R v Hallett [1997] QCA 418

(a) the first person engages in a course of conduct involving doing a concerning act on at least two separate occasions to another person or other persons (whether the second person, another or others); and

(b) the first persons intends that the second person be aware that the course of conduct is directed at the second person, even if the concerning acts or particular concerning acts are done to, or to the property of, a person other than the second person; and

(c) the second person is aware that the course of conduct is directed at the second person; and

(d) the course of conduct would cause a reasonable person in the second person's circumstances to believe that an offensive act (a "concerning offensive act") is likely to happen."

For purposes of the section the term "concerning act" is defined in subsection (7) as follows

" "Concerning act" means any of the following acts -

(a) Following, loitering near, watching or approaching another person;

(b) Telephoning or otherwise contacting another person;

(c) Loitering near, watching, approaching or entering a place where another person lives, works or visits;

(d) Interfering with property in the possession of another person;

(e) Leaving offensive material where it will be found by, given to or brought to the attention of, another person;

(f) Giving offensive material to another person, directly or indirectly;

(g) An act of harassment, intimidation or threat against another person;

(h) An unlawful act committed against the person or property of another person."

There are other definitions included in the section but they are not of material importance here.

Subsection (6) provides for a maximum penalty of imprisonment of 5 years if any one of three circumstances of aggravation are established; otherwise the maximum penalty is 3 years' imprisonment. There was a circumstance of aggravation alleged in this indictment, namely that there was a threat to use unlawful violence against the "second person", namely Vanessa Sylvia Tomkinson.

The first ground of appeal alleges that the learned trial judge erred in admitting into evidence oral evidence of observations by police officers of "equipment" located in the appellant's motor vehicle when he was apprehended. Objection was also made to the admission into evidence of those items of "equipment". On the evening of 13-14 December 1996 Tomkinson, accompanied by a police officer, drove around Gladstone in her motor vehicle. A green Magna motor vehicle, being driven by the appellant, was observed to be following or in the vicinity of Tomkinson's vehicle on a number of occasions. At about 1.45am on 14 December police officers intercepted that green Magna and apprehended the appellant. The green Magna had been hired by the appellant on 13 December; it was not his own personal vehicle.

Police officers gave evidence that the appellant, when apprehended, threw some latex gloves from the driver's seat to the front passenger floor of the car. They were taken possession of by the police and admitted into evidence. When the car was examined two bags were located which contained two long-bladed knives, a pair of knuckle dusters, two spanners, a paintbrush, a tin of paint stripper, a "Gerber" multipurpose tool, and two cans of mace. Those items were also taken into police custody and admitted as exhibits at the trial.

At the outset of the trial counsel for the appellant objected to the admissibility of evidence from the police officers as to the finding of those items of equipment, and also objection was taken to the admission of those items into evidence. It was contended that there was no evidence that any of those items were ever used in the commission of an offence. It was also asserted that the presence of those items in the vehicle was of no probative value, and that the prejudicial effect outweighed any probative value they may have.

It was conceded by the prosecutor at the trial that it was not alleged that any of those items constituted a "weapon" and that there was no alleged circumstance of aggravation that a "weapon" within the meaning of the Weapons Act 1990 was used in the commission of the offence.

The case against the appellant was largely a circumstantial one, and one of the circumstances relied on by the prosecution was the appellant's possession of those items of equipment, particularly their presence in the hire car on the evening in question when it was observed on a number of occasions in the vicinity of Tomkinson. The learned trial judge admitted the evidence objected to as part of the circumstantial case against the appellant.

The submission by counsel for the appellant in this court was that as the prosecution did not charge as a circumstance of aggravation that the appellant had possession of a weapon within the meaning of the Weapons Act the evidence was wrongly admitted.

No particulars of the "concerning acts" relied on by the prosecution were sought or given. The prosecution relied on each of paragraphs (a) to (h) of the definition referred to above. It is clear that the prosecution was alleging that, inter alia, the appellant interfered on one or more occasions with the motor vehicle owned by Tomkinson and the presence of the tools in the appellant's motor vehicle when apprehended was relied on as a circumstance supporting the drawing of the inference that it was the appellant who was responsible for that interference.

In my view the evidence objected to was rightly admitted. It was certainly probative of the appellant's intention in following Tomkinson on the night of 13-14 December if the jury were satisfied that in fact he was following her around the Gladstone area. He had obtained possession of the motor vehicle on 13 December and in consequence the items in question must have been placed in the vehicle within about twelve hours of the appellant's apprehension. In the absence of what the jury considered to be a satisfactory explanation of their presence, the jury would be entitled to draw the inference that the presence of those items in the vehicle was associated with the appellant's conduct in following Tomkinson on the night in question.

There is no substance in the first ground of appeal.

The second ground of appeal also alleges that evidence was wrongly admitted. This ground is concerned with the evidence of Tamara Wilkinson. She was a friend of Tomkinson, and also gave evidence that she knew the appellant. Details of her association with the appellant were contained in her evidence. She gave evidence that in November 1996 she received a telephone call and identified the caller as the appellant. Her evidence was that in the course of that telephone conversation the appellant made a threat about Tomkinson: "Tell her she's dead". That telephone conversation was relied on by the crown as a "concerning act". The point taken by the appellant was that the voice identification evidence was so unreliable that the evidence of the phone conversation should have been excluded in the exercise of the judge's discretion.

The prosecution submitted, and this was accepted by the learned trial judge, that a warning in accordance with Bulejcik v. The Queen [1996] HCA 50; (1995) 185 CLR 375 should be given to the jury and that if that was done the evidence was probative and admissible. The evidence was admitted.

When called Wilkinson said that the caller was the appellant; she said she could tell "Because I know his voice from speaking so many times on the phone with him." She maintained she was sure it was him: "A hundred percent". She was subject to a detailed cross-examination as to the voice identification, but maintained her stance that it was the appellant's voice.

Counsel for the appellant on the hearing of the appeal conceded that he could not object to the directions given by the learned trial judge in his summing up with respect to the evidence of Wilkinson. Those directions contained a warning in accordance with Bulejcik.

The threat in the phone call to Wilkinson was only one of the concerning acts relied on by the prosecution, but it was of significance because of the circumstance of aggravation alleged in the indictment. The jury was entitled to place this particular incident in the context of the overall conduct of the appellant as they assessed it and at the end of the day the jury could well have been satisfied beyond reasonable doubt that the call to Wilkinson was made by the appellant.

In the circumstances the evidence was rightly admitted and there is no substance in the second ground.

The third ground of appeal alleges that the learned trial judge wrongly excluded some evidence which the defence wished to lead at the trial. The evidence in question would have come from Melissa Pendreigh. Under cross-examination Tomkinson admitted that she knew Pendreigh and had some conversation with her after the appellant had been arrested. In the course of cross-examination the following passage appeared - Wayne is the appellant:

"Q. And do you also remember saying to her after Wayne had been arrested that when she went to visit Helen in your presence you told her that you and the police had set Wayne up?-

A. I don't remember her ever coming to visit once she started seeing Wayne. There was more to what I said to her in the nightclub as well.

A. Yes, well, perhaps my friend can fix that up if he wants to. But are you saying that you didn't ever say to her that you and the police had set Wayne up?-

The defence proposed calling Pendreigh to say that in the course of a discussion Tomkinson told her that she and the police had set up the appellant. Counsel for the accused submitted to the learned trial judge that the evidence from Pendreigh was relevant to a fact in issue and not merely credit of Tomkinson. Primarily counsel contended that the evidence was admissible being of a prior inconsistent statement admissible pursuant to the provisions of the Evidence Act.

In the course of argument it was pointed out that a police officer had accompanied Tomkinson on the evening of 13-14 December with a view to establishing whether or not she was being followed by the appellant. That, on the prosecution case, proved to be the fact, and in a sense it could legitimately be said that a trap had been set for the appellant. In those circumstances, even if Tomkinson made the alleged statement, which she denied, it was not necessarily contradictory of her evidence at the trial.

The ruling of the learned trial judge is stated in the following passage:

"Well, Mr Clutterbuck, for the reasons expressed, which have been recorded, you are entitled to take advantage of s.18 and so on in the Evidence Act if a prior inconsistent statement is relevant to the subject matter of the proceeding. Because the events of the police surveillance operation and the involvement of the police generally are not controversial, it seems to me that anything Melissa might say wouldn't advance your client's interests. If I thought they would, I would let you call her as a witness."

That appears to have been accepted by counsel for the accused; no further attempt was made to lead the evidence of Pendreigh.

Before this court it was contended that whether or not the statement allegedly made to Pendreigh was inconsistent with Tomkinson's evidence was a matter for the jury, and that the evidence of Pendreigh should have been admitted to allow them to make a decision on the point.

In any event the learned trial judge had a discretion whether or not to admit evidence pursuant to s.18, and that is a discretion which has to be carefully considered particularly in a criminal trial. Though the learned trial judge did not expressly base his final ruling on the exercise of discretion, it is clear from the passages leading up to that ruling that he had directed his mind to a number of issues which would ordinarily call for the evidence to be rejected in the exercise of discretion.

Finally, it is clear that if the learned trial judge was wrong in rejecting the evidence there was no substantial miscarriage of justice. Tomkinson was cross-examined at some length on the point and the jury had that material to consider, particularly with respect to the credit worthiness of her evidence.

Counsel for the appellant abandoned grounds 5 and 6 as stated in the notice of appeal.

That leaves for consideration the application for leave to appeal against sentence. The first point made on behalf of the appellant is that the learned trial judge took into account matters and circumstances not alleged as aggravating circumstances on the indictment. In the course of his sentencing remarks the learned judge said:

"I accept that the jury's verdict carries with it a finding that you made, in particular, many, many telephone calls to herself and her friends and that you damaged her vehicle, including the cutting of the brake hose, itself a highly dangerous thing which could have resulted in death or injury to her or to someone else on the roads."

It is correct, as noted at the outset, that the only circumstance of aggravation alleged on the indictment was that the appellant threatened to use unlawful violence. The jury found that circumstance proven beyond reasonable doubt. However, the point taken on behalf of the appellant is that there was no circumstance of aggravation alleged with respect to the damage to the complainant's car. That, in my view, is beside the point. As already noted the prosecution clearly relied throughout the trial on interference with the complainant's car as a "concerning act" (s.359A(7)(d)). In all the circumstances the learned trial judge was entitled to conclude that the jury's verdict meant that the jury had found those particular concerning acts established beyond reasonable doubt. Ultimately counsel for the appellant did not press that particular ground before this court.

It remains to consider whether or not the sentence was manifestly excessive. The appellant was aged 27 at the date of sentence and had no previous convictions. He was a divorcee who had been in a de facto relationship with Tomkinson for a period before they split up. In his favour the appellant had a good employment record.

Having regard to what is in the record the learned sentencing judge was justified in considering that the appellant showed no remorse, and had embarked on a calculated and persistent campaign of intimidation against the complainant. Some of the conduct complained of, particularly that involving interference with the car, was serious and could well have had disastrous consequences for the complainant and other road users. The effects of the offence upon the complainant were substantial.

This court was referred to a number of cases involving a sentence for the offence of stalking. It is obvious from a mere consideration of what constitutes the offence that instances of stalking can range from a minor, or most trivial, offence to one requiring severe punishment. That explains why one finds sentences for the offence ranging from non-custodial to 4 years' imprisonment (where the conduct was described as dangerous obsessional jealousy).

Here a custodial sentence was called for and in all the circumstances it cannot be said in my view that the sentence imposed was manifestly excessive.

The appeal should be dismissed and the application for leave to appeal against sentence refused.

I agree with the reasons of Williams J and the orders proposed.