Appellant v Respondent

1 The appellant**,** Mr Piggott, is appealing a decision of a magistrate to convict him on one charge of stalking under s 21A of the Crimes Act 1958. This appeal is made pursuant to s 272 of the Criminal Procedure Act 2009.

2 The appellant first connected with the complainant, the victim of the stalking charge, through an online dating app in June 2021. Thereafter, the appellant and complainant met up on four or five occasions, and had sexual relations once. The complainant then informed the appellant that she did not want a relationship with him. The stalking charge related to an alleged course of conduct by the appellant towards the complainant from 11 July 2021 to 9 February 2022. This included: sending lengthy messages demanding the complainant speak to him in person; messaging the complainant on WhatsApp after she blocked him on her mobile phone; connecting with three of the complainant's Facebook friends; contacting the complainant through LinkedIn, and attempting to enrol at a foreign language school where the complainant worked.

3 The appellant contested the stalking charge. A hearing proceeded before Magistrate Bailin (the magistrate) in the Magistrates' Court of Victoria sitting in Melbourne on 21 and 22 June 2023. At the conclusion of the evidence, and after hearing closing addresses, the magistrate convicted the appellant.

4 The appellant is self-represented. In his notice of appeal, the appellant alleged eight errors of law by the magistrate.

5 The respondent, is the informant to the charge.[1] The respondent urged me to dismiss the appeal on the basis that the appellant was effectively seeking merits review of the magistrate's decision to convict him, and that there was no error by the magistrate, including in his interpretation of s 21A of the Crimes Act.

6 For the reasons that follow, the appeal must be dismissed.

7 An appeal under s 272 of the Criminal Procedure Act, is limited to questions of law.

• whether the tribunal has identified the relevant legal test;

• whether the tribunal applied the correct legal test;
• whether there is any evidence to support a finding by the tribunal of a particular fact; and
• whether the facts found fall within a statute properly construed.[2]

9 Section 21A of the Crimes Act is as follows:

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following -

(a) following the victim or any other person;

(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;

(ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material -

(i) relating to the victim or any other person; or

(ii) purporting to relate to, or to originate from, the victim or any other person;

(bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person;

(bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;

(c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;

(d) interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);

(da) making threats to the victim;

(db) using abusive or offensive words to or in the presence of the victim;

(dc) performing abusive or offensive acts in the presence of the victim;

(dd) directing abusive or offensive acts towards the victim;

(e) giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;

(f) keeping the victim or any other person under surveillance;

(g) acting in any other way that could reasonably be expected -

(i) to cause physical or mental harm to the victim, including self-harm; or

(ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person -

with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.

(3) For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim, including self-harm, or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if -

(a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or

(b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.

(4) This section does not apply to conduct engaged in by a person performing official duties for the purpose of -

(a) the enforcement of the criminal law; or

(b) the administration of any Act; or

(c) the enforcement of a law imposing a pecuniary penalty; or

(d) the execution of a warrant; or

(e) the protection of the public revenue -

that, but for this subsection, would constitute an offence against subsection (1).

(4A) In a proceeding for an offence against subsection (1) it is a defence to the charge for the accused to prove that the course of conduct was engaged in without malice -

(a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material); or

(b) for the purpose of an industrial dispute; or

(c) for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.

(5) ...

(6) It is immaterial that some or all of the course of conduct constituting an offence against subsection (1) occurred outside Victoria, so long as the victim was in Victoria at the time at which that conduct occurred.

(7) It is immaterial that the victim was outside Victoria at the time at which some or all of the course of conduct constituting an offence against subsection (1) occurred, so long as that conduct occurred in Victoria.

mental harm includes -

(a) psychological harm; and

(b) suicidal thoughts.

10 There have been several appeals to this Court, and the Court of Appeal, relevant to what must be proven in relation to a stalking charge.

11 In Berlyn v Brouskos,[3] Nettle J determined an appeal from the Magistrates' Court which involved, among other charges, a charge of stalking. In that case, the magistrate found that the accused had rung a neighbour's doorbell on two occasions, at 5:25am and 5:28am.[4] The neighbour said that just after 6am, she saw the accused standing naked outside her window, following which he rang the doorbell, and left a letter at her front door, which was sexually suggestive. The accused admitted that he had written the letter at approximately 2:30am, but said that he was intoxicated, and wrote it as a practical joke. An issue in the appeal was whether actions by the accused (as found by the magistrate) over the course of that one morning, could constitute a course of conduct within the meaning of s 21A(2).[5]

12 Justice Nettle held that for a course of conduct element to be satisfied, there must be a pattern of conduct evidencing a continuity of purpose.[6] His Honour explained:

It is readily conceivable that conduct on two separate occasions may not always constitute a pattern of conduct evidencing a continuity of purpose and it is unlikely that conduct on only one occasion could constitute a pattern of conduct evidencing a continuity of purpose, unless the conduct were protracted. In order to constitute a pattern of conduct there must be something more, and I think with respect that McDonald J was correct when his Honour said in Gunes, in effect, that the something more is that the conduct must be engaged in on more than one occasion, or it must be protracted.

That is not to suggest that proscribed conduct which is engaged in on more than one occasion or which is protracted will necessarily constitute a course of conduct evidencing a continuity of purpose. It may not, and I do not take McDonald J to have suggested otherwise. Something additional about the conduct or the surrounding circumstances will need to be shown before it can be said of the conduct that it amounts to a pattern of conduct evidencing a continuity of purpose. But I think that for all intents and purposes, it will not be open to say of conduct that it amounts to a course of conduct unless it is engaged in on more than one occasion or unless it is protracted; whatever else may need to be shown.[7]

13 Justice Nettle held that applying the proper construction of the term 'a course of conduct' to the facts as found by the magistrate, it was open for the magistrate to find that:

... the conduct amounted to a pattern of conduct which was either protracted or occurred on more than one occasion and evidenced a continuity of purpose, including entering or loitering outside the [neighbour's] place of residence (s. 21A(2)(c)); leaving offensive material where it would be found by the [neighbour] (s. 21A(2)(e)); and acting otherwise (by reason of the plaintiff's nakedness) in a way that could reasonably be expected to arouse apprehension or fear in the [neighbour] (s. 21A(2)(g)), in circumstances where the plaintiff ought to have understood that engaging in a course of conduct of that kind would arouse apprehension or fear (as in fact it did) (s. 21A(3)).[8]

14 Justice Nettle's characterisation of a 'course of conduct' as a pattern of conduct evidencing a continuity of purpose has been cited, with approval, by the Court of Appeal.[9]

15 In Thomas v Campbell & Ors,[10] Nettle J determined another appeal from the Magistrates' Court where the accused had been convicted of various offences, including assault and stalking. In that case, the victim was the father of someone whom the accused had previously dated. The conduct relevant to the stalking charge were two acts by the accused, performed nine months apart. The first act involved the accused allegedly driving on the wrong side of the road, towards the victim. The second act involved the accused allegedly pointing his hand at the victim and gesturing like he was firing a gun.[11] The accused was charged and convicted for both of these acts. The accused argued the charge of stalking was duplicitous, and also alleged that there was no course of conduct to satisfy the offence of stalking.

16 Justice Nettle rejected the accused's claim that there had been double jeopardy, as the elements of an assault and elements of stalking are different.[12] However, Nettle J accepted that the prosecution had failed to establish a course of conduct committed with a continuity of purpose in respect of those two acts.

17 In discussing the elements of stalking, Nettle J stated:

The offence of stalking consists of four elements: (1) there must be a course of conduct, (2) that course of conduct must involve a protracted act or several acts, (3) the accused must have performed the act or acts with the intention of causing physical or mental harm to the victim or of arousing apprehension of fear in the victim for his or her own safety or that of another person, and (4) the course of conduct must have aroused apprehension or fear in the victim for his or her own safety or that of another persons. A course of conduct requires a continuity of purpose.[13]

18 In R v Hoang,[14] the accused sought leave to appeal against his conviction of one count of stalking, arising from an allegation that he stalked a university staff member while he was a student. Before a jury, it was alleged that the accused phoned the victim at work and sent her letters, cards and gifts in an attempt to persuade the victim to have a relationship with him.

19 The accused's grounds of appeal included an allegation that the judge had erred in directions given to the jury on the elements of stalking, including the intention necessary to establish the offence.

20 In considering s 21A(3), Neave JA (with whom Maxwell P and Eames JA agreed) explained that:

The words "in all the particular circumstances ought to have understood" import an objective element into the specific intent required for the offence where the course of conduct did cause mental harm or arouse apprehension or fear in the victim. In these circumstances, the required state of mind is not the actual state of mind of the offender, but what "that offender" in those circumstances "ought to have understood."

The policy rationale for this provision is clear. It may be that many stalkers falsely believe that they have a relationship with the person they pursue, even though they may have never met or spoken to the victim. A provision which required proof of a subjective intention to cause harm to the victim would not apply to an alleged stalker who obsessively pursued the victim on the basis of a false belief that these attentions were welcome. The reference to "in all the particular circumstances" requires the jury to take account of the particular circumstances in which the course of conduct has occurred, in order to decide whether the accused "ought to have understood" the effects of the behaviour on the victim.

The question is not whether [the accused] subjectively understood that the course of conduct in which he engaged would be likely to cause harm to the complainant, or arouse her apprehension or fear, but whether in all the particular circumstances he ought to have understood the effect of his behaviour on the complainant.[15]

It was held that there had been no misdirection by the judge in respect of this.

21 In RR v The Queen,[16] the Court of Appeal considered an appeal against conviction on multiple charges, including stalking. An issue on appeal was whether the mental harm referred to in s 21A(3) was confined to a medically diagnosed mental condition. Ashley JA (with whom Redlich and Priest agreed on this point) noted that s 21A(8) had been inserted into the section in 2011,[17] subsequent to the stalking charges that were the subject of that appeal. However, Ashley JA observed that s 21A(8) does not require an intention that the victim suffer a medically diagnosed, or diagnosable condition.[18] Further, it was observed that it is the accused's intentions which are relevant, not what the effect of the course of conduct was.[19]

22 In Georgiou v The King,[20] the Court of Appeal explained that where the course of conduct element is satisfied, there are three alternative bases for liability for a stalking charge. This is when it is established the accused either:

(i) committed that course of conduct with the intention of causing mental harm to the victim or of arousing apprehension or fear in the victim for her own safety (Crimes Act 1958, s 21A(2)); or

(ii) knew that engaging in the course of conduct would be likely to cause such harm or arouse such apprehension or fear (s 21A(3)(a)); or

(iii) ought to have understood that engaging in the course of conduct would be likely to cause such harm or arouse such apprehension or fear, and actually did have that result (s 21A(3)(b)).[21]

23 In respect of the alternative basis for liability under s 21A(3)(b), the Court noted that it is not necessary for the victim to be aware of every act said to constitute the course of conduct. It was observed that:

What matters is that the course of conduct (overall) caused mental harm to the victim or aroused apprehension or fear in the victim for her own safety.[22]

24 At the contested hearing, the appellant represented himself, although Victoria Legal Aid provided counsel to cross-examine the complainant, as a protected person.[23]

25 The charge sheet dated 26 April 2022 initially contained four charges. Charge 1 was the stalking charge, which is the subject of this appeal. Charge 2 pertained to use of a carriage service to harass the complainant during the period 11 July to 1 September 2021. Charge 3 pertained to contravention of an intervention order on 7 October 2021. Charge 4 pertained to contravention of an intervention order on 14 January 2022. Charge 3 was withdrawn during the Magistrates' Court hearing, and charge 4 was struck out during the hearing.

26 At the hearing, oral evidence was given by the following people: the complainant, Ms Livia Marra, Ms Ekaterina Bogatyreva, the respondent, Senior Constable Pole, and the appellant.[24]

27 The complainant gave evidence that she met the appellant on an online dating platform in June 2021, and she met up with him in person on four occasions. On one of those occasions, the complainant said that she had sexual relations with the appellant. Soon thereafter, the complainant informed the appellant that she did not want to see him anymore.

28 At the time, the complainant worked in a childcare centre, performed as a singer in a band, and taught Portuguese to students online through Portuguese Classes Melbourne (the language school), a business owned by Ms Marra.

29 The complainant said that through messages and a telephone call, she made it 'really clear' to the appellant that she did not want to see him again.

30 On 11 July 2021, the complainant sent the appellant a text message and stated:

... I'm not ready or looking for a relationship right now...

31 The complainant gave evidence that the appellant responded to that message via a lengthy text that stated, amongst other things:

No, I don't accept that excuse, let's just talk in person...

32 The complainant said that the appellant continued to text her, and so she eventually blocked his number on her mobile phone.

33 The complainant gave evidence that the appellant subsequently contacted her on WhatsApp and asked her about giving him language classes. The complainant said that she refused this request and asked that the appellant not contact her anymore. The complainant said that Ms Marra subsequently informed her that the appellant had contacted the language school and sought to enrol in a Portuguese course.

34 The complainant also said that she subsequently learned from the appellant that he had joined a dance studio to learn Forro dancing, and that he was making friends with some of the people there. The complainant said that whilst she had never attended dancing classes at that studio, she was aware that the one of the owners of the studio, Leo, was the manager of the band she sang in, and the co-owner, Ms Bogatyreva, sometimes played in that band.

35 The complainant said that the appellant sent her an invitation to connect via LinkedIn. The complainant said that she thereafter looked at the appellant's Facebook profile and saw that he was 'friends' with three people she knew in the Brazilian community. The complainant said that by this time she was scared, as she had asked the appellant to stop contacting her and she felt he was infiltrating her community.

36 On 1 September 2021, the complainant sent a chain of messages to the appellant via Facebook, after learning that the complainant had contacted Ms Bogatyreva about her. In these messages, the complainant, amongst other things wrote:

DON'T CONTACT ME ANYMORE BECAUSE I HAVE NOTHING TO DO WITH YOU.

37 The appellant responded, and amongst other things on this day wrote:

We need to talk in person with [Ms Bogatyreva] to mediate to resolve these ongoing problems.

...

When I knew you I didn't know you suffered from anxiety.

38 The complainant said that Ms Bogatyreva offered to mediate things between the appellant and the complainant, but that she refused this, and told Ms Bogatyreva that she did not want anything to do with the appellant. The complainant said that by this time she was 'super-scared'. The complainant said that as she did not know where the appellant could be, she felt terrified by the whole situation.

39 The complainant said that she decided to leave the band that she was in, as the manager told her that they could not stop the appellant purchasing tickets to attend public events. The complainant also decided to stop teaching Portuguese at the language school, and she thereafter isolated herself to avoid seeing the appellant.

40 In the exhibited material available, an interim family violence intervention order was granted on behalf of the complainant on 13 September 2021, as well as an order made on 31 December 2021 that the final intervention order be served on the appellant via SMS. Both parties in their evidence, made reference to additional intervention orders made in both Victoria and New South Wales on behalf of both the complainant and the appellant, as well as an undertaking by the parties, however related documents were not tendered before the magistrate.

41 Ms Marra gave evidence as to the appellant's communication with her in respect of his request to learn Portuguese in one-on-one classes. Ms Marra said that the appellant requested that Ms Marra not contact the complainant about him, and that he would be happy to go with another teacher. Ms Marra said that she informed the appellant that the school was fully booked at that time. Notwithstanding the appellant's request that the complainant not be informed of his contact with the school, Ms Marra informed the complainant of the appellant's communication. Ms Marra said that she did not want her business to be in the middle of the situation.

42 Ms Marra also said that she arranged cultural events for the Brazilian community. She noted that on 31 July 2021 the appellant had booked two tickets to attend an upcoming festival for children. Ms Marra said that the complainant was to be one of the guests undertaking activities with children at the festival.

43 Ms Bogatyreva gave evidence as to the dance business she ran with her now ex-husband Leo. Ms Bogatyreva said that the appellant attended one of the dance classes there. Ms Bogatyreva also said that the appellant purchased two tickets for a Brazilian festival that she helped organise. Ms Bogatyreva said that the appellant raised with her the idea of mediating the conflict between himself and the complainant. Ms Bogatyreva said she told both the appellant and the complainant to leave each other alone.

44 Ms Bogatyreva also gave evidence that the complainant expressed concerns to her about performing in the band at events where the appellant was in attendance. Ms Bogatyreva said that she told the complainant that they could not ban the appellant from attending events, but that she did not have to interact with him. Ms Bogatyreva said that the complainant later left the band.

45 The appellant's interview with police was tendered through the respondent and thereafter played before the magistrate.

46 After the close of the prosecution's case, the appellant was informed of his right to elect not to give evidence, and his right to call witnesses. Thereafter the appellant elected to give evidence. Soon after the commencement of his evidence the appellant stated that if the hearing was to proceed into a third day, he would need to give evidence via an audio visual link. The appellant stated that as a resident of New South Wales, his time in court was impacting upon his business, and financial situation. The magistrate explained to the appellant why an audio visual link would not be possible.

47 The appellant proceeded to give his evidence on the second day of the trial. The appellant confirmed that he had met the complainant through a dating app, and he said that they met up on five occasions. The appellant said he ended things between himself and the complainant on 24 June 2021, and he prepared to return to New South Wales. At the time, lockdown restrictions were being imposed in New South Wales, and the appellant said that he decided to return to Melbourne. The appellant said that he then spoke to the complainant by telephone, sent her flowers, and shared text messages with her until 11 July 2021. The appellant said that until that time he considered things were amicable between him and the complainant.

48 In respect of the text messages sent to the complainant on 11 July 2021, the appellant acknowledged he could have expressed himself better. However, the appellant said that his text messages to the complainant were 'the opposite of stalking or harassment .... I was trying to keep peace.'

49 The appellant admitted that he sent a WhatsApp message to the complainant asking if she could help him with taking language classes, but that once the complainant refused that request, he did not contact her again.

50 The appellant said that his contact with the complainant via LinkedIn, was by 'accident'. The appellant said that he had created a profile, and he happened to click on the complainant's profile without looking.

51 The appellant said that he had no idea what the complainant was talking about when she accused him through WhatsApp, of stalking her on Facebook and LinkedIn.

52 In relation to the festival tickets, the appellant said that he purchased these before the complainant told him that she did not want a relationship. The appellant said that there were limited social options in Melbourne at the time due to COVID-19 restrictions. The appellant said that he decided to attend, with no intention of stalking or harassing the complainant. The appellant later said he considered it reasonable for him to attend the festival, which was a public event.

53 The appellant considered that the complainant's behaviour was 'similar to BPD'.[25] The appellant said that he therefore contacted Ms Bogatyreva and asked her to a do a welfare check on the complainant. The appellant also asked Ms Bogatyreva to mediate between himself and the complainant.

54 The appellant said that the complainant contacted him on Facebook and WhatsApp after she became aware that the appellant had discussed the complainant with Ms Bogatyreva, and he considered her messages to be abusive. The appellant said that he attempted to de-escalate the situation by responding to the complainant, but that it then 'just started to snowball'. The appellant said that he started to panic and consequently went to the police the next day and sought an intervention order against the complainant.

55 The appellant said that intervention orders were obtained in New South Wales and Victoria, and thereafter the communication between him and the complainant was through the complainant's lawyers. However, on 14 January 2022, the appellant said that he emailed the complainant, to advise that he was stopping legal proceedings.

56 At the conclusion of his evidence, the appellant reiterated that he had never tried to cause the complainant harm, apprehension or fear. The appellant stated that he had 'been under a lot of stress, and suffered anxiety from these matters too.' The appellant denied that his contact with the complainant was behaviour consistent with gaslighting.

57 On 22 June 2023, the magistrate found the appellant guilty of the stalking charge.

58 In his reasons, the magistrate stated that he found the complainant to give truthful and credible evidence.

59 The magistrate accepted the prosecution's evidence that the course of conduct involved:

... messages sent on 11 July onwards, the LinkedIn message, the content [which was] was disclosed in the WhatsApp messages, Facebook Messenger messages, as well as [the appellant] contacting the school where the complainant taught and contacting the friends of the complainant, all in circumstances where it was clear from 11 July the complainant wanted nothing to do with the [appellant]...

60 The magistrate was satisfied that a pattern of conduct, with a continuity of purpose was established. That is, the appellant had engaged in a number of acts to remain involved the complainant's life, whether she liked it or not. This included contacting the language school where the complainant taught, and asking someone the complainant knew, to mediate and do a welfare check on her.

His messages in response to complainant's repeated refusals to engage and want peace and quiet, can only in my view, having read them in their entirety, as viewed as overwhelming in their content and persistence, which combined with his behaviour and seeking to intrude into his [sic] social circle, in my view, amount to a pattern of behaviour designed to demonstrate to the complainant, regardless of her freewill and decision, he would remain present in her life and she was powerless to stop that.

62 The magistrate was also satisfied beyond reasonable doubt that the prosecution had proved the appellant ought to have understood that engaging in the course of conduct, of that kind, would be likely to cause such harm or arouse apprehension or fear. The magistrate stated that the objective test had been met, in that any reasonable person ought to have known the course of conduct engaged in, would arouse fear or apprehension of harm.

63 As the magistrate found the appellant guilty of charge 1, the alternate charge 2 was dismissed.

64 The magistrate convicted the appellant in respect of the stalking charge, and adjourned the proceeding for a five year period. The appellant was released on an undertaking that he would comply with any current intervention order, and was to be of good behaviour during the adjourned period.

65 In his notice of appeal, the appellant identifies eight questions of law. Questions 1 and 2 appear to relate to the magistrate's interpretation and application of s 21A(3)(b). Questions 3 to 6 appear to relate to the magistrate's interpretation and application of s 21A(2). Questions 7 and 8 relate to matters which the magistrate took into account, in his decision to convict the appellant.

66 It is convenient to start with those questions of law which relate to the course of conduct element, as defined in s 21A(2).

Question 3: 'Did the magistrate make an error by failing to make distinction of actions or activities that could reasonably be expected 'to arouse apprehension or fear in the complainant for his or her own safety or that of any other person'?'

Question 4: 'Did the Magistrate make an error by failing to make distinction of actions or activities relevant to s21A?'

Question 5:'Did the magistrate make an error by failing to take into account witness testimony that is relevant to the 'course of conduct'?'

Question 6:'Did the magistrate make an error by failing to take into account relevant factors that are relevant to the 'course of conduct'?'

68 The appellant submitted that each separate act, which constituted the course of conduct the subject of the charge, had to separately satisfy the overarching requirement in the concluding line of s 21A(2).The appellant described this as the 'harm component test'. That is, the magistrate was required to be satisfied that each act was done with the intention of causing harm, or arousing fear. Further, the appellant submitted that the assessment of risk, must be based upon what harm is associated with the act in 'normal circumstances.' Here, the appellant submitted that purchasing a ticket to a public event, would not of itself, raise a concern that this would likely cause harm or arouse fear in another. The same could be said of contacting a language school and asking to enrol in an online class.

69 The appellant's submissions on this must be rejected.

70 First, the course of conduct the subject of a stalking charge, can include any of the acts identified in s 21A(2)(a)-(f). In addition, pursuant to s 21A(2)(g) the course of conduct can extend to a person acting in any other way, that could reasonably be expected to cause such harm or arouse such apprehension or fear. Section 21A(2) expressly refers to stalking constituting a course of conduct, indicating collective acts, not an individual act.

71 The structure and wording of s 21A(2) does not require that each act in the course of conduct needs to satisfy what the appellant refers to as the 'harm component test'. What the Court must consider is whether there are acts by the accused (of the kind listed in s 21A(2)(a)-(g)) which constitute a pattern of conduct evidencing a continuity of purpose,[26] and if so, whether that course of conduct was intended to (or could reasonably be expected to) cause harm or arouse apprehension or fear in the victim.

72 Second, there is no basis to contend that the assessment of the likely harm is to be based upon each of those individual acts in normal circumstances. Rather, as is made clear by s 21A(3)(b), it is 'all the particular circumstances' which are relevant. Considering for example the course of conduct in Berlyn, ringing a door bell may not ordinarily arouse apprehension or fear in the resident. However, when that repeated action, together with the accused attending the residence whilst naked and leaving a sexually suggestive note at the resident's front door, is accepted as constituting a course of conduct, the relevant question in Berlyn was whether those collective acts (as found by the magistrate), were likely to cause harm or arouse apprehension or fear in the resident.

73 Here, it is irrelevant that buying a ticket to a festival, or enrolling in a language school, is not ordinarily considered to be an act likely to cause harm or arouse fear.

74 If the magistrate had considered the likely impact of each of the appellant's act separately, it would have been contrary to the provisions of s 21A(2), and inconsistent with the decision in Berlyn, which as noted above at [14], has been approved by the Court of Appeal on multiple occasions.

75 Therefore, there was no error by the magistrate in considering all of the acts which he was satisfied occurred, and determining whether, collectively, they constituted a pattern of conduct, with a continuity of purpose. The magistrate then correctly considered whether that course of conduct, was engaged in by the appellant with the intention of causing harm or arousing fear.

76 The appellant sought to rely upon his evidence, and that of Ms Bogatyreva, to support a finding that there was no course of conduct, sufficient to satisfy the requirements in s 21A(2). However, this was an impermissible attempt by the appellant to challenge the magistrate's assessment of the evidence, and in particular his finding that the complainant was a credible witness. No error of law has been demonstrated.

77 The appellant's other grounds of appeal, relevant to the course of conduct element of the charge, were also impermissible attempts at merits review.

78 Turning then to the grounds of appeal which relate to the intention element of the stalking charge.

Question 1 :'Did the magistrate make an error misinterpreting the definition or conduct a misapplication of the legal term "ought to have understood" in s21A(3)?'

Question 2 : 'Did the magistrate make an error by failing to make distinction of actions or activities that are of inherit and relevant risk in normal circumstances relating to and that are required to prove "ought to have understood" in s21A(3)?'

80 The appellant submitted that the term 'ought to have understood' requires there to be a reckless component, and that this is ordinarily associated with dangerous or inherently risky acts, such as sky diving, or driving whilst under the influence of drugs. The appellant contended that, in the absence of intentional risk taking, ignorance of the risks of specific acts of conduct, cannot satisfy the test of 'ought to have understood'.

81 Further, the appellant submitted that the requirement that it be 'likely' the course of conduct would cause harm, can only be satisfied if the probability is so high, it is expected to occur.

82 In the alternative, the appellant submitted that 'ought to have understood' was not an objective test as was stated by the magistrate, but rather included a subjective element. It was put that in considering what an accused person ought to have understood, the Court is allowed to take into account an accused's personal circumstances, which may impair the accused's ability to appreciate the risk of the conduct. For example, intoxication, or state of mental health.

83 Here the appellant submitted that the evidence did not support a finding that he had acted recklessly. Further, it was submitted that the magistrate erred by not considering the appellant's personal circumstances, which included the impact caused by the COVID-19 restrictions and border closures. The appellant submitted that had the magistrate taken those subjective circumstances into account, there could be no finding that the appellant ought to have known the course of conduct would be likely to cause harm to the complainant.

84 All of the appellant's submissions on this must be rejected.

85 Section 21A(3)(b) provides, an alternate path to the requirement that the accused person intended or knew that the course of conduct was likely to cause harm or arouse apprehension or fear. I am bound to follow the decision in Huang, which makes clear the phrase 'ought to have understood', in s 21A(3)(b) imports an objective element to the intent required for the offence of stalking.[27]

86 At common law, the relevant test is what a reasonable person of ordinary intelligence and experience would have understood in the particular circumstances.[28]

87 In relation to s 21A(3)(b), the question to be asked is what a reasonable person, in the position of an accused person, taking into account all the particular circumstances, would have appreciated the effect of their actions to be. If a reasonable person would have understood that engaging in the course of conduct, would be likely to cause such harm, or arouse such apprehension or fear, and it had that result, then the intention element of the offence is established.

88 The word 'likely' in s 21A(3) does not require a high degree of probability as contended by the appellant. The ordinary meaning of the word 'likely' is that something is more probable than not. To require a greater probability than likely, in considering what a person accused of stalking ought to have known, would be an error of law.

89 There is also no basis to say that this objective test is only satisfied if it is an obvious risk, and the failure to appreciate it, was reckless. Instead, it is a test of what a reasonable person, in the position of the accused, ought to have known.

90 There was no error by the magistrate in his statement of the relevant test in respect of s 21A(3)(b). Having been satisfied the appellant engaged in a course of conduct which satisfied s 21A(2), the magistrate correctly considered whether the intention element of the stalking charge was satisfied. As the appellant denied intending any harm to the complainant, the magistrate correctly considered whether a reasonable person ought to have known the course of conduct would be likely to cause harm or arouse apprehension or fear.

91 There was no error by the magistrate in not taking into account the appellant's evidence as to the impact which COVID-19 restriction had upon him, when determining what the appellant ought to have known. As was alluded to by Nettle J in Berlyn,[29] whilst it may be possible that an intoxicated accused is incapable of forming the necessary intent in respect of the course of conduct, s 21A(3) can provide an answer to that. The same reasoning can apply to the appellant's claim that the magistrate erred by not allowing his alleged state of mental health to excuse him from liability. The alternate path to liability for stalking, as provided for under s 21A(3) is such that there was no error by the magistrate in not taking this into account.

92 Section 21A(3)(b) is intended to cover situations, such as this, where the prosecution cannot prove the accused person actually intended to cause harm, or knew that the course of conduct would be likely to cause harm. There was no error by the magistrate, in applying an objective test, and finding that a reasonable person, in the position of the appellant, would have appreciated that the course of conduct engaged in by the appellant, was likely to arouse fear.

93 Finally, the appellant's notice of appeal asked:

1. 'Did the magistrate make an error by taking into account irrelevant factors?'
2. 'Did the magistrate make an error by failing to take into account that the complainant's testimony was contradicted by two other witnesses, and may be considered as perjury?'

94 Neither of these are questions of law. Both of these questions are an impermissible attempt by the appellant to challenge the magistrate's assessment of the evidence, and in particular his finding that the complainant was a credible witness. No error of law has been demonstrated.

95 The appellant, in written submissions, in email correspondence sent to my chambers on the morning of 9 May 2025, and at hearing, sought to agitate a range of additional matters in his appeal including:

(a) numerous challenges to the magistrate's findings on the evidence;

(b) numerous challenges as to the adequacy of the magistrate's reasons;

(c) a claim that the magistrate erred in his findings as to charges 3 and 4;

(d) a claim that the magistrate wrongfully refused the appellant's application for a preliminary hearing; and

(e) a claim that the magistrate refused to consider the appellant's claim that there had been malicious prosecution of those charges.

96 These matters were either not contained within the notice of appeal, and/or are not capable of constituting errors of law. At the hearing, I indicated to the appellant that any such submissions would not be considered by me in this judgment.

97 The appellant also sought to make allegations of procedural errors by the magistrate, namely: a claim that the appellant was impaired in his ability to communicate with the legal representative appointed to cross-examine the complainant; that the magistrate rushed the proceeding, and only allowed the appellant 15 minutes to make his case; and the magistrate erred by considering, as part of the course of conduct, actions after 2 September 2021, which were subject to a legal matter in another state.

98 In respect of the alleged procedural errors, I say as follows.

99 The appellant complained that his ability to communicate with the solicitor appointed to cross-examine the complainant was compromised, as the appellant was required by the magistrate to move to a side of the court room 'in isolation', whilst the complainant gave evidence via audio visual link. The appellant contended that there was no basis for this in legislation, and it was an act of procedural misconduct.

100 At the time the complainant gave evidence, charges 3 and 4 which pertained to family violence intervention orders were before the magistrate. Therefore, the complainant was a protected person, under the Criminal Procedure Act.[30] Accordingly, the complainant was not permitted to be cross-examined by the appellant,[31] and instead that was done by the barrister provided by Victorian Legal Aid.[32] The magistrate was entitled to direct that alternative arrangements be made for the giving of such evidence, to remove the appellant from direct line of vision of the complainant.[33] Under s 360 of the Criminal Procedure Act, the court may direct that alternative arrangements be made whilst a witness is giving evidence. This includes making arrangements such as using screens in order to remove the accused from direct vision of the witness.

101 At the hearing, the magistrate explained that because of the setup of the particular court room the contested hearing was listed in, it was necessary for the appellant to move from where he was sitting at the bar table, to the last seat on that row to ensure that the complainant, whilst giving evidence remotely, could do so without seeing the appellant. There was no procedural error by the magistrate in directing the appellant to move, and rather, was required of him pursuant to the above statutory provisions.

102 The appellant's complaint that the hearing was rushed, and he was only given 15 minutes to be heard, is not borne out upon a reading of the transcript. The hearing was initially listed for 1 day, but ran for 2 days. Shortly after the applicant commenced his evidence on the second day of the hearing, the magistrate indicated to the appellant that the matter could run into a third day, but that the appellant would not be permitted to give his evidence remotely. The appellant continued to give his evidence, and at the conclusion of his evidence stated that was 'pretty much it.' The appellant thereafter made oral closing submissions, and at the end of those submissions, stated 'that's basically it' and that he did not think he could 'say anything more.' Whilst the precise period of time taken for the appellant to give evidence and make submissions is not apparent from the transcript, it's length far exceeds what could be said in fifteen minutes. There is no basis for the appellant to allege he was denied the opportunity to be fairly heard at the hearing.

103 There is also no basis for the appellant to allege that the magistrate had no jurisdiction to consider actions by the appellant after 2 September 2021, as by that time, the appellant had obtained a New South Wales intervention order against the complainant. That intervention order does not prevent the magistrate from considering the applicant's conduct subsequent to that date. Further, as s 21A(6) states, as long as the complainant was in Victoria at the time the conduct occurred, it is immaterial if some of the appellant's conduct constituting the stalking offence occurred outside Victoria.

104 Finally, in his oral submissions, the appellant briefly advanced a further complaint that the Magistrate erred in not considering a defence that he was entitled to pursuant to s 21A(4A). As I understood this submission, the appellant contended that because his interactions with the language school and the dance class business occurred in 'the normal course of a lawful business' these were 'protected act[s]' which provided him with a defence. This ground was not advanced in his notice of appeal. Further, it misapprehends how the defence contained in s 21A(4A) is capable of being applied.

105 The appellant has failed to satisfy me that there was any error of law made by the magistrate. I therefore dismiss this appeal.

106 I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.

[1] The Magistrates' Court is not a party to the proceeding. In a letter to the principal registrar of this Court dated 5 February 2024, the director of legal policy at the Magistrates' Court advised that the Magistrates' Court did not intend to take an active role in the proceeding and will abide by the decision of this Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal, Ex parte Hardiman & Others [1980] HCA 13; (1980) 144 CLR 13.

[2] See Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353, [49] ('Cosmopolitan'), citing Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410,415 [13]. See also Cosmopolitan (n 2) [168] (Whelan JA with whom Santamaria JA agreed).

[3] Berlyn v Brouskos [2002] VSC 377; (2002) 134 A Crim R 111 ('Berlyn').

[4] The magistrate was found to have erred in respect of this factual finding. Justice Nettle held that the evidence was capable of supporting a reasonable supposition that someone other than the accused rang the doorbell at those times, and thus the magistrate's finding was not open.

[5] Crimes Act 1958 (Vic) s 21A(5) ('Crimes Act').

[6] Berlyn (n 3) [24], citing Gunes v Pearson (1996) 89 A Crim R 297.

[9] See R v Hoang [2007] VSCA 117; (2007) 16 VR 369, [94] ('Hoang'); R v Anders [2009] VSCA 7; (2009) 20 VR 596, [26]; RR v The Queen [2013] VSCA 147, [78] ('RR').

[10] [2003] VSC 460; (2003) 9 VR 136.

[13] Ibid 150-1 [42] (citations omitted).

[17] Crimes Act (n 5) s 21A(8), as inserted by Crimes Amendment (Bullying) Act 2011.

[20] [2022] VSCA 220.

[23] Criminal Procedure Act 2009 (Vic) s 357(2) ('Criminal Procedure Act').

[24] Senior Constable Pole gave evidence relevant to charges 3 and 4.

[25] Although the appellant did not explain this acronym, I take it to mean Borderline Personality Disorder.

[28] Glasgow Corporation v Muir [1943] UKHL 2; [1943] AC 448, 452 (Lord MacMillan).

[30] Criminal Procedure Act (n 23) s 353(1)(b).