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  4. McNicol v Queensland Police Service - [2015] QDC 39

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McNicol v Queensland Police Service[2015] QDC 39

McNicol v Queensland Police Service[2015] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

McNicol v Queensland Police Service [2015] QDC 39

PARTIES:

DEAN STUART McNICOL

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

D58/14

DIVISION:

APPELLATE

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport

DELIVERED ON:

27 February 2015

DELIVERED AT:

BRISBANE

HEARING DATE:

17 July 2014, 15 September 2014

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – STALKING – APPEAL AGAINST CONVICTION, SENTENCE AND RESTRAINING ORDER – whether evidence established guilt beyond reasonable doubt – whether conduct intentionally directed at complainant – whether s 359D engaged – whether admission of DVD record of interview was in error – whether error in refusing the defendant to tender internet articles and the reasons for judgment in a civil proceeding in the Supreme Court – whether defendant wrongly prevented from pursuing a line of cross-examination – whether evidence of particular witnesses ought to have been accepted or regarded – whether sufficient evidence of an effect of the kind provided for in s 359B (d) – whether the Magistrate erred in failing to declare pre-sentence custody – whether sentence ought to be disturbed – whether error in the course of the application for a restraining order or in settling the terms of the order.

COUNSEL:

Mr P Kay for the Respondent

APPEARANCES:

Mr D McNicol appearing in person

Contents

Introduction3

Unlawful stalking3

The evidence6

The findings 16

The appeal19

(i) Appeal against conviction19

Ground 1 – The Magistrate erred in his decision that the protest outside Fitness First by the defendant was an act of unlawful stalking.19

Ground 2 – wrongful admission of DVD recordings of the appellant’s police interview23

Ground 3 – The Magistrate erred in deciding that the email messages to gym managers constituted unlawful stalking.25

Ground 5 – The Magistrate erred in finding the alleged Facebook correspondence constituted unlawful stalking.25

Ground 4 – The Magistrate erred in finding the incidents at the shopping centre constituted stalking.29

Ground 6 – The Magistrate erred in not allowing the appellant to tender internet media articles as evidence.30

Ground 7 – The Magistrate erred in his decision in not allowing the appellant to tender a Supreme Court decision is evidence in the trial.31

Ground 8 – The Magistrate erred in his decision that the complainant suffered fear, apprehension, and emotional distress.37

Ground 12 – The Magistrate erred in stopping a line of questioning of Marie Griffiths.42

Ground 13 – The Magistrate erred in his decision in there was no evidence to find the appellant guilty beyond reasonable doubt.44

S 359D45

Conclusion on appeal against conviction45

(ii) Appeal against sentence46

Ground 10 – The Magistrate erred in his decision in not specifying if the concept of time served was dealt with in his decision.46

(iii) Appeal against the restraining order47

Ground 11 – The Magistrate erred in conducting the process of granting a restraining order before he handed down his decision.47

Ground 9 – The Magistrate erred in his decision in setting conditions on the restraining order.49

Introduction

  1. [1]
    On 10 February 2014 the appellant, who is a middle aged man, was convicted of unlawfully stalking a young, female gym instructor (the complainant) in the period between 1 January 2012 and 18 January 2013.  The conviction followed a nine day trial, which concluded with addresses on 19 November 2013.  The appellant was self-represented at trial and on this appeal.  He was sentenced to a term of imprisonment of eight months, which was fully suspended for an operational period of two years.  In arriving at that sentence, the learned magistrate had regard to 131 days of pre‑sentence custody which had been served by the appellant.  A restraining order was also made pursuant to s 359F of the Criminal Code.  The appeal is against conviction, sentence and the restraining order.

Unlawful stalking

  1. [2]
    “Unlawful stalking” is defined in s 359B of the Criminal Code as follows:

“Unlawful stalking is conduct—

  1. intentionally directed at a person (the stalked person); and
  2. engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  3. consisting of 1 or more acts of the following, or a similar, type—
  1. following, loitering near, watching or approaching a person;
  2. contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
  3. loitering near, watching, approaching or entering a place where a person lives, works or visits;
  4. leaving offensive material where it will be found by, given to or brought to the attention of, a person;
  5. giving offensive material to a person, directly or indirectly;
  6. an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
  7. an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
  1. that—
  1. 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
  2. causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”
  1. [3]
    Section 359A defines “circumstances” to mean the following circumstances:

“(a)  the alleged stalker's circumstances;

  1. the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;
  2. the circumstances surrounding the unlawful stalking;
  3. any other relevant circumstances.”

and “detriment” to include:

“(a)  apprehension or fear of violence to, or against property of, the stalked person or another person;

  1. serious mental, psychological or emotional harm;
  2. prevention or hindrance from doing an act a person is lawfully entitled to do;
  3. compulsion to do an act a person is lawfully entitled to abstain from doing.

Examples of paragraph (c)—

A person no longer walks outside the person's place of residence or employment.

A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places.

Example of paragraph (d)—

A person sells a property the person would not otherwise sell.”

  1. [4]
    Section 359C specifies matters which are immaterial for unlawful stalking.  It provides:

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

  1. intends that the stalked person be aware the conduct is directed at the stalked person; or
  2. has a mistaken belief about the identity of the person at whom the conduct is intentionally directed.
  1. For section 359B(b), it is immaterial whether the conduct throughout the occasion on which the conduct is protracted, or the conduct on each of a number of occasions, consists of the same or different acts.
  2. For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment, mentioned in the section.
  3. For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is actually caused.”
  1. [5]
    Section 359D provides that the unlawful stalking does not include the following:

“(a)  acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act;

  1. acts done for the purposes of a genuine industrial dispute;
  2. acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest;
  3. reasonable conduct engaged in by a person for the person's lawful trade, business or occupation;
  4. reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.”
  1. [6]
    The appellant’s case at trial was that he had done nothing which would constitute unlawful stalking and that at least some of what he did fell within s 359D. 

The evidence

  1. [7]
    At trial, the prosecution called 12 witnesses, each of whom was found to be a witness of credit.  Having summarised the evidence of each, the learned Magistrate “found the combined evidence of the prosecution witnesses to be corroborative in nature” and accepted that evidence.
  2. [8]
    The evidence of the witnesses called by the prosecution was, amongst other things, to the following effect:
  • From the end of 2011 the complainant was a junior or trainee fitness instructor at the Fitness First gym at Robina.  She was assigned a mentor (Eve Phelan).[1]
  • The defendant, who claims a history as an instructor himself, was a member of the gym and took some classes led by the complainant and her mentor.  The complainant first met him at the start of 2012.[2]
  • In the course of those classes, the defendant was observed to follow the complainant including by moving whenever she moved.[3]  The conduct was unlike others in the class.[4]
  • In early 2012 the appellant had a number of conversations with the complainant’s mentor, commenting on the job the complainant was doing and, amongst other things, suggesting that the mentor organise for the complainant to come over so that his mother could help her with her vocal tone or capacity (an offer the mentor rejected).[5]
  • At around this time the appellant was having conversations with the complainant before and after classes.  Those conversations became more frequent and the appellant began offering her assistance with her training and giving her feedback.  The complainant politely declined the offer of assistance outside of the gym, explaining that she had a mentor.[6]
  • At some point the appellant gave another gym member a note with a telephone number on it and asked it to be passed to the complainant.  Instead of passing the note to the complainant, the person passed it to the complainant’s mentor.[7]  The complainant was informed of what had happened.[8]  Subsequently the appellant approached the complainant after class and asked whether she had received the note, to which she responded in the negative.[9] She thought that his approach was “really, extremely – like, too far” and “a bit weird”.  This was the point at which the complainant began to feel intimidated by the appellant.[10]
  • By this time the complainant “was avoiding conversation as much as possible and not hanging around the room before and after class, just trying to stay out of the way because that was extremely uncomfortable for me”.[11] 
  • The complainant’s mentor had reported to the general manager of the gym (Rebel Whale) about the feedback the appellant was giving to the complainant and also something else about another instructor.  Consequently, a meeting was arranged with the appellant during which the general manager informed him that he was not to approach either the complainant or the other instructor and that his membership would be cancelled if he approached either.[12]
  • The general manager informed the complainant of the warning that had been given to the appellant.[13]  The appellant then approached the complainant the very same day.[14] The general manager ultimately cancelled the appellant’s membership as a consequence of the second instructor reporting that the appellant had approached her.[15]
  • The appellant did not take his expulsion from the gym well.  He took to standing at the front door of the gym handing out flyers to complain of his expulsion.  He even dressed in red “devil” horns whilst doing so.[16]
  • The gym publishes a timetable of its classes.  The appellant’s protests outside the gym coincided with times when the complainant was scheduled to take classes.  The protests did not occur at times when she just turned up to train at random.[17] Consequently, the complainant suffered the anxiety of having to negotiate the appellant’s protest in order to access her workplace.  The complainant described this as follows:[18]

“It was horrible.  Really, walking into work where you should just feel and you shouldn’t have any worries, I was getting there and hating having to get out of the car and walk in.  The first few times, I called someone to – you know, saying what’s going on?  Can you come and walk me in, and then leaving, you know, going out of the door just hoping that he wouldn’t be there.”

“--- I – the first few times that he was there I wanted for someone else to arrive to walk with. 

Okay? --- Any other time I would pretend to be on my phone or be fiddling with something just to avoid any eye contact or any confrontation at all.”

  • The complainant’s mother described seeing her crying and upset about this.[20]
  • During this time the complainant found, on two occasions, material left under the windscreen of her car which had been parked at the gym.[21]  On the first occasion, it was a copy of a lengthy email (6 or 7 pages long) to Fitness First with highlighted passages.  On the second, it was a piece of paper with a handwritten note asking that the complainant’s parents call a certain telephone number.  The complainant inferred that this was from the appellant and she became fearful that he knew of her car and that he might follow her home or to other places.[22]  The complainant told her mother who described her as quite stressed.[23]
  • Later that year, there were a number of incidents at the Robina Shopping Centre, where the complainant was employed by an organisation (Cotton On) which had two stores opposite each other.[24] 
  • There were incidents relating to the shop.  The first of those occurred when the appellant entered the store where the complainant was working on a particular day.  The complainant had not previously seen the appellant at the shop or at the shopping centre.  The complainant said hello before recognising who it was.  The appellant then told her about a payment he had received from Fitness First.  The complainant said that she had to get back to work, turned around and walked away.[25]  This contact made the complainant anxious.  She did not know whether the contact was coincidental, but realised that the appellant now knew of another of her places of work, which caused her to be worried.[26] 
  • Thereafter, whilst working at the shop on the opposite side (the one in which she usually worked) she observed the appellant on a number of occasions walk past the shop where they had spoken and look in without proceeding into the shop.[27]  Although she had not seen him walk past the shop prior to their conversation,[28] he thereafter walked past pretty much every time she was there,[29] at least for a time.[30]  This caused the complainant to become worried.[31]
  • The complainant’s employer told the complainant something about the appellant’s conduct when she was not at the shop and moved her elsewhere, to another shop within the franchise, for a couple of weeks.[32]
  • When working, the complainant would, at least sometimes, have someone walk her to her car.[33]
  • There were also incidents at the shopping centre more generally.  The first of those was when the complainant and her boyfriend had just got off an escalator near Woolworths.  The appellant came up to them.  The complainant’s boyfriend described him as “pretty much power walking towards us”.[34]  The appellant told the complainant that he had sent her a Facebook message.[35]  The complainant and her boyfriend walked off.  The complainant’s boyfriend described the complainant as “shaking” and “scared” in a way that he had never seen her before.[36]  The complainant checked, but found no Facebook message.[37]
  • The second of the shopping centre incidents occurred when the complainant was walking with her mother on the way out of the shopping centre, towards the car park.  The appellant approached them and tried to introduce himself to the complainant’s mother.  They initially ignored him, but he kept walking beside them for a significant distance before the complainant’s mother had firm words with him, telling him to stop.[38]  By this time the complainant was, in her words:[39]

“… getting really frightened, thinking that every time I come – every time I go to the shops or go to work.  He’s popping up out of nowhere.  I can’t go anywhere without being on edge and walking around – you know, turning my head over my shoulder, everyone I see that slightly resembled Mr McNicol, you know, not being able to walk around comfortably without feeling like I’m going to run into him and feel uncomfortable.”

  • The complainant’s mother described the complainant’s reaction as being “really scared”, “terrified”, freezing and bursting into tears.[40]
  • The third shopping centre incident occurred when the complainant was again with her boyfriend.  They were in the food court.  The appellant approached them from behind.  The complainant’s evidence was that he:[41]

“… just started raving on all this stuff at us saying that his lawyers wanted to sue me for defamation and all of these things, it was just a big jumble and I didn’t – I didn’t say anything.  I was shaking.  Like, just completely went into a little shell and my boyfriend just said to him, well, how do you think all of this is making her feel and then told him that he didn’t want to see me – didn’t want to see me near him again and we got up and left and went outside.”

  • The complainant described the appellant as being “a bit more fired up” on this third occasion at the shopping centre and felt more threatened than at any other time.  She went outside and took some deep breaths to settle down.[42]  The complainant’s boyfriend described the complainant grabbing his hand quite tightly, going quiet and “shutting off”, crying, shaking and being very upset.[43]
  • After the incidents at the shopping centre things quietened down for a while until the appellant began contacting other gyms at which the complainant had come to work.[44]
  • There is a fitness centre at the Southport Sharks Club.  The complainant became a contractor to provide group fitness classes there.  The general manager of business development, fitness and events, gave evidence that numerous emails began to arrive from the appellant in November 2012.  Facebook messages were also sent by him.  The effect of the communications was that the gym should not be engaging the complainant.  The tone of the correspondence became more aggressive and caused increasing levels of concern.[45]  The communications, including emails and Facebook posts threatening boycotts and litigation, were received in the face of a reply at the outset, asking that those stop.[46]  The complainant was told what was happening and was offered support, including a security escort to and from her car whilst attending the gym.[47]
  • The complainant came to work at World Gym at Ashmore, where she took a group fitness class on a permanent basis and had done some casual work as well.[48]  The owner of that gym received emails, apparently from the appellant, and spoke with him by telephone on two occasions.  Having reviewed emails which threatened to sue the gym, the owner initially decided to ignore it, but then his wife started getting emails, as did he and the club.  He then had a telephone conversation with the appellant in which it was agreed that the appellant would take them off his email list and not use the gym.  Thereafter, however, an email arrived threatening legal action and threatening to send Facebook messages to the gym members.  More and more emails were received, including copies of group emails and personal emails.[49]  The communications contained allegations to the effect that the complainant had made false allegations against the appellant and that by employing her the gym was putting itself at risk.[50]  The complainant also saw a Facebook message to members of World Gym which her boyfriend had received and which accused her of falsely accusing the appellant and warning that she could do it to them.[51]
  • This prompted the owner of the gym to ring the appellant and, in a heated conversation, tell him to leave the gym alone.  The owner then received further email communications, including a copy of a group email in which the appellant wrongly claimed to have been threatened by the owner of the gym.  The owner then took advice, which included that he should arrange for the complainant to be escorted to and from the gym.  This caused him to question whether he should keep her as an employee.[52]  The complainant was told of the email communication[53] and was advised to go to the police.[54] 
  • At around this time, the complainant’s boyfriend saw the appellant at the shopping centre whilst the complainant was off making a statement at the Robina Police Station.  The two spoke for some time.  The complainant’s boyfriend told the appellant to stop sending emails and messages[55] and asked him how he thought all this was making the complainant feel.  The appellant responded putting blame on the complainant but also said words to the effect that he was stupid for sending them.  The appellant tried to give the complainant’s boyfriend his number, but the offer was refused.[56]
  • As a result of the appellant’s course of conduct the complainant was fearing the worst about what the appellant might do to her, had been mentally and emotionally affected, and had had many sleepless nights of worry.[57]  Prior to the various incidents with the appellant, the complainant had been an easy-going, happy-go-lucky, person who did not stress about too much.[58]
  • The communications with the gyms which engaged her triggered the complainant to go to the police.  A search warrant was executed at the appellant’s premises.  It was discovered that he had four images of the complainant on his computer.  He was interviewed and charged.
  1. [9]
    The appellant elected to give evidence at his trial.  He:
  • denied following the complainant in class;
  • denied that he was initially told the reason for the cancellation of his gym membership;
  • said that he thought that the cancellation must have been due to his history of being an instructor;
  • claimed that he only came to know of allegations about his conduct towards the complainant by reason of a subsequent telephone call from an unidentified person and from a letter, dated 21 February 2012, which gave the reason for his membership termination as being inappropriate behaviour towards young, female group fitness instructors, with specific reference to a 17-year-old instructor;
  • maintained that his protest at the front of the gym was directed at Fitness First rather than the complainant.  He referred to a protest he had previously conducted over an issue at Bond University which had led to his being charged with stalking, but ultimately only dealt with by way of a restraining order;
  • denied knowing the complainant’s vehicle and said that he gave a note to someone else to pass to the complainant so that her parents could contact him.  He explained this by reference to his concern for her;
  • explained that the photos of the complainant on his computer were part of proving some point about her employment;
  • denied the episodes at the shopping centre, other than the first meeting in the shop;
  • was somewhat evasive about his electronic communications with the other gyms but painted his conduct as part of defending himself against false allegations; and
  • asserted that the police investigation, his arrest and the evidence were tainted by corrupt practices.

The findings

  1. [10]
    The learned magistrate made the following observations about the appellant’s evidence:

“I found Mr McNicol used the court proceedings to criticise the conduct and character of prosecution witnesses, the conduct of the police prosecutor, the conduct of solicitors for Fitness First, the management of the fitness centres and gyms which employed Ms Rowe, the Cotton On stores, suggesting steroid abuse and supplement abuse at the gyms, the Gold Coast Suns, the Gold Coast Titans, Queensland Police Service and Australian Federal Police, suggesting a conspiracy between Fitness First, their solicitors, Ms Rowe, the gyms, all prosecution witnesses, the Queensland Police Service and the Australian Federal Police.

Mr McNicol made very sharp criticisms and assessment of the person he purportedly wanted to help, that being Ms Rowe, sensing Ms Rowe was academically and physically challenged and was morally corrupt.

I found Mr McNicol’s evidence-in-chief was similar to the electronic record of interview.  The witness was very confident in his version of events involving Fitness First and Ms Rowe.  However, in cross-examination, the witness was less clear and less confident responding to questions put to him by the prosecutor.  It did become apparent that the witness was somewhat evasive in respect to some issues and did appear to contradict his own evidence and the evidence contained in the electronic record of interview.

Mr McNicol’s evidence and denial of the emails and Facebook messages, which were put to him in the electronic record of interview, was contradicted by his own evidence of conversations with various witnesses as to emails and Facebook messages.  Mr McNicol had made a valid point as to the apparent lack of evidence of proof as to him sending the emails and Facebook messages.  However, his admissions of subsequent discussions and conversations with various prosecution witnesses supports a finding that he did in fact send emails and Facebook messages as alleged by the prosecution.

I found Mr McNicol in his evidence-in-chief and in cross-examination relied upon his conspiracy theories, media reports of unrelated events, innuendo and an unshakeable belief in his expertise in various fields to misinterpret events that unfolded involving himself, Fitness First and prosecution witnesses, particularly Ms Rowe.  I do not accept Mr McNicol as a witness of credit.”

The learned magistrate expressly rejected the appellant’s evidence.

  1. [11]
    The appellant complained that the learned Magistrate ought not have accepted the evidence of the witnesses called by the prosecution.  I am, of course, mindful of the advantages the learned magistrate had in hearing the evidence and observing the witnesses.  Having read the transcript of the evidence, I can find no sufficient basis to disturb his Honour’s findings with respect to the credibility and reliability of the witnesses. 
  2. [12]
    On the basis of the evidence accepted at trial, the learned magistrate found that the appellant was guilty of stalking and that the stalking was constituted by the following acts:
  1. the unusual and inappropriate conduct of following and approaching Ms Rowe in gym classes;
  2. the approach to Ms Campbell, supplying a telephone number for contact for Ms Rowe;
  3. the approach to Ms Rowe to enquire if she had received the telephone number;
  4. the approach to Ms Rowe at the gym after being directed by management not to approach Ms Rowe;
  5. the giving of emails to a person at the gym to supply the documents to Ms Rowe;[59]
  6. the protest of standing outside the gym over a period of months which caused concern and apprehension to Ms Rowe as she was required to enter and leave the gym;
  7. the contact with Ms Rowe in the Cotton On store;
  8. the contact with Ms Rowe at the Robina Shopping Centre whilst she was in company with Jay Tippett;
  9. the contact with Ms Rowe near Kmart in the Robina Shopping Centre whilst she was in company with her mother;
  10. the contact with Ms Rowe in the food court of the Robina Shopping Centre whilst in the company of Jay Tippett;
  11. the various email messages and Facebook messages directed to persons who would have control over Ms Rowe’s career, including World Gym and Sharks.
  1. [13]
    As to the other elements of s 359B, the learned magistrate found (adopting the paragraph numbering from the section):
  1. (a)
    the acts were intentionally directed at the complainant;
  2. (b)
    engaged in on more than one occasion, as a course of conduct by the appellant;
  1. (d)
    - it is reasonable that a person in the position of the complainant would suffer fear, apprehension and emotional distress as a result of the appellant’s continued action and conduct and such fear, apprehension and emotional distress was in fact caused to the complainant; - the electronic communications with the complainant’s employer’s caused the complainant a detriment reasonably arising in the circumstances.
  1. [14]
    The learned magistrate rejected what was described as the appellant’s “defence” under s 359D.  That is an inaccurate description.  Section 359D is not a defence.  Rather, it specifies acts which do not constitute stalking.  That misdescription, however, had no effect on the verdict.

The appeal

  1. [15]
    The appeal came on for hearing on 17 July 2014, but was adjourned to give the appellant an opportunity to reconsider his grounds of appeal.  This led to the appellant filing a new outline of argument on 11 August 2014.  An exchange of further outlines followed before the matter again came on for hearing on 15 September.  On that day the appellant confirmed that, insofar as his arguments were concerned, everything which preceded his new outline of 11 August 2014 could be disregarded.  His appeal is against:
    1. (i)
      conviction;
    2. (ii)
      sentence;
    3. (iii)
      the restraining order.

(i) Appeal against conviction

  1. [16]
    The appellant’s new outline of argument contains 13 grounds, 10 of which relate to the appeal against conviction.

Ground 1 – The Magistrate erred in his decision that the protest outside Fitness First by the defendant was an act of unlawful stalking.

  1. [17]
    The appellant contends that:
    1. (i)
      the protest was not directed at the defendant,
    2. (ii)
      the protest fell within s 359D, and
    3. (iii)
      the defendant did not suffer a detriment as a result of the protest
  2. [18]
    Section 359B requires the conduct, said to constitute unlawful stalking, to be intentionally directed at the stalked person.  Although, by reasons of s 359C:
    1. (i)
      it is immaterial whether the person doing the unlawful stalking intends that the stalked person be aware the conduct is directed at the stalked person, and
    2. (ii)
      it is immaterial whether the conduct directed at the stalked person consists of conduct carried out in relation to another person or property of another person.
  3. [19]
    The protest outside the gym was, as the appellant points out, about the cancellation of his gym membership.  That cancellation had been effected by someone other than the complainant and there is no suggestion that the flyers handed out made any reference to the complainant (although the cancellation of the membership followed a warning against him approaching the complainant or another particular instructor).
  4. [20]
    The learned Magistrate was alive to this issue.  As recorded in the reasons, the prosecutor had invited the learned Magistrate to draw an inference that the conduct of the appellant in carrying out his protest was, at least in part, directed at the complainant.[60]  The learned Magistrate found that the acts of stalking were intentionally directed at the complainant, but unfortunately did not, in relation to this part of the appellant’s conduct, descend to explaining the basis for that finding.
  5. [21]
    The appellant’s protest was obviously intended to be seen by all those, including the complainant, who walked passed to enter or exit the gym, but I do not consider that that establishes that the protest was part of conduct intentionally directed at all those persons.
  6. [22]
    It has already been noted that the prosecution invited an inference to be drawn.  It was contended that the inference arose from the events leading up to the protest and especially considering what was left on the complainant’s car during this time.  It may readily be inferred, on the evidence accepted by the learned Magistrate, that the appellant had an interest in the complainant and in making some point to her and her parents at the time, but that does not necessarily mean (to the relevant standard) that the conduct in standing out in front of the gym and handing out flyers was conduct intentionally directed at the complainant.
  7. [23]
    The complainant’s evidence (that the appellant was conducting his protest whenever she was scheduled to take a class, but not when she attended the gym at a random time) raises a suspicion that the conduct may have been directed, at least in part, at the complainant.  That evidence does not establish that the protest only ever coincided with one of the complainant’s scheduled classes.  The evidence of others who saw the protest was not specific on that matter.  
  8. [24]
    Had the evidence otherwise established that the protest out the front of the gym only ever coincided with a scheduled class by the complainant, then it might have been right to infer that the conduct was indeed directed at her.  In the absence of such evidence, however, I am left short of being persuaded that the evidence justified a finding, beyond reasonable doubt, that the protest outside the gym was directed at the complainant.  The evidence was also consistent with this part of the appellant’s conduct being directed at Fitness First only and not at the complainant.
  9. [25]
    The conduct of the appellant in standing outside the gym, with devil’s horns, handing out flyers to passers-by taking issue with Fitness First over the termination of his membership should not have been found to be a particular of the acts of stalking.  That conclusion makes it unnecessary to consider the balance of the appellant’s arguments on this ground, but I will say something about these, given the submissions that were made.
  10. [26]
    The appellant submitted that the protest was part of a genuine public dispute of the kind referred to in s 359D(c) namely his dispute with Fitness First.  That dispute resulted in litigation in the Supreme Court. 
  11. [27]
    The difficulty for the appellant’s argument, however, is that, assuming the protest was for the purposes of that dispute, it was not a genuine “public” dispute.   In context, a public dispute is a dispute the subject matter of which is public (i.e. concerning something in which the public at large or a significant proportion, has an interest).  In this case the dispute was a private dispute between Fitness First and the appellant about a gym membership.  The fact that the appellant chose to protest about it publicly and in a way which attracted publicity did not convert the dispute from a private to a public dispute.
  12. [28]
    The appellant’s submission that the protest did not cause a relevant detriment to the complainant is misplaced, even putting to one side the evidence of the complainant about the effect upon her of having to negotiate the protest to get to and from her workplace.  Section 359B requires the relevant “conduct” to have one of the two consequences in subparagraph (d).  The ‘conduct’ may consist of more than one act.  It is the act or, in this case, the combination of acts comprising the relevant conduct which must have the relevant effect. It is not necessary that each act have that consequence.  Here the learned Magistrate found that the various acts were part of a single course of conduct.[61]

Ground 2 – wrongful admission of DVD recordings of the appellant’s police interview

  1. [29]
    The appellant participated in an interview with police prior to the trial.  The audio recording of the interview was disclosed.  It was apparently given to the appellant on 2 February 2013.  In the course of the interview various documents were shown to the appellant.  These were authenticated by the interviewing police officer.  It was not until the morning of the third day of the trial however, that the prosecutor was provided with a DVD of the interview.  That DVD version was ultimately admitted into evidence over the appellant’s objection. 
  2. [30]
    The learned Magistrate was rightly concerned about the failure to disclose the DVDs in a timely way, but admitted the evidence after satisfying himself that the appellant had not been unfairly taken by surprise and would suffer no real prejudice.[62]
  3. [31]
    It is difficult to see how the appellant could be unfairly surprised about the content of the evidence to be proved by the DVDs.  He had, of course, been present at the interview in question.  He had ample notice of what was said in the interview, because he had the audio recording.  At trial he said that he had no way of knowing if the DVDs had been edited, however he declined an opportunity to view them before any ruling on their admissibility.
  4. [32]
    The appellant claims that the problem with using the DVDs is that, during the interview, he was shown copies of documents which were held up to the screen.  He says he had no way of authenticating that the documents in the DVD were the same as those in the police brief of evidence.  He says that he had prepared his case on the assumption that the documents shown to him in the interview could not be tendered at trial, as notice was only given of an audio recording.  If the appellant made that assumption then it was not well based.
  5. [33]
    The documents referred to in the interview were separately tendered through Ottaway, who had conducted the interview together with officer Illidge from the Australian Federal Police.  That could have been done whether the interview was played to the court as a DVD or only as an audio recording.  Further, after they were tendered, the appellant did not suggest to Ottaway (or indeed to Illidge) that the documents were not those used in the interview (notwithstanding cross-examining Ottaway over 3 days) nor did he otherwise disprove the evidence of Ottaway that those were the relevant documents.
  6. [34]
    On the hearing of the appeal, the appellant said that he had since noticed that the copy of a statement used in the vision on the DVDs seemed to be of a different length to the version of the statement disclosed to him.  That is something which, in hindsight, he might have pursued.  However, he not only refused an opportunity to view the DVDs before they were admitted,[63] but the DVDs were played[64] and the appellant did not pursue this point at the time.  That he now has an afterthought is not a basis for concluding that the learned Magistrate erred in admitting the DVDs.
  7. [35]
    In the circumstances the late disclosure of the DVD recording of the interview, whilst regrettable, could not have made a difference to the verdict and did not result in a miscarriage of justice.

Ground 3 – The Magistrate erred in deciding that the email messages to gym managers constituted unlawful stalking.

Ground 5 – The Magistrate erred in finding the alleged Facebook correspondence constituted unlawful stalking.

  1. [36]
    The appellant submits that the learned Magistrate could not have made a determination about the Facebook correspondence, because he volunteered, during the trial that he knew nothing about Facebook.  Aspects of Facebook were, however, discussed and there was a sufficient evidentiary foundation for His Honour to have made the findings he did on the evidence before him.[65]
  2. [37]
    The appellant contends that:
    1. (i)
      As the complainant did not see the emails, they cannot constitute unlawful stalking, and
    2. (ii)
      The appellant could not verify that the emails in the police brief were the ones sent by him. 
  3. [38]
    Insofar as the second argument is concerned, the appellant does not deny sending emails, but asserts that it cannot be shown that the ones tendered were the ones he sent.  The emails and Facebook post contain subject matter of which the appellant necessarily had personal knowledge.  The emails were sent from the appellant’s email address.  The appellant’s Facebook profile includes his photo.  There is no evidence which would suggest any alteration of the emails or any intervention of a third person.  These matters, together the evidence of those who received communications and the factual matrix in which the communications occurred, resulted in it being open to the learned Magistrate to infer that they were sent by the appellant.  I draw the same inference.
  4. [39]
    The appellant’s primary argument on this ground is the first.[66]  He relies on a pre-trial ruling of McGill DCJ in R v Davies.[67]  That case concerned a step-parent who spied on children in a bathroom via a concealed camera.  The conduct was designed not to come to the attention of the children and did not do so until they were informed by police after the camera had been detected and removed by another family member.
  5. [40]
    Having surveyed the relevant provisions and extrinsic material, His Honour concluded that the legislative intent was that, to be unlawful stalking, the conduct was to be known to the stalked person.  In that context, he said:

“it is not stalking unless the person concerned, the stalked person, is aware of what is going on and is reacting to that awareness … 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.”

  1. [41]
    His Honour’s observations, in that regard, need to be read with his earlier acknowledgment that there “might be some lapse of time between the particular act identified in paragraph C and the time the stalked person became aware of it”.
  2. [42]
    Assuming that approach to be correct, it does not follow from His Honour’s observations that the communication between the appellant and the complainant’s employers cannot be particulars of acts of stalking unless the complainant actually read the communications, so long as she was aware of them around the time in question.
  3. [43]
    The evidence does not go into great detail about what the complainant knew of the communications.  It would appear that the prosecutor was concerned that what she was told in that regard was hearsay (a matter also pointed out by the appellant in his submissions) and so cut her off to some extent.  That concern was misplaced because the evidence, although hearsay, would have been admissible, not to prove the truth of what she was told (something which was established by proving the communications otherwise), but to prove the fact that she was told of the appellant’s conduct (and of her reaction).
  4. [44]
    Nevertheless, there is sufficient evidence to establish that the complainant was far from ‘entirely unaware’ of what was going on.  Indeed, it would be remarkable if she was not aware.  The communications, whilst with her employers, were clearly designed to disparage the complainant in their eyes, create a fear of continuing to employ her and thereby create an issue between her and her employers leading, it was obviously hoped, to her dismissal.  It was, in short, an attack on her employment.  It was, at the very least, foreseeable and indeed likely, that the subject matter of the communications would be taken up with the complainant.
  5. [45]
    The complainant’s evidence was that after the incidents at the shopping centre “everything died down for quite a while” until she was contacted by the manager of the gym at the Southport Sharks about the contact they were getting from the appellant.[68]  She had a meeting with the manager who wanted to know what was going on.  The evidence of the general manager from the Southport Sharks was that, having received the communications “We then met with Jade and explained to her what kind of information we were receiving and offered her any kind of support that she may need from us, in terms of security, getting to and from her car whilst attending the site or anything else that we could assist her with.”[69]
  6. [46]
    The evidence of the manager of World Gym was that, as a consequence of the communications, he advised the complainant to go to the police.[70] The complainant’s evidence was that she spoke with the manager of World Gym and was told of her employer receiving emails from the appellant about the complainant.[71]  She was also shown, by her boyfriend, a Facebook message to members of World Gym alleging that she had made false allegations against the appellant and warning that she could do the same to members of her then employer.[72]
  7. [47]
    It was these communications, of which she had been made aware, which prompted her complaint to the police.  Her evidence was that:[73]

Once the emails started, I was concerned about how many people had received the messages that were on Facebook and emails asking for me to be fired and, you know, I’m just trying to start out a career in the industry and being shut down, people are going to think I’m not worth it, you know ---

Okay? --- - - - and something that I thought had gone away, had just come back in full swing completely against me - - -

Okay? --- - - - and that the new aggression against me made me worry what else could be done.

  1. [48]
    The communications, although to others, were directed at the complainant.  They were part and parcel of a course of conduct directed at the complainant, of which she was likely to and did become aware.  The medium of transmitting such communications is not to be conflated with the person or entity to whom they were directed.  The expression ‘sent to’ (or the like) is in marked contrast to ‘directed at’.  The expression ‘directed at’ is distinctly different, reflecting a distinct legislative choice and purpose.  It permits of likely effective, albeit indirect, means.[74]  The complainant was obviously aware of the fact that communications were made and their gist.  Her reaction to it was part and parcel of her reaction to the appellant’s overall course of conduct.  The appellant’s argument that the communications could not form part of the particulars of stalking in the absence of evidence that the complainant read them fails.

Ground 4 – The Magistrate erred in finding the incidents at the shopping centre constituted stalking.

  1. [49]
    The appellant contends that:
    1. (i)
      The incidents, as alleged by the prosecution, had not been proved beyond a reasonable doubt, and
    1. (ii)
      The complainant suffered no ill effects from the first contact, being the only one the appellant admitted occurring (and, on his version, involved the complainant approaching him).
  2. [50]
    The appellant denied any of the incidents other than the one in the Cotton On shop.  The evidence has been traversed.  It was open to the learned Magistrate to accept the evidence of the witnesses called by the prosecution and to reject the appellant’s version of events.  I have already indicated that I would not disturb the findings with respect to the credibility and reliability of the witnesses.
  3. [51]
    Insofar as the first incident (in the Cotton On shop) is concerned, the appellant says that he was approached by the complainant. It might be thought that the incident was co-incidental.  Indeed the complainant herself thought that was a possibility at the time.  However, the conduct of the appellant in then speaking to the complainant about the issue at the gym, seen in the context of his prior and subsequent conduct (including his subsequent walking past the shop and looking in) provides a sufficient basis for an inference that the incident involves an act which was part of conduct intentionally directed at the complainant.
  4. [52]
    As to whether the first encounter at the shopping centre had any material effect upon the complainant, I have already observed that s 359B(d) is to be applied by reference to the conduct constituting the stalking, rather than by reference to each particular act which forms part of that conduct.

Ground 6 – The Magistrate erred in not allowing the appellant to tender internet media articles as evidence.

  1. [53]
    It is apparent, from a perusal of the transcript, that the learned Magistrate tried valiantly to ensure that the appellant focussed on matters of relevance to the charge at hand, and established facts in a proper way.  The appellant claims that His Honour erred however, in not permitting him to tender certain internet articles when the prosecution had been allowed to tender one. 
  2. [54]
    In his new outline of argument, the appellant complained that an article, a copy which was appended to his submissions at pages C17-18, was not admitted.  That assertion, however, is incorrect.  It was admitted into evidence as exhibit 19 during the appellant’s examination-in-chief.  That would appear to contradict any notion that the learned Magistrate took a blanket and one-sided approach to refusing to admit any such articles tendered by the appellant.
  3. [55]
    The article in question was one which reported that, following the appellant’s protest at Bond University, the police charged the appellant with stalking, but dropped the charge and proceeded to obtain a restraining order.  Even if the fact of a previous charge having been dropped were relevant, the fact that a media article says so is not proof of that fact.  It is not evidence of the truth of its contents.  The article was, however, admitted. 
  4. [56]
    The internet article tendered by the prosecution and admitted into evidence was Exhibit 17.  It was tendered not to prove the truth of its contents but simply for identification of the photo of the appellant wearing his ‘devil horns’.  In later explaining to the appellant his reluctance to admit internet articles (of which the appellant complains), the learned Magistrate had said that he would be happy to be shown a photograph (by inference, for identification purposes).
  5. [57]
    The appellant also claims that he would have wanted to tender another internet article about Ottaway.  That is dealt with later in the discussion of ground 12. 
  6. [58]
    There was no lack of even-handedness and no improper refusal to admit a relevant document in this respect. 

Ground 7 – The Magistrate erred in his decision in not allowing the appellant to tender a Supreme Court decision is evidence in the trial.

  1. [59]
    The appellant unsuccessfully sought to tender a copy of the decision of McMurdo J in Fitness First Australia Pty Ltd v McNicol (2012) QSC 296.  The dispute between Fitness First and the appellant in relation to the termination of his gym membership was settled by agreement. The decision of McMurdo J records that, pursuant to the terms of that agreement, the appellant received a small sum of money and some gym equipment but undertook not to say or write anything to anyone about Fitness First, the Robina gym premises or any other premises within the Fitness First network and not to contact any staff member, instructor, mentor or another person connected with those places. 
  2. [60]
    In the proceeding which came before McMurdo J, Fitness First alleged that the appellant had breached (and was threatening to breach) that agreement.  It sought a permanent injunction.  Fitness First was successful in obtaining a permanent injunction, but in terms which were narrower than sought.  The orders made were as follow:
  1. The respondent is permanently restrained from:
  1. attending any premises conducted as a Fitness First Health Club or similar establishment, except with the written consent of the applicant;
  2. making any publication which disparages the applicant in respect of any conduct of the applicant which was the subject of the dispute between the parties which was settled by the deed executed by them and dated 29 March 2012 or in respect of the performance or otherwise of the terms of that settlement;
  3. writing, emailing, calling, texting or sending any other communication to any staff member or customer of a Fitness First Health Club, as to the dispute which was settled by that deed or as to that settlement, except to communicate the contents or effect of the letter signed by the parties on 29 March 2012.
  1. [61]
    The letter dated 29 March 2012 was a document addressed to “members and staff Fitness First Australia” which was signed by the parties.  The document, which was described as a letter of acknowledgement, is to be viewed against the history of the dispute in which both Fitness First and the appellant had made what McMurdo J described as “highly disparaging remarks about the other, specifically directed to an audience comprising the staff and members at the Robina premises.” Insofar as the remarks published by Fitness First, McMurdo J described them as defamatory, but also said “It is unnecessary to determine the correctness of any of these assertions and it would not be possible to do so fairly upon the evidence here.”
  2. [62]
    The terms of the letter of acknowledgment were as follows:

To Members and Staff

Fitness First Robina

As you may be aware, a dispute had arisen between Fitness First Robina and Mr Dean McNicol.

After meetings and discussion between the parties, it is acknowledged by both Fitness First Robina and Mr McNicol that there were misconceptions, miscommunication and misunderstandings by various persons which lead to the dispute.

Fortunately, the parties have now met and resolved the dispute and their differences.

The matter is now at an end – fully and finally resolved – and both parties have agreed that the matter should now be put behind them so that both parties can move on.

Mr McNicol will no longer be attending Fitness First Robina.

There will be no further comment on the matter and all matters relating to the dispute are confidential.”

  1. [63]
    The appellant was unhappy that Fitness First did not distribute the letter of acknowledgement to staff and members of the club, but McMurdo J concluded that there was no obligation for it to do so.  He did, however, fashion the injunction so as not to restrain the appellant from doing so.
  2. [64]
    The breaches of the agreement alleged by Fitness First included breaches said to have been constituted by the appellant’s approach to the complainant at the shopping centre and his conduct in emailing messages which disparaged Fitness First and disputed the validity of the termination of his membership.  His Honour accepted that breaches were proved and was satisfied that the conduct would continue unless restrained by injunction.
  3. [65]
    The proceeding about the injunctive relief may be interesting, but it is difficult to see that it has any relevance to the charge in this matter or that the learned magistrate was wrong in not accepting the tender of the reasons for judgment.
  4. [66]
    The appellant contends that the reasons for judgment were important for a number of reasons namely:
  1. The reasons state that there was a dispute between he and Fitness First.
  2. The reasons discuss the evidence of Rebel Whale who also gave evidence against the appellant at trial.  The appellant says that His Honour’s reasons and findings cast doubt on her credibility.
  3. The contact between the complainant and the appellant at the shopping centre is described in a way which differs from the evidence of the prosecution witnesses in this matter.
  4. The fact that Fitness First did not get orders in the terms it sought provided the motive to have the appellant charged and obtain restraining orders under s 359F which go beyond what McMurdo J was prepared to order.
  5. The reasons support the appellant’s case that the protest outside the gym was directed at Fitness First.
  1. [67]
    The appellant also seemed to gain some comfort from the letter of acknowledgment, which was also not admitted into evidence.  The fact that Fitness First was prepared to acknowledge particular facts as part of the settlement of a civil dispute does not prove that those facts were true, or even provide admissible evidence of that.
  2. [68]
    The fact that there was a dispute between the complainant and Fitness First was relevant, particularly in the context of explaining the appellant’s protest outside the gym, but the facts in that regard were proved by evidence called in the trial at first instance.  At first instance the appellant cross-examined witnesses and gave evidence himself about that.  The facts are neither proved nor disproved, for the purpose of this case, by reference to what McMurdo J said about the facts as those appeared from the evidence before him in different proceedings, between parties to a civil dispute.
  3. [69]
    Similarly, what transpired between the appellant and the complainant at the shopping centre was the subject of direct evidence at the trial.  The way in which that was described by McMurdo J in reasons for judgment in a civil matter, on a different evidentiary basis, is not admissible evidence in the criminal proceeding as to what happened.
  4. [70]
    The appellant was, of course, free to cross-examine Rebel Whale as to previous inconsistent statements and evidence, which he did.[75]  The part of the reasons of McMurdo J which excited the appellant’s interest in relation to the credit of Rebel Whale was the following:

[29] … Because the applicant was not bound to publish the letter of acknowledgment, there was no breach by its non-publication. But I should record what did or did not happen. The evidence indicates that there was effectively no publication of the letter. Mr Reid, in his affidavit, said that he advised the applicant through its Robina manager, Ms Rebel Whale, and the applicant’s employed lawyer, that they should “notify and direct all staff and personnel of the Applicant” that the dispute had been resolved, the respondent would not be a member at Robina, the matter was at an end and that “there should be no discussion or ongoing reference to the events that had arisen in relation to the dispute”. Advice in those terms would have indicated nothing about the particular use to be made of the letter. Ms Whale gave evidence that she “notified and directed all staff” consistently with Mr Reid’s advice. In her affidavit evidence she said nothing about the letter. But when crossexamined, she said that she had sent an email “to every HOD department” which attached the letter of acknowledgment with instructions to “give it to their staff members”. She was unable to say whether it had been distributed to the staff. At another point she said that her email had attached the deed rather than the letter of acknowledgment. No such email is in evidence.

[30] I find that the letter of acknowledgment was not distributed to staff and members of the Robina club. There is no evidence that it was distributed to members. There is some evidence that Ms Whale sent it to some staff with instructions to further distribute it. But because she was uncertain as to whether she had attached the letter or the deed to what she said was her email in this respect, it is not established that the letter was distributed to any staff.

  1. [71]
    The appellant viewed this as the witness having been ‘caught out’ by McMurdo J, albeit not in relation to a matter upon which she had given evidence-in-chief in the criminal trial.
  2. [72]
    In the course of the cross-examination, the appellant showed Ms Whale her affidavit in the Supreme Court proceeding then asked her about the evidence she gave in cross-examination in that case.  She could not remember[76]the evidence she had given about the matter enquired about.  The appellant then handed her a copy of the reasons of McMurdo J and asked if she was familiar with it, to which she answered in the negative and asked whether the appellant wanted her to read it.  At that stage the learned Magistrate asked about its relevance. The appellant went on to explain what he was trying to prove about Ms Whale’s evidence in that case.  The prosecutor then objected.  The learned Magistrate observed that it was not fair to ask the witness to comment on the findings of McMurdo J, and directed the appellant to move on.
  3. [73]
    Assuming the line of questioning to be in pursuit of a proper cross-examination, there is nothing objectionable about showing the witness a document, such as the reasons for judgment, to see whether it refreshes her recollection about the subject matter of the questioning (in this case her evidence on another occasion) even if the document would itself be inadmissible evidence of that earlier testimony.  The court may, however, disallow a question in cross-examination as to credit if the court considers that an admission of its truth would not materially impair confidence in the reliability of the witness’ evidence.[77]   The extracted parts of the reasons of McMurdo J do not, if accepted, impugn or impinge upon Ms Whale’s general credibility.  They simply show what was described as a level of uncertainty (as to what was attached to her instruction) which emerged during the course of her evidence in that case.  Even if McMurdo J’s reasons could be construed as being critical of Ms Whale’s evidence (and they do not), it is impermissible to ask a witness questions concerning critical comments made about a witness’ evidence in an earlier trial.[78] 
  4. [74]
    Further, the ground of appeal is that the appellant was not permitted to tender the reasons.  The appellant had tried, unsuccessfully, to tender it during his testimony, saying, amongst other things, that it “gives an independent person’s view based on the evidence to a Supreme Court judge as to what the issue was actually about and the details of it”, but the learned Magistrate pointed out that he was not in a position to know what evidence was adduced in those proceedings.[79]  The content of evidence given in previous proceedings is not properly proved by a tender of reasons for judgment which summarises the effect of that evidence.
  5. [75]
    Insofar as the result of the civil case gave a motive for Fitness First somehow to arrange for the appellant to be charged and restraining orders to be obtained, the appellant was at liberty to suggest to witnesses that they were part of a conspiracy to that effect.  The reasons for judgment are not evidence of such conspiracy.
  6. [76]
    The reasons for judgment of McMurdo J were rightly not admitted into evidence.  Those would have made no difference in any event. 

Ground 8 – The Magistrate erred in his decision that the complainant suffered fear, apprehension, and emotional distress.

  1. [77]
    Reading sections 359A and 359B together, the learned Magistrate had to be satisfied that the relevant conduct of the appellant was conduct that either:
  1. would cause the stalked person apprehension or fear, reasonably arising in all the circumstance, being
  1. the alleged stalker’s circumstances;
  2. the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;
  3. the circumstances surrounding the unlawful stalking;
  4. any other relevant circumstances.

of violence to, or against property of, the stalked person or another person,

or

  1. caused detriment, which term includes:
  1. apprehension or fear of violence to, or against property of, the stalked person or another person;
  2. serious mental, psychological or emotional harm;
  3. prevention or hindrance from doing an act a person is lawfully entitled to do;
  4. compulsion to do an act a person is lawfully entitled to abstain from doing.

reasonably arising in all circumstances, to the stalked person or another person.

  1. [78]
    The first of these alternatives involves an objective test in all the circumstances, as s 359C(5) makes clear.  It is not concerned with whether the stalked person did suffer what is there described, but, rather, with whether the conduct would cause relevant apprehension or fear, reasonably arising in the circumstances.  Relevant conduct which satisfies that test is unlawful stalking notwithstanding that the stalked person may, by reason of particular stoicism, not in fact have suffered in the way described.
  2. [79]
    The second alternative has both subjective and objective elements.  It requires detriment to actually have been suffered and also requires that the detriment reasonably arose in all the circumstances.
  3. [80]
    The learned Magistrate’s findings were as follows:

I find the complainant, Jade Rowe, was stalked by the accused over a period of the charge.  I accept the specific dates of alleged misconduct by the accused are somewhat vague, but I find the acts as alleged are proved within the timeframe as alleged in the charge.  I find each act of stalking is proved beyond reasonable doubt.  I find the accused by his conduct did cause fear, apprehension and emotional distress to the complainant, Miss Rowe.  I find it’s reasonable that a person in the position of Miss Rowe would suffer fear, apprehension and emotional distress as a result of Mr McNicol’s continued action and conduct.

I find the accused, by his electronic communication with Miss Rowe’s gym employers, did cause a detriment to Miss Rowe.  The contents and volume of the messages combined with the threats of court proceedings caused her employers to be concerned as to the employability of Miss Rowe and whether Miss Rose should continue in that employment of those relevant organisations.  I find the accused did cause detriment to the complainant Miss Rowe and the detriment was reasonably arising in all the circumstances from the conduct of the accused.

I find that the accused did unreasonably focus his attention upon Miss Rowe during the period of the charge by his unwanted and unwelcomed attention.  His personal approaches, combined with email and Facebook messages, the complainant feared the accused and did have some genuine apprehension each and every time he made contact with her or with her employers.  I find the prosecution have proved all the elements of the offence beyond reasonable doubt.  I find the prosecution have negatived all defences and all lawful excuses raised on behalf of the accused.

  1. [81]
    It is evident from these paragraphs that His Honour found that s 359B(d)(ii) was engaged.  The appellant takes issue with that finding on the basis that:
    1. (i)
      there was no, or no sufficient, evidence to establish that the victim suffered fear apprehension and emotional distress, and
    2. (ii)
      the fear, apprehension or emotional distress must be of a level which would affect a reasonable adult.  Such a person would be less likely to suffer such impacts than a 17-18 year old girl.
  2. [82]
    The appellant also submitted that the Magistrate should have taken into account that (on the appellant’s case) the victim did not suffer any fear, apprehension, and emotional distress when making his decision as to whether the acts he found (as constituting the conduct of unlawful stalking) actually took place.
  3. [83]
    The assertion that the complainant did not suffer fear, apprehension and emotional distress was based on the fact that she sought no treatment and so there was no expert statement, medical report or psychologist’s report to verify the impact upon the complainant.  An absence of expert evidence does not however, preclude a finding that s 359B(d)(ii) is engaged.  There was evidence of the effect which the appellant’s conduct had on the complainant.  That evidence came from the complainant, her mother and her boyfriend.  The learned Magistrate was entitled to accept that evidence. 
  4. [84]
    The objective element of s 359B(d)(ii) of “reasonably arising in all the circumstances” includes the circumstances of the stalked person.  In this case that was a 17-18 year old girl.  It is not necessary to show that an adult would have similarly suffered.[80]
  5. [85]
    There are some matters, not raised in argument on appeal, which should be noted.  It appears that His Honour regarded causing the complainant’s employer to be concerned about her employability was a relevant ‘detriment’ even though she did not in fact lose her job. I am conscious that the definition of ‘detriment’ is inclusive, but doubt that it extends so far.  It is enough however, to support the conviction, that there was detriment otherwise.
  6. [86]
    The learned Magistrate found that the complainant suffered fear and apprehension, but did not expressly find that it was apprehension or fear of violence (relevantly) to the complainant.  His Honour did, however, accept the evidence of the complainant, which he had summarised as including evidence of her “general fear of personal violence by the accused”.  The complainant’s evidence included that the conduct of the appellant caused her to get to the point where (underlining added):[81]

I don’t know, I always think worst case scenario in my head.  You know, if he’s – if he’s completely turned against me now and wants – wants people to fire me and wants everyone to hate me, is the vibe I got, if I see him, what’s he going to do?  Is he going to go off at me, is he going to scream at me, is he going to try and do something to me, I – I didn’t know, but I was just fearing the worst.

  1. [87]
    It can readily be inferred from that evidence that the apprehension or fear included an apprehension or fear of violence to the complainant.  I would draw that inference from the evidence accepted by the learned Magistrate. 
  2. [88]
    Further, when asked in cross examination whether she feared that the appellant would commit any violent act upon her at all, the complainant responded:[82]

--- At some stages, yes.

And what was this fear based on? --- That you changed your tone from trying to be protective of me to asking for me to be fired and sending out messages to people completely shutting me down.  It was a complete turn around from my perspective. 

…

And let’s see.  And were you worried that I would damage any property of yours? --- Not particularly.

Not particularly.  Okay.  So this fear of physical violence upon yourself, was that solely because of correspondence or was that a build up of previous – previous issues? --- I don’t understand what – what you mean.

Well, if, tomorrow – well, I can’t really say hypothetically.  Yes.  You say you felt, maybe, a fear of violence – that I may be violent towards you.  Was that based solely on correspondence that you saw, or was it because of the history of the event as well?  Was the history of the event a contributing factor? --- The whole build up of the events is what as led to this.

  1. [89]
    The evidence also justifies a conclusion that the apprehension or fear reasonably arose in the circumstances.  Whilst no express threat of physical violence had been made (and none was perpetrated), the appellant’s course of conduct over an extended period made it reasonable for the complainant to have harboured a sense of apprehension or fear of that.
  2. [90]
    Further, even if the complainant had not suffered apprehension or fear of that kind, the evidence accepted by the learned Magistrate justified a conclusion (which I would form) that s 395B(d)(i) was engaged.
  3. [91]
    The learned Magistrate referred to “emotional distress” as well as to apprehension or fear.  The definition of detriment relevantly includes “serious mental, psychological or emotional harm”.  Clearly a mere hurt to feelings is not an effect which engages the provision.  There must be serious (i.e. important, rather than trifling, slight or negligible) harm.  His Honour did not expressly find “serious” harm of that kind.  Although there was no expert evidence, the evidence which he did accept, however, provided a sufficient basis to conclude that the complainant suffered serious harm of that kind and I would so find on the basis of the evidence accepted at trial.  That is not necessary, however, to sustain the conviction, given that s 395B(d) is otherwise engaged.

Ground 12 – The Magistrate erred in stopping a line of questioning of Marie Griffiths.

  1. [92]
    The appellant claimed that the learned Magistrate wrongly stopped a line of questioning by the appellant into an inappropriate relationship between Griffiths and the arresting officer (Ottaway).  The appellant complains that, had he not been shut down, he was planning to tender an internet article about the arresting officer’s (Ottaway’s) demotion and appeal to QCAT for allegedly interfering in an investigation into his relationship with a female officer. 
  2. [93]
    The learned Magistrate saw the disciplinary proceedings as irrelevant and, in his decision, referred to the appellant, in this respect, as “relying upon a mass media report of the unrelated issue”.  Be that as it may, the internet article would not, of course, have been admissible to prove the truth of its contents, even if the subject matter of the article had been relevant. 
  3. [94]
    Senior Constable Griffith had a relatively minor part to play in the prosecution case.  She was the officer to whom one of the complainant’s employers (Davie) made a complaint.  She interviewed him, took possession of a bundle of copies of emails, read and discussed them, prepared a statement from him and briefed Officer Ottaway and an officer from the Australian Federal Police.  She was not the arresting officer.  She did not have carriage of the investigation.  She did not see the complainant.  She did not know the appellant, other than what she had read in the police system.[83]
  4. [95]
    At the beginning of her cross-examination she was asked the following questions and gave the following answers:

DEFENDANT: Some preliminary questions. You obviously know Arron Ottaway; that’s correct? ---Yes.

Have you socialised with him outside of his and your duties as a police officer? ---No.

  1. [96]
    The appellant then said:

And that is because he’s just come back from suspension after one and a half years?

  1. [97]
    That drew an objection.  The Magistrate said that the appellant had asked a valid question, but followed it up with a statement.  The appellant did not quibble with that at the time.  He responded “Yes.  I’ll move on.  Sorry, Your Honour”.  He did not seek to revisit the topic or to ask any questions of Griffith about the subject matter of the internet article.
  2. [98]
    Subsequently, when cross-examining Ottaway, the appellant suggested:

Constable Marie Griffiths, was she the officer that you were suspended…”

  1. [99]
    The suggestion was interrupted by an objection from the prosecutor, who handed up an authority in support of a submission that the witness should not be compelled to answer the question, because the truth of the matter suggested would not affect the credibility of the witness in relation to the maters upon which he had testified.  In the course of argument, the learned Magistrate suggested to the appellant that, if he needed to ask about the relationship between the two, he could rephrase the question to overcome the objection that had been triggered by reference to the suspension.  He also allowed the appellant time to read the authority relied upon by the prosecutor.  The appellant however, declined the opportunity to read the material, withdrew the question and moved on.  That was his decision.
  2. [100]
    This ground also fails.

Ground 13 – The Magistrate erred in his decision in there was no evidence to find the appellant guilty beyond reasonable doubt.

  1. [101]
    In support of this ground, the appellant referred to other grounds that have already been addressed.  He also advanced submissions, as he did before the learned Magistrate, as to why the evidence of the witnesses called by the prosecution ought not to have been accepted.  These included submissions as to the relationships among the witnesses, the delay between some of the acts complained of and when statements were made to police, criticism of the investigation and submissions about what the appellant saw as the lack of impartiality, independence or credibility of witnesses called by the prosecution. 
  2. [102]
    As I have already observed, the evidence called by the prosecution was evidence which the learned Magistrate was entitled to accept and having regard to the advantages of the Magistrate in hearing the evidence and observing the witnesses, and having read the transcript, I can find no sufficient reason to overturn His Honour’s conclusions in relation to the credibility and reliability of the witnesses.
  3. [103]
    This ground fails.

S 359D

  1. [104]
    On the hearing of the appeal, the appellant was critical of the relatively cursory way in which the learned Magistrate dealt with the arguments based on s 359D.
  2. [105]
    In the course of dealing with ground 1, I have dealt with the argument in relation to (c).  I do not consider that any of the acts fall under that provision.  Sub-paragraph (a) was referred to in the context of the Supreme Court decision.  That misplaced argument is dealt with later in discussing the restraining order.
  3. [106]
    Some reference was made to (e) both in relation to information the appellant sought to give to the complainant and to other gyms.  The recipients were not parties to the litigation between the appellant and Fitness First.  In any event, and even if it could be said that there was a legitimate interest in giving some information (that being assumed for the purposes of argument rather than accepted), the appellant’s conduct was unreasonable in the circumstances. 

Conclusion on appeal against conviction

  1. [107]
    Whilst I have concluded that the learned Magistrate erred in including the protest outside the Fitness First gym in the acts particularised as forming part of the conduct of the appellant which amounted to unlawful stalking, there were sufficient acts otherwise, constituting conduct by the appellant, to support the conviction.[84]  There is no other basis to overturn the conviction.
  2. [108]
    The appeal against conviction is dismissed.

(ii) Appeal against sentence

Ground 10 – The Magistrate erred in his decision in not specifying if the concept of time served was dealt with in his decision.

  1. [109]
    The appellant’s new outline of argument explains the ground as follows:

The Magistrate seemed to be confused when he stated that prior custody of the defendant had been taken into consideration when sentencing the defendant but the Magistrate did not make clear if the concept of “Time served” applied.  Hypothetically if the defendant were to sue for the time they were remanded could they claim for this time

  1. [110]
    The Magistrate imposed an entirely suspended term of imprisonment.
  2. [111]
    Section 159A of the Penalties and Sentences Act 1992 states:
  1. If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.
  2. Subsection (1) does not apply to—
  1. a period of custody of less than 1 day; or
  2. imprisonment of less than 1 day; or
  3. imprisonment that has been wholly suspended; or
  4. the suspended part of imprisonment partly suspended.
  1. If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order—
  1. state the dates between which the offender was held in presentence custody; and
  2. calculate the time that the offender was held in presentence custody; and
  3. declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.
  1. [112]
    Because the learned Magistrate wholly suspended the term of imprisonment section 159A does not apply.[85]  The learned Magistrate recognised the appellant had been in custody and took it into account in reducing the sentence imposed.
  2. [113]
    There is no demonstrated error in the learned Magistrate’s approach in this regard.
  3. [114]
    The sentence below proceeded on the basis of all of the acts which the learned Magistrate found to be part of the conduct which constituted the unlawful stalking.  The sentence given was within the bounds of an appropriate exercise of discretion (albeit somewhat lenient) on that basis.  I have found that the list of acts so relied upon for conviction was too extensive, with the consequence that, in arriving at that sentence the learned Magistrate proceeded on a partially erroneous basis.  This would justify a re-exercise of the sentencing discretion, however, I would not be minded to impose any lesser sentence even on the basis of the more restricted acts constituting the proven stalking (consistently with these reasons),[86] having regard to all the circumstances including the seriousness of the conduct otherwise and its effect on the complainant.
  4. [115]
    The appeal against sentence is dismissed.

(iii) Appeal against the restraining order

Ground 11 – The Magistrate erred in conducting the process of granting a restraining order before he handed down his decision.

  1. [116]
    Section 359F provides, in part, as follow:
  1. This section applies on the hearing before a court of a charge against a person of unlawful stalking.
  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.
  3. The judge or magistrate may act under subsection (2) on application by the Crown or an interested person or on the judge’s or magistrate’s own initiative.

…

  1. The court hearing the restraining order proceeding may make a restraining order against the person in relation to any person or any property 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.
  2. A restraining order may be varied or revoked at any time by the court, and, if the order provides, by another court.

…

  1. A restraining order proceeding is not a criminal proceeding.
  2. A question of fact for a decision under subsection (2) and in a restraining order proceeding must be decided on the balance of probabilities.
  3. In this section—

charge means the charge of unlawful stalking mentioned in subsection (1).

restraining order against a person means any order considered appropriate for the purpose of prohibiting particular conduct, including, for example, contact for a stated period by the person with a stated person or the property of a stated person.

  1. [117]
    The appellant contends the reference to the word ‘ends’ in s 359F (2) suggests that the application should not have been heard until after conviction.   There was some confusion on the appeal as to the course of events at first instance on 10 February 2014. The audio of relevant parts of that day’s proceedings was played back in court.  That demonstrated that argument on the restraining order was indeed only heard after conviction.  In particular, whilst the transcript shows the court as being adjourned from 9:11am to 10:36am, the recording reveals that His Honour resumed at 9:36am, gave his decision convicting the appellant and then heard submissions on penalty and the restraining order.[87] The ground fails.

Ground 9 – The Magistrate erred in his decision in setting conditions on the restraining order.

  1. [118]
    The terms of the restraining order were as follows:
  1. You are not to follow, loiter near, watch or approach within 100 metres of Jade Dee Rowe or do any similar act against Jade Dee Rowe.
  2. You are not to contact, try to contact, or ask someone else to contact Jade Dee Rowe directly or indirectly by telephone or any other means of communication or electronic communication device or do any similar act against Jade Dee Rowe.
  3. You are not to produce any material referring directly or indirectly to Jade Dee Rowe on any communication or electronic communication device or do any similar act against Jade Dee Rowe.
  4. You are not to leave offensive material where it will be found by, given to or brought to the attention of Jade Dee Rowe, or do any similar act against Jade Dee Rowe.
  5. You are not to give an offensive material to Jade Dee Rowe directly or indirectly, or do any similar act against Jade Dee Rowe.
  6. You are not to do any act or threaten to do any act of intimidation, harassment or violence, or do any similar act against Jade Dee Rowe, and
  7. You are not to commit any act of violence or threaten violence against or against property of Jade Dee Rowe, or do any similar act against Jade Dee Rowe.

This order takes effect immediately and continues in force for a period of two years from today.

  1. [119]
    The appellant’s concerns were that:
  • Condition 3 would restrain the appellant from disseminating information about the dispute between the appellant and Fitness First in a way which the orders of McMurdo J permitted him to do.
  • Conditions 4 and 5 are too broadly expressed.  It leaves uncertain what would be regarded as offensive, potentially restrains conduct not constrained by the orders of McMurdo J, goes beyond conduct which would constitute stalking and potentially infringes what the appellant considers is to be his right of free speech or protest.
  1. [120]
    The scope of orders which can be made pursuant to s 359F is not constrained by the extent to which McMurdo J chose to make restraining orders on the appellant in the Supreme Court proceedings between him and Fitness First.  The stated exceptions in the injunction made by McMurdo J cut down the scope of what the appellant is constrained from doing by that order, but do not create a right which either engages s 359D (as was suggested) or restricts the power of the court in relation to the terms of an order under s 359F.  There is no reason a restraining order under s 359F cannot be more stringent than the orders of McMurdo J.  A civil injunction in enforcement of a contractual right is distinct from a restraining order under s 359F of the Criminal Code.  Each is directed to different things and run in parallel.
  2. [121]
    Section 359F permits the court to make any order considered appropriate for the purpose of prohibiting particular conduct.  It does not have to be limited to acts which the person has committed in the past.  In this case, the terms of the order were modelled on s 359(c) and restrain acts which may constitute conduct which would be unlawful stalking. The learned Magistrate had a discretion and it has not been shown that the exercise of the discretion miscarried.
  3. [122]
    The appellant submitted that the order should have incorporated the other elements of stalking, so that he was not restrained from such acts where they were not intentionally directed at the complainant or fell within s 359D, or would not have the effect in s 359B(d).  There is nothing in s 359F which would require the court to incorporate such provision in a restraining order.  The learned Magistrate did not err.
  4. [123]
    The appellant expressed a concern that he might be thought to breach the order if he were to disseminate the letter of acknowledgement, since that might be thought to refer indirectly, to the complainant.  It is difficult to see how that could be so but in the event the order creates any significant difficulty, the appellant may always make application to vary or revoke the order.
  5. [124]
    The appeal against the restraining order is dismissed.

Footnotes

[1]Phelan 2 September 2013 T 1-46, 47; Whale 2 September 2013 T 1-79; Rowe 2 September 2013 T1-98.

[2]Rowe 2 September 2013 T 1-99.

[3]Campbell 2 September 2013 T 1-15; Phelan 2 September 2013 T 1-50,

[4]Campbell 2 September 2013 T 1-44.

[5]Phelan 2 September 2013 T 1-49, 63, 64.

[6]Rowe 2 September 2013 T 1-99,100.

[7]Campbell 2 September 2013 T1-16, 17; Milan 2 September 2013 T1-49.

[8]Rowe 2 September 2013 T 1-100.

[9]Rowe 2 September 2013 T 1-101.

[10]Rowe 3 September 2013 T2-66, 71.

[11]Rowe 2 September 2013 T1-102.

[12]Whale 2 September 2013 T1-80, 81.

[13]Rowe 2 September 2013 T1-100.

[14]Rowe 2 September 2013 T1-100.

[15]Whale 2 September 2013 T1-81.

[16]Rowe 2 September 2013 T1-102, 103, 104; Edwards 3 September 2013 T2-73, 74.

[17]Rowe 2 September 2013 T1-104.

[18]Rowe 2 September 2013 1-104.

[19]Rowe 3 September 2013 T2-71.

[20]D Rowe 3 September 2013 T2-87.

[21]Rowe 2 September 2013 T1-102, 103.

[22]Rowe 2 September 2013 T1-103, 3 September 2013 T2-65, 66.

[23]D Rowe 3 September 2013 T2-87.

[24]Rowe 2 September 2013 1-107, 108.

[25] Rowe 2 September 2013 T 1-105.

[26]Rowe 2 September 2013 T 1-105.

[27]Rowe 2 September 2013 T 1-107, 2-62.

[28]Rowe 2 September 2013 T 1-107, 2-63.

[29]Rowe 2 September 2013 T 1-107.

[30]Rowe 3 September 2013 T 2-63.

[31]Rowe 2 September 2013 T 1-107.

[32]Rowe 2 September 2013 T1-111; .

[33]Rowe 2 September 2013 T1-104; D Rowe 3 September 2013 T2-91, 2-106; Tippett 3 September 2013 2-129.

[34]Tippett 3 September 2013 T2-110.

[35]Rowe 2 September 2013 T 1-108.

[36]Tippett 3 September 2013 T 2-110.

[37]Rowe 2 September 2013 T 1-108.

[38]Rowe 2 September 2013 T 1-109; D Rowe 3 September 2013 T 2-89.

[39]Rowe 2 September 2013 T 1-110.

[40]3 September 2013 T 2-89, 90.

[41]Rowe 2 September 2013 T 1-110.  See also Tippett 3 September 2013 T 2-111.

[42]Rowe 2 September 2013 T 1-110.

[43]Tippett 3 September 2013 T 2-112, 113.

[44]Rowe 2 September 2013 T 1-111, 112.

[45]Murphy 12 November 2013 T 2-3.  See Ex 18.

[46]Murphy 12 November 2013 T 2-4.

[47]Rowe 2 September 2013 T 1-111; Murphy 12 November 2013 T 2-4.

[48]Davie 4 September 2013 T 3-3.

[49]See Ex 2.

[50]Davie 4 September 2013 T 3-4, 5.

[51]Rowe 2 September 2013 T 1-112.

[52]Davie 4 September 2013 T 3-5.

[53]Rowe 2 September 2013 T 1-112.

[54]Davie 4 September 2013 T 3-15.

[55]Tippett had earlier seen a Facebook message from the appellant – 3 September 2013 T 2-116-119.

[56]Tippett 3 September 2013 T 2-113-116.

[57]Rowe 2 September 2013 T 1-112, 113.

[58]D Rowe 3 September 2013 T 2-91.

[59]The reasons refer to emails, but it seems to be an abbreviated reference to the subject matter of para (D) of the prosecution’s particulars (extracted at page 6 of the decision) which refers to the documents found on the complainant’s car – which included the note referred to earlier, as well as the email.  See also page 10 ll 40-45 of the decision.

[60]10 February 2014 pg 6 line 35.

[61]Page 18 of decision.

[62]It may be noted that a failure to comply with the disclosure obligations does not affect the validity of proceedings – see s 590AC(2).

[63]4 September 2013 T 3-27-31, 44.

[64]4 September 2013 T 3-57.

[65]Tippett 3 September 2013 T 2-116.

[66]Para ante.

[67](unreported, 2 August 2004).

[68]Rowe 2 September 2013 T 1-111.

[69]Murphy 12 November 2013 T2-4.

[70]Davie 4 September 2013 T3-15.

[71]Rowe 2 September 2013 T1-112.

[72]Rowe 2 September 2013 T1-112.

[73]Rowe 2 September 2013 T1-112.

[74]See e.g. s 359B (c)(v).

[75]Whale 2 September 2013 T 1-82-88.

[76]Whale 2 September 2013 1-90.

[77]Evidence Act s 20.

[78]Cross on Evidence para [17510].

[79]12 November 2013 T 2-43, 44.

[80]Further, there is no reason to suspect that a different conclusion would have been drawn had the conduct been in relation to someone who had already turned 18.

[81]Rowe 2 September 2013 1-112, 113.

[82]Rowe 3 September 2013 T2-45.

[83]Griffiths 4 September 2013 T 3-18.

[84]The same conclusion would apply even if the incident in the Cotton On shop was also excluded from the acts constituting the conduct which was unlawful stalking.

[85]10 February 2015 decision 21.

[86]The same conclusion applies even if the incident in the Cotton On shop was also excluded from the acts constituting the conduct which was unlawful stalking.

[87]See 15 September 2014 T 1-122-125.

Close

Editorial Notes

  • Published Case Name:

    McNicol v Queensland Police Service

  • Shortened Case Name:

    McNicol v Queensland Police Service

  • MNC:

    [2015] QDC 39

  • Court:

    QDC

  • Judge(s):

    Rackemann DCJ

  • Date:

    27 Feb 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment(No citation)10 Feb 2014Mr McNicol was convicted of unlawfully stalking a young, female gym instructor. He was sentenced to a term of imprisonment of eight months, which was fully suspended for two years. Mr McNicol had served 131 days of pre‑sentence custody. A restraining order was made under s 359F of the Criminal Code.
Primary Judgment[2015] QDC 3927 Feb 2015Mr McNicol appealed under s 222 of the Justices Act 1886 (Qld) against conviction, sentence and the restraining order. Appeal dismissed: Rackemann DCJ.
Appeal Determined (QCA)[2016] QCA 10222 Apr 2016Application for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) refused: Morrison JA, Philippides JA, Mullins J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Fitness First Australia Pty Ltd v McNicol [2012] QSC 296
1 citation
Jump To
Cite 1 - [2012] QSC 296

Cases Citing

Case NameFull CitationFrequency
McNicol v Queensland Police Service [2016] QCA 1021 citation
1

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