R v Anders [2009] VSCA 7

1 I also agreed that the appeal against conviction in this matter should be allowed and a verdict of acquittal entered. I did so for the reasons advanced by Redlich JA and wish to associate myself with his exposition of them and the principles involved.

2 Following a trial in the County Court before a judge and jury, the appellant was convicted on one count of stalking contrary to s 21A of the Crimes Act 1958 (Vic) and was sentenced to be imprisoned for nine months. He appealed against his conviction and sentence. During oral argument on appeal, the Director properly conceded that the conviction must be quashed. Accordingly, this Court allowed his appeal against conviction and as the Director did not propose to retry the appellant and did not oppose the entry of an acquittal, made an order to that effect. These are my reasons for joining in those orders.

3 The appellant and one Lance De Jong were presented on one count that they 'at Barwon Heads in the said State between the 24th day of December and 30th day of December stalked LAT.' It was the Crown case that the appellant and De Jong had engaged in a course of conduct amounting to stalking by keeping the complainant, an 11 year old whom they did not know, under surveillance by photographing or appearing to photograph him over a four day period during the Christmas and New Year week in 2005 as he went to or emerged from a toilet block at the Barwon Heads Caravan Park. The Crown case was that the appellant and De Jong were acting in concert or alternatively that the appellant aided and abetted De Jong in the commission of the offence.

4 Before examining those grounds which required that the conviction be quashed, it is desirable to deal with an additional ground which the appellant sought leave to argue at the commencement of the appeal. It was contended that the

complainant's pre-recorded evidence-in-chief had been wrongly admitted at trial as the requirements of s 37B of the Evidence Act 1958 (Vic) were not satisfied. I would grant leave to the appellant to amend his notice of appeal by adding this new ground.

5 Section 37B provides that recorded evidence-in-chief may be introduced in legal proceedings in the following circumstances:

37B(1) This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for

(a) a sexual offence; or

(ab) an offence under Subdivision (8EAA) of Division 1 of part I of the Crimes Act 1958; or

(b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person.

(2) The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with a cognitive impairment or is under the age of 18.

(3) Subject to sub-section (4), the recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if

(a) it is proved that a transcript of it was served personally on the defendant or by post on his or her legal practitioner at least 14 days before the commencement of the hearing of the proceeding; and

(b) it is proved that the defendant and his or her legal practitioner were, in accordance with the regulations, given a reasonable opportunity to listen to and, in the case of a video recording, view the recording; and

(c) at the proceeding the witness

(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and

(ii) is available for cross-examination and re-examination.

(4) The court may rule as inadmissible the whole or any part of the contents of a recording.

6 First, it was contended on appeal that the learned trial judge had erred in either not directing an acquittal or not granting a permanent stay of proceedings as the witness had not adopted the video audio taped evidence (VATE) as his evidence at trial as required by s 37B(3)(c)(i). The complainant had in evidence said that he no longer had any recollection of the events but adopted the statement made at the conclusion of the VATE tape that he had told the interviewer the truth. It was submitted at trial, but only faintly on the appeal, that this did not constitute a proper or effective adoption of the contents of the recording. This submission cannot be sustained. The law permits a witness who has no independent recollection of the events to which they are asked to depose, to give evidence in accordance with, and in reliance upon a statement or record made or adopted by him or her at a time sufficiently contemporaneous with the events when the witness could still recall those events.[1] It is not necessary that the record revive the witness's recollection. The statutory requirement that the witness 'attests to the truthfulness of the contents of the recording' is satisfied if the witness is able to depose at trial, that what he told the 'prescribed' person would have been a truthful account of his or her recollections at the time the record was made.

7 The primary submission advanced under this ground was that a prosecution for the offence of stalking was not a legal proceeding which fell within s 37B(1). Section 21A makes it an offence for a person to stalk another person. Section 21A(2) and (3) provide:

(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;

...

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

with the intention of causing physical or mental harm to the victim 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 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.

8 The appellant initially argued that the offence of 'stalking' did not fall within s 37B(1)(b) as it was not an 'assault on, or injury or a threat of injury to, a person'. The Director submitted that 'stalking' as defined in s 21A(2) encompasses the crime of assault which involves a 'present intention to do violence to another'[2] and thus falls squarely within s 37B(1)(b). This contention was disputed by the appellant. It is unnecessary to further consider this question as it was conceded by the appellant during argument that the word 'injury' in s 37B(1)(b) is wide enough to include 'mental harm' in s 21A(2). But it was maintained that the trial judge could not have been satisfied that the offence of stalking in this case involved 'injury or threat of injury' as the Crown case was that it was stalking by keeping the victim 'under surveillance' (s 21A(2)(f)). Thus it was said that if all the appellant did was to "look at the complainant or use a camera" there could be no 'injury or threat of injury'.

9 This argument must also be rejected. It is to the elements of the offence that one must look to determine whether the VATE procedure is available. In my view s 37B(1)(b) does apply as the offence of stalking 'involves injury or threat of injury.' Section 21A(3) requires either a subjective knowledge by the offender that the relevant conduct would be likely to cause 'physical or mental harm or arouse apprehension or fear for the victim's safety' (s 21A(3)(a)), or an objective element[3] that the offender 'in all of the particular circumstances ought to have understood' that the relevant conduct would have had such an effect and that 'it actually did have that result' (s 21A(3)(b)). In either event an element of the offence of stalking 'involves' at least, 'injury or threat of injury.' The VATE procedure was correctly employed.

10 At trial, the appellant had challenged the complainant's identification of the appellant as one of the persons present on the occasions alleged. The absence of any independent recollection of events by the complainant made cross examination on this issue more difficult. It was submitted on appeal that this forensic handicap in conjunction with the vague descriptions of the offenders provided by the complainant in his VATE tape, increased the necessity for the trial judge to give the jury a warning in accordance with Domican v The Queen.[4] Despite being requested to do so by trial counsel, such a warning was not given. It is not clear from the transcript why the trial judge thought such a direction unnecessary, but as the Director did not advance oral submissions on this issue, it is unnecessary to further address this ground as it was conceded that there were other errors that warranted the setting aside of the conviction.

11 Before turning to the grounds that were critical to the Director's concession that the appellant had not had a trial according to law and which required that his conviction be quashed, a brief summary of the evidence is necessary. On 24 December 2005 during the Christmas holiday period the appellant, his co-accused De Jong, and one Lloyd went to the caravan park in Barwon Heads where they set up their tent on site 203. They brought with them decorative lights, a variety of toys, a laptop and two cameras.

12 During the preceding month of October the co-offenders De Jong and Lloyd visited the caravan park and pre-booked the particular campsite 203, within the grounds. The site was inspected before it was chosen. The particular campsite was located beside the toilet block and bathroom. The appellant, De Jong and Lloyd placed their tent so that it faced the entrance to both the men's and women's toilet block. The complainant was staying at the caravan park with his family. In order for him to go to the bathroom he had to pass by the tent.

13 On the first occasion the complainant was on the way to the toilet and he became aware of the appellant aiming a digital camera at him and apparently taking a photograph. He said he was aware of the co-accused, De Jong being close by. On his return from the toilet, De Jong had a camera with a long lens. He pointed it directly at the complainant, who saw a camera 'flash'. He ran very quickly up a hill to avoid being captured on film.

14 On the second occasion the same victim went into the toilet block, on his bicycle. When he emerged from the toilet, he became aware of De Jong, pointing a camera directly at him, whilst standing in the doorway of the tent. The appellant was also standing very close to the doorway of the tent. The complainant was aware of two camera 'flashes'.

15 The third occasion happened later the same day at approximately 7:00 pm. The complainant, who was now accompanied by his younger brother, J, emerged from the toilet block after having a shower and change of clothes. De Jong was at the time reading a book. When De Jong saw them he dropped his book and proceeded to obtain a camera. He then pointed the camera and focused on them. The appellant was also looking directly at the victim, but he did not have a camera.

16 The fourth incident occurred at 11:00 am on another day. The complainant walked to the toilet and on his return he saw De Jong seated at site 203. He saw the flash of the camera and De Jong looking straight at him with the camera held up to his face.

17 On a later day the complainant's six year old brother, J, needed to go to the toilet. Due to the previous conduct of the appellant and the co-offender in taking photos, J wanted to be escorted to the toilet. His cousin, NE, walked with the complainant and J to the toilet. As they approached the toilet area NE saw De Jong standing at the entrance of his tent holding a camera and looking in her direction. She then saw De Jong point the camera at another little boy aged approximately six years, who happened to be standing nearby. NE confronted De Jong about taking the photograph. De Jong admitted to having taken the photograph and said he would delete it. On NE's return to her campsite she reported it to her uncle.

18 Police were then notified by caravan park staff. De Jong fled on his motor cycle and did not return. Police attended and spoke with the appellant who had remained at the camp site. Police seized a camera bag, containing two cameras and film. The appellant was then evicted from the caravan park. After the appellant packed up the site and his belongings he was picked up by his co-offender Lloyd. Search warrants executed on the premises of the appellant and co-offender located a laptop computer, Canon camera and computer hard drive containing images of children.

19 As the appellant was only once seen to use his camera, the prosecution case depended upon proof that he was acting in concert with or was otherwise complicit with his co accused, De Jong. To advance the hypothesis of concert, the prosecution, over objection by the appellant, was permitted to introduce evidence of photographs taken of other boys at the caravan park over the same period, which were found on exposed 35mm films seized at the camp site occupied by the appellant and De Jong. The prosecution was unable to say who took the photographs or whether both accused were present when the photographs were taken. It conceded that it was more likely that they were taken by De Jong because he used a 35mm camera while the appellant used a digital camera.

20 The trial judge ruled the evidence, described as 'similar fact' evidence, admissible on three bases. First, that it showed a pattern of behaviour making it more likely that both accused were involved in taking photographs of boys from their camp site by the toilet and therefore pointing to concert in respect of the taking of the photographs of the complainant. Second that such evidence tended to confirm the complainant's evidence that photographs were taken of him[5] or at least that a camera was pointed at him by one or both of the accused. Third that such evidence would rebut an anticipated defence that the accused were taking random holiday shots that were not directed to photographing young boys. As to the third of these matters, the learned trial judge appeared to accept that if photographs had been taken of the same boy on more than one occasion, it could constitute stalking by maintaining surveillance. In admitting the evidence, her Honour accepted that such photographs were highly prejudicial, but concluded that the inference that the accused were paedophiles engaged in paedophilic behaviour would in any event arise as a consequence of the direct evidence relating to the charge so that the prejudice flowing from the admission of these additional photographs did not outweigh its probative value.[6]

21 The primary contention of the appellant was that the evidence was inadmissible on any of these bases as there was no evidence that the appellant took any of those photographs or was present when they were taken.[7] The appellant submitted with some force, that an inference that he may have been acting in concert in the taking of those photos could only have been drawn if it was first concluded that the evidence relating to the conduct comprising the alleged stalking showed that the appellant was acting in concert. Thus it was said that the prosecution's purpose for seeking to admit this prejudicial evidence, namely to establish concert between the appellant and De Jong, had no foundation.

22 These submissions were not disputed on appeal by the Director who conceded that the evidence was insufficient to support a finding by the jury that the appellant was involved in the taking of any of those photographs so as to permit any of the forms of reasoning which the trial judge instructed the jury were open to them. In the absence of proof of the appellant's connection to such photos, it was not evidence that made it more likely that the accused was acting in concert in the offence charged nor did it have the capacity to make the complainant's evidence concerning the appellant more probable. Moreover, the Director accepted that even if the evidence permitted a finding that the appellant had been involved in the taking of these photos, it was not evidence which made it more likely that the accused were taking photos of the complainant in circumstances that amounted to surveillance, but rather demonstrated that the taking of photographs was a random event not directed at any particular individual.[8]

23 It is convenient to also address a further contention advanced under a separate ground, that the trial judge erred in her directions to the jury as to the use which the jury could and could not make of the evidence of the taking of these other photographs. The trial judge instructed the jury as to the use of that evidence, in terms similar to those stated by her Honour when ruling the evidence admissible on three bases.[9] It is unnecessary that the lengthy directions on this issue be set out as counsel for the Director correctly acknowledged that they contained a number of errors and would have been very difficult for the jury to follow. The directions were confusing and rested upon the false assumption that there was evidence that enabled the jury to conclude that the appellant had participated in the taking of the other photos and that such evidence rebutted a defence that the photos taken of the complainant were taken at random.

24 The Director also acknowledged on appeal, as did the prosecution during the trial, that such evidence gave rise to the risk of propensity reasoning. On appeal it was conceded that a propensity warning should have been given in relation to this evidence as there was a risk that the jury would engage in impermissible reasoning that because the appellant had participated in taking photos on other occasions, he was the 'kind of person' who was likely to have committed the crime charged.[10] The trial judge did instruct the jury against reasoning that because the appellant had taken other photos, he must have taken photos of the complainant and must therefore be guilty. But this was not a propensity warning and could amount to no more than a caution to the jury against too readily utilising the 'probability reasoning' which the trial judge had told the jury they could employ. On these and the further ground to which I shall now refer, the trial miscarried.

25 Under cover of grounds 1 and 2 it was submitted on the appellant's behalf that the evidence did not support a finding that the appellant had stalked the victim and that the verdict was unsafe. The appellant submitted that the Crown case, at its highest, did not constitute the offence of stalking. At best, it showed that the appellant was a party to photographing boys in the vicinity of the toilets and that co-incidentally, the complainant, who had attended there on more than one occasion was photographed on those occasions. The appellant submitted that the taking of photographs of the complainant when he was at this location on three occasions did not in law constitute 'keeping the victim under surveillance' within the meaning of s 21A(2)(f). This argument invites enquiry as to the confines of the offence of stalking.

26 Both parties on appeal made similar submissions as to the essential elements of the offence of stalking. The offence involves a pattern of conduct evidencing a continuity of purpose in relation to the victim and committed with the proscribed intent.[11] The offender must have the intent to perform the acts associated with and directed towards the victim and which comprise a course of conduct which includes the conduct particularised in s 21A(2) - in this case particular (f) - 'keeping the victim under surveillance'. The offender must also have the subjective intent specified in s 21A(3)(a) or the circumstances must satisfy the objective test set out in s 21A(3)(b). The 'course of conduct' must be directed towards a particular victim with that continuing intent.[12]

27 The appellant submitted that the taking of photographs did not amount to stalking any more than looking at a victim. Such a proposition is too broad. Surveillance includes the use of cameras and other electrical equipment that enables the offender to keep watch over the victim by recording the victim's movements or activity. The elements of the offence may be satisfied where the course of conduct includes photographing the victim. That may constitute the only conduct so long as it occurs on a sufficient number of occasions to be a course of conduct evidencing a continuity of purpose and involving the necessary intent in relation to the victim.

28 Stalking by surveillance may be made out by keeping watch over a location with the intent of observing or recording a specific victim's movements. But there was no focus in the trial upon the requirement that the appellant have the intent during the period alleged to keep the complainant under surveillance. A continuity of purpose in relation to the complainant was essential. It was for this reason that the Director acknowledged that the evidence of photos of other boys taken at the same location during the same period, did not assist the prosecution's task of establishing that the appellant had a specific intent to stalk the complainant. It would not have been enough to prove an intention to photograph young boys at random as they happened to pass by his camp site and that co-incidentally the same boy was photographed on more than one occasion. The jury directions permitted a finding of guilt on this broad basis. Thus the trial, also miscarried on this ground.

29 In view of the Director's indication that he did not intend to retry the appellant, it was unnecessary to further consider whether there was a view of the facts that could have supported the offence charged. For these reasons an entry of acquittal was ordered.

30 I likewise agreed that the appeal against conviction should be allowed and a verdict of acquittal entered. I did so for the reasons stated by Redlich JA.

[1] R v Alexander [1975] VicRp 74; [1975] VR 741; John D Heydon_,_ Cross on Evidence - Australian Edition (7th ed, 2004), [17225].

[2] Henry John Stephen, Stephen's Commentaries on the Laws of England (21st ed, 1950) vol 4, 62.

[3] R v Hoang [2007] VSCA 117; (2007) 16 VR 369, [103]-[104] (Neave JA).

[4] [1992] HCA 13; (1992) 173 CLR 555.

[5] No photographs of the complainant were found.

[6] The probative value of the evidence must outweigh its prejudicial effect R v Best [1998] 4 VR 603; R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412; R v EF [2008] VSCA 213.

[7] An application for the discharge of the jury, resting upon that submission was rejected by the trial judge. T391-424.

[8] If the evidence did constitute 'similar fact evidence' - a matter which itself is not free from doubt - a direction may also have been required that such evidence be proved beyond reasonable doubt. R v Sadler [2008] VSCA 198; R v Dupas [No 2] [2005] VSCA 212; (2005) 12 VR 601.

[9] See [20] above.

[10] R v Best [1998] 4 VR 603; R v Mark [2006] VSCA 251; R v EF [2008] VSCA 213.

[11] Berlyn v Brouskos [2002] VSC 377; (2002) 134 A Crim R 111 [24] (Nettle J).

[12] R v Maccia [2003] VSC 384, [18] (Gillard J).