Atkins (a pseudonym) v Shuttleworth [2025] ACTSC 414

1. On 15 March 2024, the appellant filed a notice of appeal from an order made by a Magistrate on 21 February 2024 convicting the appellant of one count of stalking and one count of aggravated common assault.

2. By way of an application filed on 6 March 2025, the appellant sought to amend the notice of appeal to include an additional ground, namely that the proceedings before the Magistrate miscarried as a result of the failure of the appellant’s legal representatives at the time to make reasonable enquiries concerning the appellant’s mental health conditions, including his diagnosis of autism spectrum disorder.

3. Upon the hearing of the appeal, counsel for the respondent did not object to the appellant been given leave to amend the notice of appeal to include the additional ground, nor did he take issue with the application to adduce fresh evidence in the form of the affidavits from the appellant’s mother, the instructing solicitor and a report from a forensic psychologist. Accordingly, I granted leave at the hearing for the new ground to be added and received fresh evidence. I heard argument on the merits of that ground during the argument on appeal.

4. Both parties accepted that the real issue for determination in respect of this ground is whether the failure to adduce the evidence of the diagnosis of autism and possible schizophrenia amounts to a material irregularity in the trial which leads to a significant possibility that the irregularity affected the outcome of the trial.

5. As Mossop J in Kirk v Hicks [2024] ACTSC 363 observed at [92]: … The ultimate question will be whether or not there is a miscarriage of justice. Although the ground of appeal is supportive of an allegation of negligence (see the references to “failure” and “reasonable inquiries”), that is not essential to the ground of appeal which may be established by the ultimate conclusion that there was a miscarriage of justice …

6. Both parties accepted that the test to be applied with respect to this ground of appeal is as submitted by counsel for the respondent, namely whether there is a significant possibility that the absence of material about the appellant’s mental health diagnosis in the report of Dr Amanda J White dated 5 December 2024 affected the outcome of the hearing.

7. That is the basis on which I have approached consideration of this ground.

8. I say at the outset that for reasons which I will explain I have reached the conclusion that this particular ground of appeal has been substantiated. That ordinarily would be sufficient to dispose of this appeal and resulting at least the stalking charge being remitted to the Magistrates Court for retrial.

9. However, the remaining grounds raise an issue as to whether the conviction on the stalking charge is unreasonable and unsupported by the evidence. If any of those particulars are successfully made out that could result in the dismissal of the stalking charge at the very least.

10. I will therefore deal with each particular in chronological order.

11. The principles to be applied on the hearing of this appeal are those set out in M v The Queen [1994] HCA 63; 181 CLR 487. I note in particular: [96] Section 214 of the Magistrates Court Act 1930 (ACT), which governed the appeal from the magistrate in this case, uses different language. It does not limit the power to set aside a conviction to cases where the verdict is unreasonable or involves a miscarriage of justice. Instead, it requires the Supreme Court to have regard to the evidence given below and empowers the Court to draw inferences of fact. It confers a qualified power to receive fresh evidence. This form of appeal can be placed within the category of appeals by way of rehearing (in that it is clearly neither a hearing de novo nor an appeal in the strict sense).

12. The appeal is brought pursuant to Div 3.10.2 of the Magistrates Court Act 1930 (ACT). In Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27, the Court said: [A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.

13. I have also been assisted by the decision of Taylor J in Buttriss v Jarvis [2024] ACTSC 247 at [85] – [87]. [85] As Baker J set out in Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], where there is a complaint that the verdict is unreasonable, the Court must “ask itself whether it thinks that upon the whole of the evidence it was open to [the tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at 49 [7] (per Mason CJ, Deane, Dawson and Toohey JJ) (M v The Queen). As Baker J further observed in Ji v Stone [2023] ACTSC 54 at [153] “there may be little difference in the practical outcome between the two formulations” and at [154] whether “applying the test in M v The Queen or applying “rehearing” principles in the Court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below”. [86] If error is established the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Company Inc v Mc Dermott [2016] HCA 22; 90 ALJR 679 at [43]. [87] Any consideration of error in a Magistrate’s decision must take into account the pressures of the Magistrates Court: Alexander at [21]. Appeals by way of re-hearing require a “real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 [18] and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149 [55]- [56]. The onus is on the appellant to identify and demonstrate error in the Special Magistrate’s findings: Alexander at [22]. Background

14. In this matter, the facts relied on by the prosecution to prove the charges were as follows. The appellant and the complainant had been in an intimate relationship for approximately six to eight months prior to December 2022. Both the appellant and the complainant were 17 years old then.

15. The complainant ended the relationship by sending a text or texts on about 27 December 2022 in which she said words to the effect that she did not believe they should be together any longer. A few hours later, the appellant knocked on the front door of the complainant’s home. He had walked a long way from his own home to ask the complainant why she was breaking up with him. During the discussion between the pair on the front steps of the complainant’s home, the complainant’s father interrupted them by inviting the appellant to come inside and have dinner with them. The appellant ended up spending the night at the complainant’s home and left early the next morning.

16. There was no further contact between the complainant and the appellant until 31 January 2023. On that day the appellant went to the complainant’s apartment building in Kingston and waited outside for the complainant to return home.

17. After the complainant returned, the appellant followed her into the building and confronted her inside the building, a conversation then followed in which the appellant told the complainant that she owed him an explanation, that he had travelled a long way and she had a moral responsibility to talk to him.

18. The complainant did not enter her apartment as she did not want the appellant to know which apartment she lived in but took the opportunity to run into the car park. The appellant followed her and cornered her in the car park. At some point during this confrontation, the appellant snatched the complainant’s keys out of her hand and held onto them for some time. The complainant attempted to take the keys back but desisted after the appellant pushed on the shoulder. Eventually, the appellant returned the keys.

19. When a member of the public came into the car park, the complainant took the opportunity to leave and began walking towards Parliament House in search of an authority figure. During this time the appellant called her parents, who in turn called the police.

20. The appellant continued to follow the complainant until she entered the building of the Department of Foreign Affairs and Trade (DFAT). There she attracted the attention of a security officer. Thereafter, the appellant waited in a courtyard and the complainant waited inside until the police arrived. He was arrested.

The trial

21. At trial before the Magistrate, the appellant faced four charges: A. One count of stalking in relation to both the conduct in Pambula and in Canberra (CH 2024/94); st B. An alternative count of stalking in relation to the conduct only in the ACT on 31 of January 2023 (CH 2023/215); C. One count of robbery (CH 2023/216); and D. An alternative charge of aggravated common assault (CH 2024/93) (as an alternative to the robbery charge).

No case to answer

22. At the conclusion of the prosecution case, counsel for the defendant made a no case to answer submission in respect of all four charges.

23. After hearing submissions, the Magistrate ruled that there was no case to answer on the charge of robbery (CH 2023/216) and dismissed it however, he ruled that there was a case to answer on the remaining three counts.

24. At some stage, the stalking charge (CH 2024/94) in relation to the acts in Pambula and the ACT was amended to allege dates between 1 December 2022 and 1 February 2023.

The Magistrate’s Reasons

25. At the conclusion of the trial, the Magistrate convicted the appellant of one charge of stalking and one charge of aggravated common assault based on the taking of the keys. The Magistrate found the stalking charge (CH 2024/94) proved on the basis of the incident in Pambula on 27 December 2022 and the incident in Canberra on 31 January 2023.

26. Although it was not necessary for the Magistrate to decide the point in light of his factual finding as to the Pambula incident his Honour appears to have accepted the prosecution argument that the actions of the appellant on 31 January 2023 constituted more than one “occasion” for the purposes of s 35(2) of the Crimes Act 1900 (ACT).

27. The Magistrate then dismissed the backup charge of stalking (CH 2023/215) and recorded convictions on the aggravated assault (CH 2024/93) and stalking (CH 2024/94) charges.

The grounds of appeal

28. The appellant submits that the verdicts are unreasonable by reason of the following five particulars: A. The Magistrate erred in finding that the appellant’s conduct was reckless in making the complainant feel harassed. B. The Magistrate erred in finding the events on 31 January 2023 constituted to one or more occasions for the purposes of s 35(2) of the Crimes Act. C. The Magistrate reversed the onus of proof in finding the offence of aggravated common assault was established (this relates to his finding that, in the absence of any defence questioning about whether there was bodily contact when the keys were taken by the young person from the complainant, bodily contact can be assumed to have occurred). D. The Magistrate erred in finding the 000 call exclusively depicted events that occurred when the complainant reached the DFAT building. E. The proceedings before the learned Magistrate miscarried as a result of the failure of the appellant’s legal representatives to make reasonable enquiries concerning the appellant’s mental health conditions, including his diagnosis of autism spectrum disorder.

A: Error in relation to recklessness

29. The first complainant is a contention that the Magistrate erred in finding the appellant’s conduct was reckless in making the complainant feel harassed.

30. The starting point for consideration of this issue is the definition of stalking found in s 35(1) of the Crimes Act which states: (1) A person must not stalk someone with intent— (a) to cause apprehension, or fear of harm, in the person stalked or someone else; or (b) to cause harm to the person stalked or someone else; or (c) to harass the person stalked. Maximum penalty: (a) for an aggravated offence against this section— (i) Imprisonment for 7 years if— (A) the offence involved a contravention of an injunction or other order made by a court; or (B) the offender was in possession of an offensive weapon; or (ii) in any other case—imprisonment for 3 years; or (b) for an offence against this section other than an aggravated offence— (i) imprisonment for 5 years if— (A) the offence involved a contravention of an injunction or other order made by a court; or (B) the offender was in possession of an offensive weapon; or (ii) in any other case—imprisonment for 2 years. Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

31. As to the requisite intent, s 35(4) states: (4) Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely— (a) to cause apprehension or fear of harm in the person stalked or someone else; or (b) to harass the person stalked.

32. This is not an offence for the purposes of the Criminal Code 2000 (ACT). Both parties acknowledge that the appellant would be reckless if he realised his conduct would be likely to harass the victim but went ahead regardless. It is a subjective test concerned with the state of mind of the offender and not the mind of a reasonable person.

The Magistrate’s reasons

33. When discussing the element of intent in relation to the incident at Pambula. The Magistrate reasoned as follows: The complainant ended that relationship by telephone and without invitation the defendant attended her home in Pambula, New South Wales. He walked some two hours to get there. I find that at the very least he was reckless, that his unannounced presence at her house after she had broken off the relationship would at least cause annoyance, that is, he realised that his attendance would likely harass her in the sense of at least annoying her, but did it regardless, no doubt knowing or allowing his self-interest in finding out answers to the end of the relationship winning over concerns about the complainant’s comfort and security in her own home. This event, in terms of the stalking charge, was complete upon his attendance and contact with the complainant.

34. As to the incident in Canberra, the Magistrate’s reasons are as follows: I find that he had exactly the same reckless intent when he attended the Canberra and the complainant’s new residence on 31 January 2023. He realised that his attendance was uninvited at her new home and that his attendance would likely again cause annoyance, but he attended anyway. The fact that he felt the need to say things like ‘I’m not here to hurt you’ was compelling evidence of his reckless state of mind and realisation of the annoyance at least that was going to occur – or at least was likely to occur. For what it is worth, I find that him following the complainant out of those premises at Kingston and all the way to the DFAT building was a separate occasion for the purpose of stalking. I find that the same reckless intent is proved for that event or occasion.

35. It is relevant to mention at this stage that the Magistrate did in the course of his reasons, make the following observation. I pause to note that he did give evidence that he suffered from autism. He was not asked how that affects him or what he had been told about the diagnosis. No expert evidence was called on this topic. There was no agreed facts about any diagnosis. No witness was questioned about the issue, including the complainant who was alleged to have been in an intimate relationship with the defendant for about six months. As a consequence, that evidence was inadmissible hearsay and I ignored it.

36. The Magistrate then went on to say that it was unclear whether the defendant’s evidence of his state of mind in relation to the stalking charge and the taking of the keys had its genesis in counsel for the prosecution’s submissions and ruling as the prosecution had submitted, or whether it was out of a desire to avoid complicity for his behaviour. Either way, the Magistrate found the appellant’s evidence was not believable.

Discussion

37. The Magistrate’s characterisation of the appellant’s state of mind at the time of walking to the complainant’s home on 27 December 2022 as reckless overlooks some of the important evidence given by the witnesses about that incident.

38. It was not in dispute that the complainant and the appellant had been in a relationship of some months before December. It was not unusual for the appellant to turn up at the complainant’s home. They spent a lot of time there together and walked regularly on nearby beaches.

39. I have read the transcript of the evidence at trial, and viewed the record of interview of the complainant tendered at the trial. I acknowledge that I have not had the advantage of seeing and hearing the appellant as the Magistrate had. However, I consider it to be uncontroversial that all of the evidence shows that the complainant and the appellant were very secretive about their relationship, and both the appellant and the complainant were emotionally vulnerable adolescents who experienced some difficulties in communicating.

40. The complainant announced that she wanted to end the relationship by text message earlier on 27 December 2022. There was no evidence that she had communicated that she never wanted to speak to or have contact with the appellant again.

41. The appellant described his state of mind on that day: So on your way to the house, - - -?--- Yes. - - - can you tell the court what specifically you were intending to achieve?---I was – I wanted to understand why she wanted to end the relationship over that – that message, and also I wanted to be able to say goodbye to her and I – obviously you don’t need to do that in person, but at the time to me it felt kind of important or as though I wanted to be able to do it in person. Were you intending to harass her?---No. … Did it cross your minds that the actions you were going to take when you arrived at [the complainant]’s house would be likely to cause her to feel harassed?---To feel harassed? I – I didn’t – I didn’t think that she would be bothered or harassed because I was just turning up and I assumed that she would be happy to speak to me when I got there, and she was generally, and it didn’t – when I was going there, I didn’t think that, like she would be bothered by it or that – because it was pretty normal for me to turn up at her house, and I – even though she’d sent that, I thought that she wouldn’t mind or wouldn’t be bothered at all by it. Yes.

42. The complainant in her evidence acknowledged that she may not have communicated clearly to the appellant when he arrived at the home on 27 December 2022. She said: And how long did that conversation go on for?--- I sat on the steps at one – for about 10 minutes and after that he wasn’t sort of understanding why I was breaking up with him, even though it seemed quite obvious to me. I might not have made it as apparent as I thought because I decided to go back into the house because I just did not want to deal with it anymore. I had cried too much that morning and I tried to walk off and I shut the door. Yes.

43. In the middle of the conversation which the complainant and the appellant had outside the complainant’s home on 27 December 2022, the complainant’s father interrupted the conversation and invited the appellant in. There is no dispute that at that stage the complainant had not informed either of her parents that she wished to terminate the relationship with the appellant.

44. Given that this event occurred only hours after the complainant had sent the texts breaking up with him, the appellant’s evidence is inherently plausible.

45. The evidence in relation to the accused’s state of mind on 31 January 2023 stands in a different context. By that stage the complainant and the accused had not communicated with each other since 27 December 2022. There can be no doubt that at that stage the appellant knew or must have known that the relationship between them was over and his actions in travelling to Canberra, waiting outside the apartment building, cornering her in the car park and following her down the street until the police arrived would likely cause harassment.

46. So while there is no doubt that the events on 31 January 2023 in Canberra could constitute one “occasion” for the purposes of the stalking offence, the events on 27 December 2022 in Pambula could not. In my view, it was not open to the Magistrate to conclude that the prosecution had established beyond reasonable doubt that the appellant had the requisite intent on that occasion.

47. Given the whole of the evidence about the events that unfolded on 27 December 2022, I do not accept that it was open to the Magistrate to conclude beyond reasonable doubt that the appellant intended to harass the complainant or adverted to the possibility that his arrival at her house in those circumstances would upset her.

48. I consider that the evidence in respect of that count as a whole is incapable of supporting a conclusion, beyond reasonable doubt that the appellant had the requisite intent at the time he went to the complainant’s house on 27 December 2022 or at any time thereafter on that day.

49. For these reasons, I consider that the complaint in respect of this ground of appeal has been made out.

B: Error in relation to meaning of “occasion”

50. This complaint raises an issue as to whether the conduct engaged in by the appellant on 31 January 2023 alone comes within the definition of stalking in s 35(2) of the Crimes Act: (2) For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following: (a) follows or approaches the stalked person; (b) loiters near, watches, approaches or enters a place where the stalked person resides, works or visits; (c) keeps the stalked person under surveillance; (d) interferes with property in the possession of the stalked person; (e) gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person; (f) telephones, sends electronic messages to or otherwise contacts the stalked person; (g) sends electronic messages about the stalked person to anybody else; (h) makes electronic messages about the stalked person available to anybody else; (i) acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person; (j) engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

51. Counsel for the respondent contended that the appellant’s conduct on 31 January 2023 was a course of conduct consisting of multiple occasions; namely one occasion where the appellant waited outside the complainant’s apartment block watching for her to come home, one occasion when he approached and confronted the complainant in the car park, one occasion when he grabbed the keys out of her hand, one occasion when he followed her to DFAT and another occasion in waiting while the complainant was inside DFAT. If that submission is correct then it would follow that the prosecution did prove one offence of stalking on the basis of the events in Canberra on 31 January 2023 alone.

52. Counsel for the respondent contended that it is significant that there is no requirement in s 35(2) that there be “separate” occasions, nor any temporal requirement that the conduct occur on separate days, weeks or months. He cited an example of multiple occasions on the same day as a contact by phone at different points in time, or an attendance at a home in the morning and at a workplace in the afternoon. In such a case, according to the respondent’s submission, the addition of more conduct, such as following a person from their home to work, or sending more messages simply has the effect of adding more occasions. It does not fuse the occasions so as to dispel criminality from the conduct.

53. Counsel for the appellant contended that although the appellant performed a number of acts enumerated in s 35(2), including all of those matters enumerated in subsection (2)(a) – (d), that does not prove that there were multiple occasions. Carrying out multiple acts proscribed in s 35(2) can all occur on the one occasion.

54. Neither of those submissions are uncontroversial, however, they do not elucidate what the word “occasion” or “occasions” actually means within the context of s 35(2) of the Crimes Act.

55. The offence of stalking has been defined in different terms in other Australian jurisdictions. Because of that, the counsel for the respondent submitted that there is limited utility in decisions from those other jurisdictions. However, the appellant’s counsel pointed to other statutory definitions in other Australian states, particularly Queensland as supporting the proposition that the conduct which occurred on 31 January 2023 was one occasion in which the appellant carried out a number of the actions proscribed by s 35(2)(a) to (d).

56. I have been assisted by the analysis of Nettle J in Berlyn v Brouskos [2002] VSC 377; 134 A Crim R 111 in relation to the genesis of the offence of stalking in Australia. While the Victorian legislation differs markedly from the ACT legislation, his Honour’s analysis of the evolution of the stalking legislation in various Australian jurisdictions is instructive in construing the meaning of the words as “on at least 2 occasions” as they appear in s 35(2) of the Crimes Act.

57. In Berlyn, his Honour was required to determine the proper construction of s 21A of the Crimes Act 1958 (Vic) which relevantly defined stalking as “… if the offender engages in a course of conduct” which involves a number of enumerated actions.

58. Nettle J ultimately concluded that for the purpose of s 21A of the Victorian Crimes Act, conduct is not “a course of conduct” within the meaning of the Victorian legislation unless it is engaged in on more than one occasion, and unless it is protracted whatever else may need to be shown. His Honour observed at [17], [21] – [22] of the judgment: [17] The fact that the Victorian legislation refers only to a “course of conduct”, rather than to “two separate occasions”, as in Northern Territory and South Australia, or to “a course of conduct… involving at least 2 separate occasions”, as in Queensland, may suggest an intention on the part of the Victorian Parliament to avoid the requirement of two separate occasions and, like New South Wales, to make any prescribed act be enough to amount to stalking (if committed with the requisite intent or effect). … [21] The textual differences between the American model and the various Australian States’ provisions are significant. But the similarities are striking. To take s. 359A of the Queensland Criminal Code as an example, being the first Australian provision and from which most of s. 21A of the Crimes Act appears to have been copied, it seems likely that the expression “course of conduct” in the Queensland Code was intended to have a meaning similar to that given to it in the Californian Code, and it may also be supposed that the Queensland requirement of acts “on at least 2 separate occasions” was intended to correspond with the Californian requirement of repeated acts of harassment. [22] So, in the form in which the Queensland provision first appeared, it prohibited a person engaging in a pattern of conduct composed of a series of proscribed acts over a period of time, however short, provided they occurred on at least two separate occasions, if they evidenced a continuity of purpose and were committed with proscribed intent (or in other specified circumstances) … (Footnotes omitted).

59. His Honour opined that conduct on only one “occasion” is unlikely to constitute a pattern of conduct evidencing continuity of purpose unless the conduct was protracted. Of course his Honour was dealing with an Act which does not require conduct on more than one occasion but which requires conduct evidencing a continuity of purpose which could amount to a course of conduct. If the facts here occurred in Victoria, there would be no doubt that the conduct of the appellant on 31 January 2023 amounted to stalking, whether it be characterised as one occasion or more.

60. In 1999, the Queensland legislation was amended to make it clear that the offence is committed when the relevant conduct is engaged in “on any occasion if the conduct is protracted or on more than one occasion …”

61. I agree with the appellant’s submissions at first instance that the evolution of the Queensland’s stalking provisions which were originally framed in materially similar terms to the offence of stalking under s 35 of the Crimes Act is instructive in assisting this Court to determine the meaning of occasion within the context of s 35 of the Act.

62. I agree with the appellant’s submissions that the characterisation of the appellant’s conduct on 31 January 2023 is to be more appropriately characterised as one occasion of stalking in which the conduct was protracted, rather than multiple occasions, for the purpose of the Crimes Act (ACT). That characterisation is consistent with the purpose of the legislation and the literal meaning of the language in s 35. I consider it to be a less artificial characterisation of events on 31 January 2023 than the characterisation contended for by the respondent.

63. The Queensland legislation makes it clear that conduct of the type engaged in by the appellant on 31 January 2023 would have been sufficient to constitute the offence of stalking. However, in the ACT because of the requirement that the conduct occur on “at least two occasions”, I do not think that a single protracted occasion such as the appellant’s behaviour on 31 January 2023 is sufficient to constitute the offence of stalking under the ACT legislation.

64. The fact that the ACT legislature has not explicitly lowered the threshold in the same way as the Queensland legislation did is significant in reaching that conclusion. I accept that minds may differ on this issue. The competing arguments from both parties on the hearing of this appeal demonstrates that fact. However, I consider that it is a more common-sense approach consistent with the purpose of s 35 of the Crimes Act to characterise the conduct which occurred on 31 January 2023 as one occasion, albeit protracted.

65. In any event as Nettle J observed in Berlyn, once the statutory definition of stalking has been properly construed, whether or not the relevant conduct comes within the definition of stalking is ultimately a question of fact.

66. I do not mean to imply that there could never be more than one occasion on the same day for the purposes of s 35. The critical features of the conduct on 31 January 2023 from which I have concluded that it was only one “occasion” are the fact that from the time the appellant arrived at the apartment building until the time the police arrived at the DFAT building, there was unbroken contact between the appellant and the complainant. Certainly, during that approximate two-hour period in the late afternoon 31 January 2023, the appellant carried out a number of actions of the kind enumerated in s 35(2)(a) – (d) of the Crimes Act.

67. Whether or not particular conduct can be characterised as one occasion or more than one occasion will always ultimately be a question of fact.

68. To be clear, there may be circumstances where actions of a person on the same day or even within a short space of time could constitute more than one occasion but for the reasons I have explained, the appellant’s conduct on 31 January 2023 is not one of these cases.

69. In light of my findings on this issue, this ground is upheld.

C: Did the Magistrate reverse the onus of proof when considering the elements of assault?

70. I turn now to the next complaint that the Magistrate reversed the onus of proof in finding the offence of aggravated common assault established by finding that in the absence of any defence questioning about whether there was bodily contact when the keys were taken by the appellant from the complainant, bodily contact can be assumed to have occurred.

71. In my view, this ground is misconceived. It has long been the law that the slightest touch can amount to an application of force for the purpose of the offence of common assault.

72. The facts here, demonstrated that the complainant had the keys in her hands when the appellant took them out of her hand “with a teensy bit of a struggle”. The complainant said she had been holding the keys in her hands, kind of fidgeting with them and he ripped them out of the hand. She also said that she was looking at the ground and was caught by surprise by the taking of the keys and that it happened quickly.

73. I accept the prosecution’s submission that, in these circumstances, it is inconceivable that such a sudden move did not involve the application of some force to the complainant. This is so particularly in light of the evidence that there was a short struggle between the two of them as she tried to regain possession. There is no merit in this ground.

D: Error in consideration of 000 Call

74. The fourth complaint relates to the Magistrate’s finding about the appellant’s credibility which underpinned his findings, including in particular that the appellant was lying when he said the complainant “suddenly started crying at DFAT. This was in stark contrast to the prosecution case, including the recording of a telephone call prior to DFAT evidencing her distress, which form part of the complaint evidence”.

75. The appellant submitted that the Magistrate erred in making that finding as the 000 call does not evidence the complainant crying in that call prior to her arrival at DFAT beyond reasonable doubt.

76. I have listened to the 000 call which was tendered at trial. It is correct as the appellant submitted that until the point where the complainant reached the DFAT lobby, the complainant was not audibly unambiguously crying. It is a reasonable inference to draw that the appellant who was following behind the complainant may not have seen or heard her crying until they arrived at the DFAT building.

77. To that extent, then the Magistrate may have mistaken that evidence in rejecting the appellant’s statement that she suddenly started crying, however, that was not the only basis on which he rejected the appellant’s evidence.

78. The impugned finding was but one of a number of examples the Magistrate gave for concluding that the appellant’s evidence was untruthful and manufactured.

79. The complainant had given evidence that she continually told the appellant she did not want to talk to him and was crying during the walk to DFAT. That evidence was not challenged.

80. In all of the circumstances, I do not consider that the Magistrate’s remark amount to anything more than a minor factual error which could not have tainted his ultimate conclusion that the appellant was lying. Therefore, this complaint is dismissed.

E: Fresh evidence

81. I turn now to the fifth complaint that the proceedings miscarried by reason of the failure on the part of the appellant’s legal representative to make reasonable enquiries concerning the appellant’s mental health conditions including his diagnosis of autism spectrum disorder.

82. I have explained earlier in these reasons why leave was granted at the hearing to the appellant to file the additional ground of appeal and I received the fresh evidence in the form of the affidavits and report of the neuropsychologist Dr White.

83. I accept that the correct test for establishing that there has been a miscarriage of justice is that enumerated in TKWJ v The Queen [2002] HCA 46; 212 CLR 124. That test is whether there was a material irregularity in the trial which has resulted in a significant possibility that the irregularity affected the outcome.

84. The appellant contends that the failure on the part of the legal representative at first instance to adduce the evidence of Dr White or any expert evidence amounts to a failure to adduce evidence which may have supported a defence whereby the fault element of the charge of stalking could have been negated. That is to say that there is a significant possibility that the prosecution may not have proved beyond reasonable doubt that the accused possess the requisite intent to make out the stalking charge if that evidence had been made available to the Magistrate.

85. That contention requires consideration of the report of the expert.

86. In her report, Dr White, a forensic psychologist and clinical neuropsychologist, expressed the opinion that the appellant meets the criteria for autism spectrum disorder, a neurodevelopment condition that is permanent throughout the lifespan and, as such, would have been present at the time of the offending.

87. Specifically, Dr White said: His ASD impacts his social communication skills (such as understanding social nuances in conversation), understanding of other persons’ feelings and perspectives, as well as his own feelings and emotions and articulating same. Further, his behaviour can be fairly inflexible and rigid. It is common that individuals with ASD, particularly those with severity of Level 1 and a high level of intelligence, no difficulties or external signs of ASD are immediately observable. While others may notice idiosyncrasies, this would unlikely be viewed by others as a mental health disorder. This is consistent with [the appellant]’s self-report responses indicating tendency to mask certain behaviours in order to assimilate with societal rules and expectations.

88. She also expressed the opinion that the appellant was currently experiencing possible symptoms of phase schizophrenia including perceptual disturbances, paranoid thought content, cognitive changes, although diagnosis may not be confirmed for some time. Dr White went on to explain that that, if so, that diagnosis may also have been relevant to the offending and explain some of the changes noted in his mood, presentation and behaviour over the course of 2022 to now given the gradual onset of such a condition, and early symptoms in 2022 and 2023. While changes in behaviour and mood may have been noticeable to immediate family, these may not be attributed to a mental illness per se, especially noting other significant changes in his life at that time, including recommencing face-to-face schooling and in the context of his first intimate relationship.

89. Dr White then said: Core to an ASD diagnosis is difficulties in social communication skills and includes appreciating subtleties in communication such as discerning communication and social cues (verbal and nonverbal), understanding and appreciating others perspectives and interpreting same. It can be challenging to engage in and understand complex emotions and this is likely made more challenging in this case due to [the appellant]’s lack of social exposure and experiences prior to his relationship with [the complainant]. He had and continues to have limited social contact and assistance to navigate social relationships, spending much of his adolescence homeschooled. He has not received any formal supports throughout his life to assist him with these challenges or how to approach and manage complex feelings and emotions. While [the appellant] is able to understand the effect of his behaviour on others in a general sense, his ability to innately consider alternative perspectives to his own is likely to be an area of personal weakness. He may have difficulty appreciating same if not overtly apparent or explicitly stated to him by others. He would be able to alter his behaviour in accord with external stimuli if it is explicit and if he has understood same. Similarly, while he would be able to respond to changes in the behaviour of people with whom he is interacting, these would need to be overt and apparent to him. He is unlikely to detect changes that are not explicitly stated either via verbal or nonverbal gestures.

90. In summary then, the effect of Dr White’s evidence is that the appellant’s autism spectrum disorder at the time of the offending impacted his communication skills, understanding of social nuances, understanding and appreciation of the perspective of others, particularly, if not overtly apparent or explicitly stated to him.

91. While I can accept that Dr White’s report is not likely to have made a significant difference to the Magistrate’s finding in respect of the assault charge or the occasion on 31 January 2023 given that the complainant on that date told the appellant she did not want to speak to him, told the appellant she wanted to be left alone, told him to leave or go away, told him to stop following her and the appellant took the keys and told her he would not give them back unless she spoke to him, however, I cannot conclude that Dr White’s report would have made no significant difference to the Magistrate’s findings about the occasion on 27 December 2022.

92. In the context of considering the first complaint on appeal in reaching my own conclusion about the state of the evidence about the appellant’s state of mind at the time of the December occasion, I took into account the complainant’s evidence to which I have already referred in [42] above in which she acknowledged that she might not have been as clear as with the appellant as she should have.

93. In addition to that evidence, even though the Magistrate rejected much of the appellant’s evidence as to the critical events about which he gave evidence, there was no challenge to the appellant’s evidence that he did not like socialising, had been homeschooled between Year 7 and Year 11, lacked social awareness and had been diagnosed with autism (I pause here to mention that it is not clear to me why the Magistrate described the appellant’s evidence that he was autistic as hearsay and ignored it).

94. Even without the benefit of Dr White’s expert opinion, I found that the state of the evidence at trial concerning the relationship of the appellant and the complainant at the relevant time all points to the conclusion that, at least with regard to the occasion on 27 December 2022, the appellant lacked the requisite intent for the offence of stalking.

95. In my view, had the Magistrate had the additional benefit of the report of Dr White as I have, it is likely to have had a decisive effect on his own reasoning as to the element of intent, at least in relation to the occasion in December 2022.

96. Although it is after the event, I note the Magistrate’s own remarks at the conclusion of the hearing when he first became aware of the existence of an expert report in relation to the appellant’s autism, which the legal representative at the time announced he intended to rely on during sentencing submissions, the Magistrate, when confronted with that report said: This report is deeply concerning because it goes to the heart of your client’s communication and may well have been very relevant to why at hearing he might not have picked up on cues that were obvious to others who do not suffer from the same level of autism that he does. That was why I was concerned about whether or not there should have been a mistrial.

97. For these reasons, I am satisfied that the failure to adduce that evidence at trial has resulted in a miscarriage of justice. As a consequence, the stalking charge (CH 2024/94) at least cannot stand. The position however is different in relation to the assault charge. In dismissing the particular C of the appellant’s complaints, I found that the assault charge was properly proved. The taking of the complainant’s keys against her will in the manner described by the complainant, was sufficient to constitute the offence of assault and there is nothing in the report of Dr White which could have affected that finding.

Conclusion

98. The conviction on the charge of stalking (CH 2024/94) cannot stand. Even if I am wrong in characterising the events of 31 January 2023 as only one “occasion”, in light of my conclusion that the appellant did not have the necessary intent in relation to the Pambula incident, then the result would be the same. That is because the Magistrate relied on the Pambula incident as one of the “occasions”.

Order

99. For these reasons, I make the following orders: (1) The order made by the Magistrate on 21 February 2024 is set aside. (2) The conviction on the stalking count (CH 2024/94) is dismissed. (3) The conviction of the count of aggravated common assault (CH 2024/93) is confirmed. I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 12 September 2025