Longfield v Glover [2005] ACTSC 25

Supreme Court of the ACT|2005-04-05|Before: Connolly J

1. This is an appeal brought by the appellant against his conviction for the offence of stalking, imposed by Chief Magistrate Cahill on 29 September 2004. The appellant was charged with one count of stalking, contrary to s 35 of the Crimes Act 1900 (the Crimes Act). The acts said to give rise to the offence were a series of telephone calls and letters to his former partner, which were made or sent between the periods of 16 April 2004 and 22 June 2004.

2. The complainant had been in a relationship with the appellant, and there are two sons of the relationship, one aged two and the other aged five. The appellant maintains that he is still the partner of the complainant, but she has made it clear that the relationship has ended. On 4 September 2003, which she maintains was after the relationship had ended, the appellant broke into her premises, at a time when there was a domestic violence order in place which prohibited the appellant from contacting the complainant. This action resulted in his being convicted of the offences of assault, burglary and contravene a protection order. In February 2004 he was sentenced to six months imprisonment in respect of the burglary and contravene protection charges, to date from 10 September 2003, when he had been taken into custody. He was given a suspended sentence of six months imprisonment in respect of the assault charge, subject to a two year good behaviour recognizance, to date from his release from the remand centre in respect of the earlier sentences on 16 April 2004. Arrangements were made for supervision by Queensland authorities, and he left the Australian Capital Territory upon his release. The letters and phone calls were all made from Queensland.

3. The appellant argued that his conduct from Queensland could not amount to stalking in the Australian Capital Territory, but it seems to me that the Crimes Act can cover conduct in another jurisdiction directed at a person in the Australian Capital Territory.

4. The learned Chief Magistrate had evidence before him that, despite the complainant telling the appellant not to call her on 16 April 2004, he continued to ring her at work, at home, and on a mobile telephone (AB 33 [40]-AB 34 [10]). During an early call, she said that the appellant said to her, "Ask your friend Rachael what the name Tim West means to her", and it was her evidence that that person was known to her as "a junkie that lives in Civic and that does break and enters" (AB 34-35). She took this as a threat.

5. The complainant gave evidence that the telephone calls persisted, that the appellant said, "I control your life", and that he continued making calls to her, and also calls to her family law solicitor, her father, and the older child's school.

6. There was in evidence a large number of letters that had been sent by the appellant between 16 April and 22 June 2004. There are nearly two hundred pages of letters and attached photocopied material, which are reproduced in the appeal book at pages 267-399, 399-421, 426-445 and 458-459. Some of these were directed to his former partner, but the majority were directed to the children at her address. Neither child could read, and I am satisfied, as was the learned Chief Magistrate, that these were clearly intended to be read by the complainant. The letters are extensive, but some contain material that caused alarm to the complainant, including one which contains death and funeral notices from The Courier Mail (AB 297-299). One letter includes a plan of his intended recovery of possessions from the complainant, which from the letter can clearly be seen to refer to the children, and includes references to a police roadblock, police snipers, riot squads, dog squads and helicopters.

7. After hearing submissions from the appellant and the Crown, I dismissed this appeal on 17 February 2005. I said at the time that, given the broad definition of harassment in s 35 of the Crimes Act, the learned Chief Magistrate could not be said to have erred in finding the charge made out. In his ex tempore reasons for decision of 22 October 2004, the learned Chief Magistrate said (AB 2 [40]) -

The focus, in my view, however is on the harassment. There are parts of the correspondence, the phone calls, are quite capable and can only be interpreted as causing apprehension and fear of harm and there are a couple of spectacular examples of that.

But principally, although the defence and Mr Longfield himself, both on oath and in submission, have said to me all he was doing was endeavouring to get in contact with his former partner in respect of his two children, two young children, and that was his whole reason for doing these things and it wasn't an intent to either harass her or to cause apprehension or harm, one has to look at the objectives and match up the objective circumstances of just continuous and almost obsessive harassment.

8. There can be no doubt that the Legislative Assembly, in enacting the offence of stalking, has created an offence of considerable breadth capable, it seems to me, of covering the acts complained of in this offence. Section 35 of the Crimes Act provides -

35 Stalking

(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) imprisonment for 5 years if -

(i) the offence involved a contravention of an injunction or other order made by a court; or

(ii) the offender was in possession of an offensive weapon; or;

(b) imprisonment for 2 years in any other case.

(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.

(3) However, this section does not apply to reasonable conduct engaged in by a person as part of the person's employment if it is a function of the person's employment to engage in the conduct and the conduct is not otherwise unlawful.

(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.

(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.

For this section:

harm means physical harm, harm to mental health, or disease, whether permanent or temporary.

harm to mental health includes psychological harm.

physical harm includes unconsciousness, pain, disfigurement and physical contact that might reasonably be objected to in the circumstances, whether or not there was an awareness of the contact at the time.

9. There was no contest at the hearing or on the appeal that the appellant had made the telephone calls or sent the letters. He did seek to argue before me that because he was the author of the letters the Copyright Act 1968 (Cth) had the effect that no one else could use the letters and, as I took the argument, the letters were inadmissible. This argument is clearly untenable, as I said to the appellant during his oral submissions, such an argument would mean that a ransom note or death threat would be inadmissible in a criminal proceeding because of the author's copyright claim. I am quite satisfied that the letters were properly admissible in these proceedings.

10. It seems to me that the learned Chief Magistrate was quite correct to conclude that the persistent telephone calls and letters, after the complainant made it clear that she did not want contact with the appellant, amounted to harassment. Harassment is not defined in the Crimes Act, but the ordinary plain meaning of the word, as defined in the Macquarie Dictionary (2nd ed) is -

to disturb persistently; torment as with troubles, cares etc.

This is consistent with a definition adopted by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 in the context of Trade Practices legislation where he said at 485 -

The word "harassment" in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word "harassment" means in the present context persistent disturbance or torment.

11. It seems to me that the learned Chief Magistrate was clearly correct in concluding that the appellant's conduct amounted to harassment of the complainant so as to bring the conduct within the terms of the offence of stalking. He had the evidence of the telephone calls and the letters. He had the evidence of the complainant that there had been a previous act of violence in relation to the breaking into the complainant's home, and that the appellant had been convicted of this offence and dealt with in the Magistrates Court. The learned Chief Magistrate said at 3 [10] of his ex tempore reasons -

And in my view, Mr Longfield presents as someone with a total obsession in this question of his wife and children and his role in that relationship and particularly his role with his children, and whilst he in his own mind might simply say he's doing it purely for his children, the number of calls made in a short space of time, in a background where he knows that already there are protection orders in place that may or may not be breached, in my view can only lead to one conclusion, that whatever he might pretend his intention is, it is to cause harassment at least and, in my view, there are certain statements there that could also be interpreted as possibly causing an apprehension or fear.

It seems to me that there is no error in these remarks.

12. In the course of his submissions arguing that he did not have any intent to harass, the appellant stated (T 12) -

I mean, I could go and rent a house 100 metres away from her and it'd be legal, and have binoculars and have a laser driven listening device, and I can do that, but I don't do that.

13. I made it clear to the appellant that such conduct would be clearly criminal, but these remarks do cause concern and reinforce the Chief Magistrate's remarks that the appellant remains obsessed with the complainant. This concern was identified in the pre-sentence report.

14. I was satisfied that the appeal against conviction should be dismissed, as I indicated on 17 February 2005. The appellant did not appeal against the sentence of six months imprisonment, and it seems to me that the Chief Magistrate had little option but to impose an immediate custodial sentence given that these offences began on the day he had been released from the remand centre in respect of an earlier series of offences in relation to the complainant.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the respondent: ACT Director of Public Prosecutions

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