009] QCA 84; and White v  Commissioner of Police [2014] QCA 121, per Morrison JA at paras [6]-[8].
  1. [7]
    We now live in an age of user pay. The Commissioner of Police in proceedings such as these should behave as a model litigant. He should therefore not attempt to take advantage of an appellant’s failure to refer to the transcript because the appellant is unable to meet the horrendous costs of the transcript; which is not an issue for the respondent. As the record will reveal, this matter was transferred from the Bundaberg District Court to this court for hearing. Because the Deputy Registrar was away sick for some weeks, I was not notified until 30 July 2015, i.e. the day before the hearing, that the appellant did not have the transcript. I mentioned the matter that day and directed that both parties have access to the transcript on file, to be copied if required. As it turned out, in the interim the appellant had with some difficulty raised the funds to pay for the transcript, and a supplementary outline was filed by him on 30 July 2015, and the respondent filed a response on 31 July 2015. The issues canvassed at the hearing were sensibly confined to a number of quite discrete issues, which, in reality, do not depart much from the grounds of appeal.

The proceedings below

  1. [8]
    As I have noted, the trial proceeded over three days. At the outset, the Acting Magistrate read out the charges:

“The first charge says

That between the twentieth day of June 2012 and the 7th of March 2013 at Pine Creek in the State of Queensland, one Robert Peter Ralph unlawfully stalked Ian Edwards.

And further that between the twentieth day of June 2012 and the seventh day of March 2013 at Pine Creek in the State of Queensland, one Robert Peter Ralph unlawfully stalked Monique Ruth Edwards.”

  1. [9]
    Mr Eberhardt, who represented the appellant below and on the appeal, referred to particulars of both charges provided by the prosecution in writing. Unfortunately, these particulars were not tendered as an exhibit for identification and are therefore not part of the record. This is most unfortunate. It undermines this court’s ability to conduct a proper rehearing on the record, although a version is on the lower court file.
  1. [10]
    As can be seen from the record, the particulars in documentary form were supplemented by the prosecutor after speaking with the complainants (see T1-13 line 34 – 1-15 line 10).
  1. [11]
    At T1-7 both charges were amended by consent so that the period of the alleged stalking as particularised was much narrower, namely from 8 January 2013 to 6 March 2013.
  1. [12]
    It follows that the appellant could only be convicted of the offences on the basis of acts, or an act if protracted, which in law amounted to unlawful stalking between those dates, so the first act particularised in relation to Mrs Edwards could not be considered as an overt act.
  1. [13]
    The appellant does not challenge his Honour’s findings of fact. What is argued is that his Honour made legal errors in determining, on the basis of his unimpugned factual findings, that he could be satisfied beyond reasonable doubt of all of the elements of each charge.
  1. [14]
    Given the narrowing of the issues on appeal, and the absence of challenge to his Honour’s factual findings, it is unnecessary for me to canvass the evidence before him in detail.
  1. [15]
    The appellant and complainants were neighbours in a rural setting at Pine Creek. Mrand Mrs Edwards lived at 671 Pine Creek Road, and MrRalph lived at 673. Another neighbour, MrJenner, lived in close proximity at 675 Pine Creek Road. The Edwards’ property was 40 acres, MrRalph’s property comprises of 120 acres. The Edwards purchased vacant land in 2009, and constructed a house on the land in 2011. MrRalph had owned his land for many years prior to this. As his Honour’s exhaustive summary of the evidence reveals, trouble between the parties arose in March 2012, and it focussed on an easement over Mr Ralph’s land which provided access to Pine Creek Road to MrJenner and the Edwards.
  1. [16]
    The easement and associated property searches were tendered, and there was much discussion about its terms and the parties’ respective rights. Again, it is not necessary for me to go into this issue as it is common ground that factually it was at the heart of the relationship between the parties which, by the time of the alleged offending, could only be described as toxic. The easement itself was granted by MrRalph in 1991. The grantee was Mr and Mrs Miller, the predecessors in title to the Edwards. It is essentially what is commonly described as a right of way easement.
  1. [17]
    At paragraphs [37]-[50] his Honour sets out briefly the “trouble” leading up to the period of the stalking. There is no doubt that the antecedent hostility between the parties was a relevant factor for his Honour to consider when he came to consider the evidence of the acts said to constitute unlawful stalking; and it is also a very relevant factor for consideration when assessing the reliability and truthfulness of the evidence of Mr and Mrs Edwards.
  1. [18]
    It is agreed between the parties for the purpose of the appeal that the particulars (as amended orally) upon which the prosecution case was based are as follows:

Particulars – complaint of Ian Edwards

  • Between 8th January 2013 and 17th January 2013 on more than one occasion the defendant loitered along the proper boundary fence of Ian Edwards’ property and watched Ian Edwards who was present, and this caused Ian Edwards apprehension;
  • Between 8th January 2013 and 17th January 2013 on more than one occasion the defendant approached Ian Edwards’ property whilst Ian Edwards was present and the defendant rode up and down the fence line revving his motor bike, and this caused Ian Edwards apprehension;
  • Between 9th January 2013 and 17th January 2013 on two occasions the defendant loitered along the property boundary fence of Ian Edwards’ property and shone a spot light into Ian Edwards’ residence whilst Ian Edwards was present, and this caused Ian Edwards fear;
  • On 23rd February 2013 the defendant removed the house numbers and signs belonging to Ian Edwards, and this caused Ian Edwards apprehension;
  • On 25th February 2013 at about 5.00pm the defendant rode a motor bike and approached and watched Ian Edwards who was standing near an easement grid and made hand and mouth gestures in the direction of Ian Edwards, and this caused Ian Edwards apprehension;
  • On 25th February 2013 between 6.00pm and midnight on more than one occasion, the defendant, whilst on a motor bike, approached Ian Edwards residence whilst Ian Edwards was present, and the defendant was revving his motor bike and shone a light towards the residence, and this caused Ian Edwards apprehension;
  • On 5th March 2013 at about 4.30pm the defendant approached an easement near the entrance to Ian Edwards’ residence and loitered there until 9.15pm and this caused Ian Edwards apprehension;
  • On 6th March 2013 at about 2.20pm the defendant yelled words in the direction of Ian Edwards, whilst Ian Edwards was in a car leaving his property, and this caused Ian Edwards apprehension.

Particulars – complaint of Monique Edwards

  • On 10th July 2012 at about 1.00pm the defendant discharged a firearm in close proximity to Monique Edwards’ house whilst Monique Edwards was present, and this caused Monique Edwards fear;
  • Between 8th January 2013 and 17th January 2013 on more than one occasion the defendant loitered along the property boundary fence of Monique Edwards’ property and watched Monique Edwards who was present, and this caused Monique Edwards apprehension;
  • Between 8th January 2013 and 17th January 2013 on more than one occasion the defendant approached Monique Edwards’ property whilst Monique Edwards was present and the defendant rode up and down the fence line revving his motor bike, and this caused Monique Edwards apprehension;
  • Between 8th January 2013 and 17th January 2013 on more than one occasion the defendant loitered along the property boundary fence of Monique Edwards’ property in the early hours of the morning and shone a spot light into Monique Edwards’ residence whilst Monique Edwards was present, and this caused Monique Edwards fear;
  • On a date in late January 2013 the defendant watched Monique Edwards whilst she was on an easement moving cattle and this caused Monique Edwards apprehension;
  • On 23rd February 2013 the defendant removed the house numbers and signs belonging to Monique Edwards, and this caused Monique Edwards apprehension;
  • On 25th February 2013 at about 5.00pm the defendant rode a motor bike from a house at 673 Pine Creek Road and approached Monique Edwards who was on an easement and stopped and watched Monique Edwards and made hand and mouth gestures in the direction of Monique Edwards, and this caused Monique Edwards apprehension;
  • On 25th February 2013 at about 5.15pm the defendant rode a motor bike and approached and watched Monique Edwards who was standing near an easement grid and made hand and mouth gestures in the direction of Monique Edwards, and this caused Monique Edwards apprehension;
  • On 25th February 2013 between 6.00pm and midnight on more than one occasion, the defendant, whilst on a motor bike, approached Monique Edwards’ residence whilst Monique Edwards was present, and the defendant was revving his motor bike and shone a light towards the residence, and this caused Monique Edwards fear;
  • On 5th March 2013 at about 4.30pm the defendant approached an easement near Monique Edwards’ residence and loitered there until 9.15pm and this caused Monique Edwards detriment;
  • On 6th March 2013 at about 9.00pm the defendant loitered near the entrance of Monique Edwards property when she was returning from driving her children to school and watched Monique Edwards, and this caused Monique Edwards detriment;
  • On 6th March 2013 at about 2.20pm the defendant loitered near the entrance of Monique Edwards’ property whilst she was leaving to collect her children from school and the defendant yelled words in the direction of Monique Edwards, and this caused Monique Edwards’ detriment.”

His Honour’s reasons

  1. [19]
    From [31]-[50] his Honour summarised the evidence of the previous animus between the parties. The findings, especially those relating to an incident at the second grid on the easement on 21 June 2012, which led to Mr Ralph being charged and then convicted before another Magistrate of common assault of Monique Edwards, established conclusively that the aggression and animus went both ways. Exhibit 11 is a series of photographs taken by Mr Ralph’s partner Denise during this incident. These were not disputed by the Edwards’, although there is no photo of the assault when Mr Ralph bumped into Mrs Edwards with his shoulder. It is accepted that the photos are after that incident.
  1. [20]
    From [51]-[133] his Honour summarises the evidence of the Edwards’ and the neighbour, Mr Jenner, who witnessed part of the 25 February 2013 incidents. From [134]-[207], his Honour summarises the appellant’s evidence about the antecedent relationship with the Edwards, from [209], he summarises the evidence relating to the overt acts. At [215]-[225], his Honour summarises evidence led by the defence designed to establish an alibi for the appellant in respect of the overt acts alleged from 8 January to 17 January the first three acts particularised in relation to the complainant Ian Edwards; and the first three acts particularised in respect of the complainant Monique Edwards (ignoring the 10th July 2012 act).
  1. [21]
    From [226]-[295], his Honour set out what he designated his “Discussion and Findings”. At [246] he makes this observation:

“[246]The contest is basically one of word against word with some objective evidence in which (sic) has assisted in determining some of the issues and credit (sic) and findings of fact.”

  1. [22]
    Proceeding on the basis that both parties to the appeal accept that proposition, it follows that his Honour’s findings about credit and reliability were critical, given that it was for the prosecution to prove the charges beyond a reasonable doubt. His findings in that regard at [240]-[249] did not paint the complainants in a good light:

“[248]Mr Edwards gave at times credible evidence although some matters about which he, like his wife, gave evidence on are mistaken. (sic) His evidence however suffered when he was not particularly candid about the incident on the second agreed on 6 March 2013 when he and his wife were going to pick their children up from school in their vehicle and I thought at best he was playing down his role in the incident and at worst evasive in some of his answers and not recalling initiating the incident by directing comments towards Mr Ralph.

[249]I do believe that Monique Edwards was a difficult witness as her demeanour in the witness box was a little concerning. She did not allow or listen to questions asked, made statements instead of answering questions asked or before finished and at times gave answers that were unconvincing by not making appropriate concessions, in particular in respect of the incident of 21 June 2012 where she claims to have received a ‘cracked’ chest.”

  1. [23]
    He made a favourable finding about the appellant’s evidence at [251] when he observed:

“[251]A lot of Mr Robert Ralph’s evidence coincides with the evidence of the prosecution witnesses. He, at times, was frank and forthright clearing up some matters in cross-examination and seemed to have a good memory of dates and events.”

  1. [24]
    In his reasons, at [252] he proceeds to make “findings”. The factual findings from [256]-[270] would suggest to me that the relationship between the appellant and the two complainants, at the start of the period of the alleged stalking, was much more in the category of “mutual combat”, rather than “the more clear demarcation between victim and offender roles that is normally seen in characterising stalking”, to quote [228] of his Honour’s reasons.
  1. [25]
    The finding at [278] is in these terms:

“[278]On 23rd of February 2013, Mr Ralph worked on first grid at the entrance to the easement adjacent to Pine Creek Road. Whilst working on the grid he removed signage with numbers and arrows directing traffic to the Edwards’ and other properties and placed them at the bottom of a post. No reason is given by him as to why he did not rehang them.”

  1. [26]
    Although his Honour does not actually say this, it is clear that, in light of the alibi evidence, it was not possible for Mr Ralph to have done the things alleged by MrEdwards from late on 8 January to 17 January 2013. In his statement (as established in cross-examination at T1-59), Mr Edwards had alleged that Ralph had revved his quad bike and ridden up and down the boundary fence line “at all hours of the day and night”, “beginning on the morning of the 9th of January 2013 and continuing for approximately one week.” This scenario would not have been possible, once his Honour accepted, as he properly did, that Ralph was in another part of the State for most of that period. His Honour finds himself “unable to reconcile” the Edwards’ version of events in this period, or that they were mistaken. At [81], he Honour is critical of Mr Eberhardt for suggesting to Mr Edwards that he had lied. He cites Garrett v Nicholson (1999) 21 WAR 226 per Pidgeon J as authority for the proposition that “calling a person a liar is offensive and is unnecessary”. Unfortunately, his Honour does not specify where in the judgment that statement is made. The case was to do with the application of the rule in Browne v Dunn, so, at best, any comment to that effect is obiter. As can be seen from p 243, commencing at [54], indeed his Honour made this comment in the context of discussing how counsel can comply with the rule in Browne v Dunn. It was clearly confined to the circumstances there discussed and should not be relied upon as having general application and providing a mandate for courts to constrain cross-examination. In this State, courts have considerable power to curtail inappropriate questioning: see, for example, s 21 Evidence Act 1977. Generally speaking, it is unnecessary for counsel to resort to such language; but sometimes, in an adversarial system, not only is it appropriate to use such terminology but it may also be fair. If counsel in an address to the fact finder, referred to a witness as a liar without having put that proposition to the witness, he or she would be rightly open to criticism.
  1. [27]
    As I have noted, on the facts as found by his Honour here, this was a case of mutual combat, with both sides behaving badly at times, and if Mr Eberhardt’s instructions were that the witness was deliberately lying, he was obliged to put that to the witness. At the sentence hearing on 15 January 2015 at T1-4 L 4 his Honour seemed to accept that it was “mutual combat to an extent”.
  1. [28]
    Another finding by his Honour relating to the particularised act on 6 March 2013 is also very damaging to the overall credibility and reliability of both Mr and MrsEdwards. These findings are set out at [290]-[293] of his Honour’s reasons:

“[290]On the 6th (March) at about 2.20pm the Edwards’ were going to pick their children up from school. Monique Edwards drove up and stopped the vehicle adjacent to where Ralph was working. Ian Edwards was in the front passenger seat of the vehicle and has leant over and made comments to Mr Ralph who was hunched over working.

[291]After Ian Edwards’ comments, Ralphs has said words to the effect ‘fuck off you’re on my land here it’s not a public place’.

[292]Monique Edwards has also chimed in with a comment to Denise Ryan ‘do you get sick working like a dog’ before driving off.

[293]In my opinion this incident would not have occurred if the Edwards’ had driven through the grid and not stopped and engaged MrRalph with comments. The video of the incidence supports my conclusion. The incident cannot be considered stalking as the Edwards’ were the agitators of the incident and the video clearly indicates the Edwards’ had no fear or could have instilled any apprehension that Ralph would commit an act of violence against them.”

  1. [29]
    This is a very important finding in light of his Honour’s ultimate conclusions; particularly the finding (based on the video of the incident) that “the Edwards were the agitators of the incident… (and)… had no fear or could have had instilled any apprehension that Ralph would commit an act of violence against them”.
  1. [30]
    This finding, in my opinion, coupled with the other adverse credibility findings made by his Honour against the complainants, is simply impossible to reconcile with his Honour’s conclusions which he sets out at [296]-[370]. The critical conclusions are at [305]-[306], and are set out at [2] above.
  1. [31]
    In light of his own findings, in my opinion, it was plainly unreasonable and illogical to find beyond a reasonable doubt that in relation to those acts, the prosecution had satisfied either the s 359B(d)(i) or s 359B(d)(ii) element of the charge in each case. At [316], his Honour extracts and quotes out of context a passage from Mrs Edwards’ evidence-in-chief at T1-117, where in response to a series of questions from his Honour she said that she was afraid that Ralph was going to take her or a member of her family and effectively drown them in his dam. There is not a shred of evidence to suggest that the appellant had ever made such a threat. In light of his Honour’s findings about MrsEdwards’ credit, particularly the finding at [293], it was completely unreasonable for his Honour to rely on this evidence as proof of the above elements, when, at best, it could only be described as irrational and illogical. His conclusion at [317] is irreconcilable with the other findings set out above. Although no point is made about this on appeal, the putting up of the “no trespassers” sign was never particularised as an act going to proof of the s 359B(c) element of either charge, in any event.
  1. [32]
    It follows that on a review of the evidence in his Honour’s findings of fact, and accepting those facts, the prosecution has failed to prove that either of the acts alleged on 25 February and 5 March was sufficient to satisfy his Honour to the requisite standard of either charge.
  1. [33]
    This leaves only the incident on 25 February involving the gestures and the staring. As the prosecution has failed in proving an essential element of the offences, in relation to the two acts discussed above, and on the basis of my findings of error on his Honour’s part; at best, the prosecution case is left with one act which, on any view, could not be regarded as protracted. His Honour’s findings in this regard relate to his preference for the evidence of Mr Jenner, and those findings are not impugned on appeal. As his Honour noted, that afternoon Jenner had threatened Ralph that if he did not remove his cattle from Jenner’s property he would shoot them. Little regard seems to have been had during the trial to the particulars upon which the prosecution case was based and, in relation to the 25 February incidents, his Honour’s conclusions are frankly confusing. Both Counsel have proceeded on the basis that it was the incident in which he rode past and made masturbation gestures, and staring, that was the part of the late afternoon conduct on that day that his Honour found proved. This seems to be the incident to which his Honour referred to at [305] of his reasons. Of course, if he was relying on Jenner’s evidence as “objectively” supporting the Edwards’ evidence, then Mr Jenner referred only to the “dickhead” gestures on the way past, prior to his heated confrontation with Ralph in which he wanted to fight him, and prior to the incident where he had returned to where he and Edwards’ were standing, and on that occasion, in his evidence in chief, he made reference only to Ralph and Denise “staring at Ian and Monique”, and makes no reference to “dickhead” or “masturbation” gestures. His Honour does not make it clear that he was relying on Jenner, but his evidence is clearly in conflict with the Edwards’ evidence about this part of the incident summarised at [206] – [207]. Nothing is made of this on appeal, so it plays no part in my ultimate decision. The same difficulty arises for these acts, as arose for the remaining acts found proved by his Honour, and that is, his own reasoning did permit a conclusion that, in relation to any of these acts, the prosecution had satisfied him of the elements of the charge contemplated in s 359B(d)(i) or (ii).
  1. [34]
    In his conclusions, at [313]-[317], his Honour did not explain clearly why, if in fact the prosecution had proved apprehension or fear or detriment, it had objectively established that such apprehension or fear or detriment arose in all the circumstances. It is clear on the basis of the totality of his Honour’s findings of fact that the prosecution could never establish beyond a reasonable doubt that any fear or apprehension or detriment caused by the three acts, reasonably arose in all the circumstances, where those circumstances logically indicated that this indeed was a case of mutual combat. It is impossible to reconcile his Honour’s conclusions, for example, in relation to the 6 March incident, where he found that the Edwards were “the agitators” and were not in a state of “apprehension or fear”, with his findings that they were, in such a state in relation to one part of the incident/incidents of 25 February 2013.
  1. [35]
    The case of Garrett v Nicholson referred to earlier does refer to the well-established principle that the finder of fact can “accept or reject the whole or any part of the evidence (of a witness)”; but his Honour’s own findings here did not permit him to compartmentalise his conclusions in the way he has.
  1. [36]
    My intention has been to demonstrate, that even accepting as correct his Honour’s findings of fact, including his reliability findings, he erred by concluding that, on the basis of the three acts, the prosecution had satisfied him of all the elements of each charge beyond a reasonable doubt. His errors were of the House v The King (1936) 55 CLR 499 at 505 kind. Even so, I am nevertheless satisfied that his Honour has, on the basis of his own reasoning, acted on evidence which was “inconsistent with facts incontrovertibly established by (other) evidence”; in the sense referred to in the categories mentioned in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 379.
  1. [37]
    It follows that the appeals against conviction must succeed.

Appeal against sentence

  1. [38]
    As noted in the grounds of appeal the only aspect of the “sentence” impugned is the making of the 359F restraining order in relation to both complainants for a period of two years. The respondent argues that such a finding is not amenable to appeal under s 222. Mr Cummings relies principally on the reasoning of Fraser JA (with whom KeaneJA (as his Honour then was) and Atkinson J agreed) in R v Johnston [2008] QCA 291.
  1. [39]
    That applicant had been convicted on his own plea of guilty of aggravated stalking. He was sentenced to a term of imprisonment and a number of restraining orders were made pursuant to s 359F. It was only one of the restraining orders that was challenged on appeal. The Court held that it did not have jurisdiction to hear the appeal, however, the applicant could have applied to the District Court to have the restraining order revoked or modified by way of appeal in the civil jurisdiction of that court. His Honour’s reasoning focused on the wording of s 668D(i)(c) of the Criminal Code and s 359F(2). At paragraphs [5] to [9] his Honour wrote:

“[5]Section 668D(1)(c) of the Criminal Code confers a right to apply for leave to appeal ‘against the sentence passed on the person’s conviction’. In my opinion the restraining order is not a sentence against which an appeal may be brought under s 668D(1)(c) of the Code. The term ‘sentence’ is defined in s 668(1) as including ‘any order made by the court of trial on conviction of a person with reference to the person’s person or property, whether or not the person is adversely affected thereby and whether or not the order is made instead of passing sentence’. The words ‘on conviction’ mean ‘in consequence of conviction’: see R v Blow [1963] QWN 1 per Gibbs J at 4, following R v Harman [1959] 2 QB 134. R v Blow was followed in R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, in which McPhersonJA observed that it is not every order following chronologically after conviction that amounts to a ‘sentence’ on conviction: ‘There must be a relationship of some discernible kind between the two in order to make it an order or ‘sentence’ in the defined sense.’

[6]As to that, s 359F(2) of the Code provides:

‘(2)Whether the person is found guilty or not guilty or the prosecution ends in another way, if the presiding judge or magistrate considers it desirable, the judge or magistrate may constitute the court to consider whether a restraining order should be made against the person.’

[7]The judge or magistrate may act under that provision on application by the Crown or an interested person or on the judge’s or magistrate’s own initiative: s 359F(3). Subsection 359F(6) provides that the court may make a restraining order if it considers it desirable to do so having regard to the evidence given at the hearing of the charge and any application under subsection (3) and any further evidence the court may admit. Further, s 359F(10) of the Code provides that a restraining order proceeding is not a criminal proceeding. That perhaps explains why s 359F(2) includes what otherwise appears to be the unnecessary provision for the judge or magistrate hearing a charge to ‘constitute the court to consider whether a restraining order should be made against the person’.

[8]Those provisions make it plain that a restraining order is not a sentence. A restraining order lacks the requisite relationship with a conviction and it is made in the exercise of the relevant court’s civil jurisdiction rather than its criminal jurisdiction. It follows that the applicant had no right to apply for leave to appeal under s 668D(1)(c) of the Criminal Code.

[9]However, because the order was made in the exercise of the District Court’s civil jurisdiction s 118(1)(a) of the District Court of Queensland Act 1967 (Qld) did not exclude an appeal from the order under s 118(3). That provision therefore conferred upon the applicant a right to apply for leave to appeal from the restraining order. Importantly though, numerous authorities establish that leave to appeal under s 118(3) is ordinarily granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected: see, for example, Pickering v McArthur [2005] QCA 294.”

  1. [40]
    I am prepared to accept that a rehearing on appeal qualifies as a “hearing” as referred to in s 359F(i). I think the answer here lies in the wording if s 359F(2). It is clear from the interchange between the Bench and the legal representatives at the sentencing hearing, that his Honour exercised his discretion to make the restraining orders on the basis of his findings of guilt, not on any other basis. This is clear from the wording of subsection (6). It is clear from the reasons that his Honour exercised the discretion to make the restraining orders on the basis of the acts he found proved, and on the basis that the conduct amounted to unlawful stalking. The fall of the convictions therefore disposes of the restraining orders.
  1. [41]
    It is therefore not necessary for me to resolve the argument between the parties on this issue. Because of the wide definition of “order” in the Justices Act 1886; there maybe some merit in the argument that the reasoning in R v Johnson can be distinguished. The decision in Schneider v Curtis [1967] Qd. R. 300, and particularly the statement of Gibbs J (as his Honour then was) at p 305 i.e. that “order” in s 222 refers “to an order disposing of the complaint itself”, which decision has been followed frequently since: see for example Coulter v Ryan [2006] QCA 567, probably favours the respondent’s argument that no appeal lies under s 222 from the making of a restraining order under s 359F of the Criminal Code. The application under s 359F is a separate proceeding, not criminal, albeit connected to the complaint of stalking, and the same result may follow as it did in Johnson, that an appeal may lie to this Court under s 45 of the Magistrates Court Act 1921.
  1. [42]
    The orders are:
  1. The appeals are allowed.
  1. The orders made below are set aside.
  1. Verdicts of acquittal are entered in relation to both charges.
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Editorial Notes

  • Published Case Name:

    Robert Peter Ralph v Commissioner of Police

  • Shortened Case Name:

    Ralph v Commissioner of Police

  • MNC:

    [2015] QDC 206

  • Court:

    QDC

  • Judge(s):

    Robertson DCJ

  • Date:

    26 Aug 2015

Appeal Status

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