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The appellant was convicted of two counts of unlawful stalking. She appealed against conviction. A noteworthy aspect of this case was that the Court of Appeal held that the trial judge did not adequately direct the jury on the conduct and result elements of the offence of unlawful stalking when regard was had to how the prosecution indicted and particularised its case. This was because the prosecution had particularised a number of individual acts and the trial judge failed to convey to the jury that, in order for them to convict, they must have been satisfied of so many of those individual acts that, taken together, they were satisfied that the appellant had engaged in a course of conduct which resulted in a detriment. The appeal was allowed, the convictions were set aside, and a retrial was ordered.
Morrison and McMurdo JJA and Boddice J
12 April 2022
The appellant was convicted of two counts of unlawful stalking: see s 359E(1) Criminal Code. .
As to the conduct and fault elements, each count alleged, in effect, a course of conduct intentionally directed towards two complainants: see s 359B(a)–(b) Criminal Code. . The course of conduct was said to have occurred over a period of 10 and a half years (the “stalking period”). , .
The prosecution relied on particulars which identified 96 individual acts relevant to the first count and 16 individual acts relevant to the second count, which were relevant to the course of conduct directed towards each of the complainants (the “particulars”). –, .
As to the result element of each count on the indictment, the prosecution alleged that the appellant had caused a detriment, reasonably arising in all the circumstances, to each of the complainants: see s 359B(d)(ii) Criminal Code. , –.
The Court, having had regard to both how the prosecution indicted and particularised its case, observed that it “assumed the burden of proving” a course of conduct during the stalking period. . Whilst it was not necessary to prove each individual act as particularised, it was incumbent on the prosecutor to prove such of the individual acts which were said to constitute the alleged course of conduct that resulted in the detriment relevant to each count. .
As to the conduct element of the offence the trial judge directed the jury that they had to be satisfied that the appellant committed “as a minimum, two of the particularised acts” and that they must unanimously agree on what those acts were. . A document given to the jury explained that the prosecution was required to prove that the conduct was “engaged in on more than one occasion”. . As to the result element the trial judge directed that the jury needed to be “satisfied that the course of conduct containing the acts you have found… must have caused detriment to the complainant” but there did not need to be a detriment from each individual act. .
The Court held that in the summing-up the trial judge did not adequately direct the jury that for the jury “to convict the appellant, the jury had to be satisfied as to such of the alleged acts that together they constituted a continuous course of conduct” which caused the result. As the Court explained “[a]s the jury was directed, they were able to convict the appellant, if, for example, they found one of the acts which was alleged to have occurred very early in the period and one of the acts which was alleged to have occurred very late in the period.” , .
There was a miscarriage of justice. . The appeal was allowed, the convictions were set aside, and a retrial was ordered. .