R v NO [2018] ACTSC 30

A verdict of guilty is entered on the charge that between 17 July 2015 and 31 August 2015 NO stalked the complainant with intent to harass her.

CRIMINAL LAW - Verdict - accused is guilty of stalking.

Crimes Act 1900 (ACT), ss 26, 35, 35(1), 35(1)(c), 35(2), 35(2)(a), 35(2)(d), 35(2)(f), 35(4)

Magistrates Court Act 1930, s 90B

Supreme Court Act 1933, ss 68D, 68D(2), 68E(1)(b)

SCC 31 of 2017; SCC 37 of 2017

1. In September 2017, NO was tried and found guilty by a jury of three offences, being sexual assault in the second degree; sexual intercourse without consent; and an act of indecency without consent.

2. Two other charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT), being a charge of stalking (CC16/12644) contrary to s 35 of the Crimes Act 1900 (ACT) and a charge of common assault (CC16/9597) contrary to s 26 of the Crimes Act.

3. I considered for the purposes of s 68D(2) of the Supreme Court Act that it would be in the interests of justice to deal with those transferred charges in the proceedings following NO's trial.

4. The common assault charge was a back-up charge to a charge of assault occasioning actual bodily harm, to which the jury returned a verdict of not guilty. The Crown withdrew that back-up charge, and accordingly, I shall dismiss that charge when sentencing NO.

5. The stalking charge was maintained. I considered for the purposes of s 68E(1)(b) of the Supreme Court Act that it was in the interests of justice to deal with the stalking charge on the basis of evidence given during the trial.

6. The stalking charge arising under s 35 of the Crimes Act covers a variety of behaviour not necessarily recognised as stalking in common usage; accordingly, it is useful to set out the relevant provisions, as follows:

(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

(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:

(b) loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;

(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

(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.

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.

7. NO was charged that between 17 July 2015 and 31 August 2015 he stalked the complainant with intent to harass her.

8. The matters relied on by the Crown to establish the stalking charge were in general terms that during the period specified NO:

(a) had tracked her whereabouts, including her presence at Mooseheads nightclub, by activating the location service on her mobile phone without her consent;

(b) had sent multiple messages and made multiple phone calls to her despite her requests to him not to contact her; and

(c) had accessed her emails without her consent.

9. The charges dealt with in the trial, and the stalking charge, arose out of a relationship between NO and the complainant that ran from early 2010 until mid-2015.

10. The following material reflects evidence given at NO's trial.

11. NO met the complainant in early 2010, and soon after, the pair started a sexual relationship. That relationship did not initially have any of the other common incidents of a romantic relationship, such as shared non-sexual activities or introductions to the parties' friends or family. The evidence was that in the early stages of this relationship, NO was also involved in what he says was a serious relationship with another woman.

12. The jury found NO guilty of a sexual assault in the second degree and a charge of sexual intercourse without consent, both committed one evening in February 2011.

13. Despite the conduct found to constitute those offences, the relationship continued, and in late 2012 the complainant gave birth to a daughter whom NO, after DNA testing, accepted as his child. In 2013 the complainant moved into NO's house, and in early 2015 a son was born to the complainant and NO.

14. The relationship was tumultuous, with accusations of infidelity and significant disagreement about the level of support NO provided the complainant in caring for the children and the household. The complainant gave evidence that she found NO to be controlling and that she was fearful of him.

15. The events giving rise to the stalking charge occurred in July 2015.

16. The relationship between NO and the complainant had become increasingly strained in the first half of 2015, and the complainant began to consider leaving NO. After spending several days in hospital with post-partum complications that developed when her second child was about six weeks old, the complainant and the two children spent some time staying with one of her sisters before they returned to live with NO.

17. In evidence at the trial were two sets of records extracted from the mobile phones used by the complainant and NO during the relevant period in July and August 2015.

18. Trial Exhibit H was a table showing calls and messages (both SMSs - text messages - and MMSs, which I understand involve the sending of images or other recordings rather than text) to or from NO's mobile phone. Pages 1-10 of the exhibit showed calls between NO and the complainant in 2015, specifically between 11 July and 18 July 2015 (finishing at 8.43 pm on that day). Pages 11-23 showed calls made from NO's phone to the complainant's phone from 6.12 am on 19 July to 10.46 pm on 25 July.

19. Trial Exhibit G was a table summarising mobile phone exchanges between the complainant and NO, and NO and the complainant's mother, in the period from 11.51 am on 19 July 2015 until 2 August 2015 at 11.13 am. That table showed the duration of phone calls and the content of text messages, but only the sending of MMS messages (not the images). I note that the table shows the time as GMT, and it is necessary to add 10 hours to each time specified in the table to get the AEST equivalent (times referred to in this judgment have been adjusted accordingly)

20. In analysing these exhibits below, I have referred to "short calls" and "longer calls"; the short calls are ones shown as lasting no more than 5 seconds. The evidence was not clear whether a call shown as lasting for only a few seconds was connected but not answered or answered but very quickly terminated.

21. The was evidence (trial Exhibit E), consisting of screen shots from the message screen of the complainant's phone, which showed notifications on that screen from a date in March 2015 in the form "[NO] stopped sharing location with you" and "You started sharing location with [NO]", in each case with a date and time. There was no similar evidence relating to the period relevant to the stalking charge (that is, July 2015).

22. The complainant gave evidence that on 16 July, NO questioned their two-year-old daughter about the family's whereabouts that day in a manner that the complainant described as interrogation.

23. After NO put their daughter to bed, he began to question the complainant as to where she had been that day. Presumably because of some discrepancy between her account and that of the daughter, NO said that either she or their daughter was lying to him. NO also accused the complainant of cheating on him, to which the complainant responded by slapping him. After further conversation, NO asked the complainant for the password to her phone, which she provided; she then saw him opening her phone and looking at Facebook as well as at her images and text messages.

24. The next day, 17 July, the complainant and NO together took their son to the doctor. After that, NO went to a lunch and the complainant had a haircut. The complainant then sent NO a photo of her new haircut. He responded with a negative comment about her haircut, and then told her he didn't care where she stayed or what she did. The complainant then took her children with her to stay the night with her sister. The complainant's mother was also staying at the sister's house that night, and offered to look after the children so that the complainant could go out in Civic with her sister and niece.

25. NO gave evidence of events after the visit to the doctor, as follows:

And then did you have a function on after that?---Yes.

And what was the function?---It was a sportsman's lunch - sportsman's lunch for the Vikings.

What did you anticipate happening at the function? Was it a lunch?---It was an event that I'd previously booked for clients but didn't work out. It was on a Friday and most of them were interstate so I ended up taking a bunch of subcontractors there.

And how long did you stay out for?---'Til about midnight.

Were you drinking anything?---Yes.

How much?---We'd started at lunch. By midnight I was, yeah, intoxicated.

During the course of that did you have any conversation with [the complainant]?---During the day there was a bit of back and forth. In the evening, early evening, there was a little bit and then I don't think much contact 'til when I got home.

During the early evening what was the contact?---I think there was contact about a haircut and then there was contact about me not caring, "You need to do whatever you want," sort of thing 'cause she was going to stay with her family a bit longer. I said, "No worries. I don't care, do what you want." And, yeah, that would've been it.

Now, you said you stayed out to about midnight. Where did you go at midnight?---Went home.

And what did you notice when you got home?---No family, some stuff was gone.

And what did you think had happened?---Like that she'd taken off with my children again.

So what did you do?---Started ringing her.

Why?---Find out where the kids are, find out where she is.

How often did you ring her?---I would've been ringing flat out, I would've thought.

Did you send text messages as well?---Yeah, definitely.

Saying what?---"Where are you? Where are the kids? What the hell is going on?"

After a period of time did you go somewhere?---Yeah, after a period of time I headed back out to the city.

Why?---My family was gone. I was heading out.

Why?---Don't know. I was just enjoying myself before I got home, my family was all gone, I'm getting nothing from her so I headed back out to meet my mates.

26. As well as calling the complainant, NO contacted her sister and niece, and one of them responded to NO telling him, untruthfully and perhaps unhelpfully, that the complainant was in Sydney.

When you got into the city at some stage did you see [the complainant]?---When I went into Mooseheads I saw [the complainant, her sister and her niece].

Did you track them?---Definitely not.

Use her location services to track her?---Definitely not.

Had you previously with her used location services?---Yes, we did.

Whose idea was that?---That was [the complainant's].

And how did that all come about?---There was an update that came on the phones. I remember being at a mate's place and me saying, "Geez, you see this thing that's come out? My phone has got me doing this," and them laughing at me saying, "She can watch your every move."

By that evening had the location services - had that - was it still on or was it off?---I've no idea.

When you saw [the complainant] at Mooseheads what did you do?---I went up and talked to her.

Why?---She'd just run off with my children and she's out in the city. Where are the kids? What's going on?

What was your state by that stage?---I was, yeah, fairly intoxicated.

When you spoke to her what did you say?---I would have been asking those questions, "What's going on? Let's work through this. Who's [got] the kids?"

What did [the complainant] say to you?---I don't remember.

At some stage did a bouncer approach you?---Yeah. [Her sister] said something to the bouncer and the bouncer started to walk towards me and I just went, "Yep, no worries," and turned around and walked out.

Now, did you continue to try and call [the complainant] after that?---Yeah, I would've thought so.

Why?---To work out what's going on. "Where are my children?"

28. The complainant gave evidence that, at some point after her sister or niece responded to NO's contacts, she was standing outside Mooseheads, and turned around to see NO standing a foot behind her. The complainant told NO to leave her alone and that their relationship was over. She started to go into Mooseheads with the other women but NO followed them until he was approached by a security guard, and left the area.

29. The first communication on 18 July was sent at 12.07 am (while the complainant was in Civic and apparently after NO had arrived home to an empty house). It was a message from NO, which was followed in the next hour by 4 more messages and 12 short calls from NO to the complainant. At 1.08 am, 21 seconds after the last message, the complainant sent a message, and 4 more messages were quickly exchanged in the next 2 minutes. Then there were 5 more messages from NO over less than 80 seconds, 2 from the complainant, then 11 more messages from NO in the next 30 minutes, before the complainant again responded with a single message at 1.43 am. Between 1.45 am and 2.28 am, NO sent 13 more messages and made 2 short calls to the complainant. During that period the complainant responded with 3 messages.

30. There was then a break in communications until 8.52 am, when NO made a short call to the complainant. Before the complainant responded 7 minutes later with a message, he had made 5 more calls (including 2 short ones) and sent 2 messages.

31. From 8.59 am until 8.43 pm, NO made a total of 97 attempts at communication (44 text messages, 41 short calls, and 12 longer calls. During the same period, the complainant sent him 10 text messages, and made one short call and 3 longer calls.

32. Next day, 19 July, the complainant took the children and went to her mother's place on the NSW South Coast.

33. NO resumed his attempts to contact the complainant at 6.12 am, sending 9 messages and making one short phone call between then and 11.51 am.

34. From 11.51 am until 9.40 pm on 19 July, NO sent 45 more messages and made 6 more short phone calls to the complainant.

35. During the same period, the complainant sent 20 messages (all responding to NO's messages) but made no calls to NO.

36. The complainant gave evidence that on 19 July she noticed that her phone location services were turned on and were shared with NO.

37. She said that she and NO had shared their locations in earlier times, but that she had deactivated that feature on her phone a few months before July. She said that she believed NO had turned on the location services on her phone.

38. NO denied that he had turned on location services on the complainant's phone in July, and said that he turned his location services on, rather than hers, as a demonstration of trust and openness, and a desire to repair the relationship.

39. The complainant's accusation, and NO's denials, are recorded in an exchange of text messages starting at 6.18 pm on 19 July, as follows:

You are tracking my location without my permission!!

How I'm opening my life completely transparent to help u through this I'm not looking for anyone else

When is [our daughter] ringing I'll put her on video chat so she can see her father that loves her

I turned it off as soon as I saw it! I'm not communicating with you anymore. You have spoken to [our daughter] this afternoon and she will call you between 6 and 6:30pm tomorrow evening. Stop contacting me!

40. From her mother's house, the complainant called the Woden Police Station and reported that she had received 60 phone calls from NO and that she was concerned for her welfare and the welfare of their children. She reported that NO could be violent and that the settings on her phone had been changed so that NO knew where she was. This report was passed on to a constable from the station, who called the complainant back and suggested that the complainant come in to make a statement.

41. The complainant and the children stayed at the South Coast for a few weeks. While the complainant and her children were there, NO continued to try to contact her. He gave evidence that at this time he did not know where the children were.

42. From 20 July NO continued the barrage of messages, although the complainant responded to more of them. It was clear from the messages that the children were with her, that she was at the South Coast, and that she was at her mother's house. From time to time the complainant repeated her request to NO to leave her alone.

43. On 30 July 2015, a firm of family lawyers wrote to the complainant on behalf of NO asking that the complainant return with the children to live in Canberra. The letter sought a response by close of business on 31 July 2015, and was emailed to the complainant on 30 July.

44. On 31 July 2015, when she returned to Canberra, the complainant made a statement to police, which included details about the matters dealt with at NO's trial.

45. The complainant gave evidence that on 3 August 2015, NO had contacted the complainant in relation to Family Court proceedings by emailing her at an email address with a "tpg" domain, an address that she had only recently obtained. In evidence-in-chief, the complainant was shown Exhibit F, consisting of an email from TPG Internet to the complainant dated 29 July 2015 and an email from NO to the complainant, sent to both a Gmail address and a TPG address; she gave the following evidence:

Now, with that first document, can you tell us what that is? That first email?---This first email is an email I received when setting up wi-fi at my mother's house in [NSW]..

And I take it, then, that TPG was the provider. Is that right?---That's correct. Yes.

And as part of setting up that TPG wi-fi, did they provide you with an email account?---They did. Yes.

And is that the email that we can see at the bottom of the page where it's got your customer name, address, and then username and email address?---That's correct.

And when did you set up that email?---Shortly after being at my mother's house. At that point in time, we intended to stay there, and I wanted the Internet set up for [our daughter] so that she could watch her kids' shows online.

Who did you tell about having that email address?---Nobody.

If you could then turn to the next page. Can you tell us what that's an email about?---This is an email from [NO] sent to my Gmail account and to my new TPG account in regards

Had you told - sorry. Had you told [NO] about that email, that TPG email? ---No.

Did you know if [NO] had access to your Gmail account?---No.

46. NO denied that he had obtained this email address by accessing the complainant's Gmail account. He gave evidence in cross-examination as follows:

Do you see there that that's an email from you to [complainant]?---Yep.

And you've CCed this email address: [complainant]@tpg.com.au?---That is correct.

And we know from the page before that she only established the account on 29 July?---That is correct.

So you couldn't help but open that email to see that address. You had to, didn't you?---What happens on the home computer is the emails come up automatically for her Gmail account. So when she's run off with my children she actually asked me to set up the TPG - transfer the one from our - the home that we lived in to the coast house and then when I'm on hopping on my computer it pops up saying that she's connected this one. So when I was trying to contact her to find out where she is with my children and to organise access, I sent it to any email address that I had of hers.

So you opened her email to look for an email address?---That is incorrect.

Well, it's a fair way down the page isn't it to find that email address? You must have looked through that email?---It came up on the screen.

47. As noted, the Crown relied on NO's alleged activation of location services on the complainant's phone without her consent, his communications to her between 17 July and 31 August 2015, and his alleged accessing of her Gmail account, to make out the stalking charge.

48. Activating location services on the complainant's phone could fall within the s 35(2) list of actions that (if there are two or more occasions of them) may permit a finding of stalking, in that it could amount to interfering with the complainant's property as mentioned in s 35(2)(d).

49. There was evidence that the location services function on the complainant's mobile phone had been activated at some point shortly before 19 July 2015 so as to convey information about her location to NO's phone (at [36] to [39] above).

50. There was also unchallenged evidence that several days earlier, on 16 July, NO had been in possession of the complainant's phone, and that she had given him the password (at [23] above).

Did you [...] use her location service to track her? Definitely not".

...

Did you turn on her location so that you could see where she was? No, I can't do that.

52. There was evidence that, once the service is activated, this is visible on the message screen, and evidence that the complainant had looked at the message screen on many occasions from 16 July until 19 July; the fact that she only noticed the activation on 19 July could indicate that it had only been activated shortly before that.

53. There was no clear evidence before me about how location services involving a particular phone can be activated (and how they cannot be activated). In particular, there was no evidence about whether location services could have been activated by the complainant accidentally, and no evidence that location services could be activated remotely from another phone.

54. NO's appearance at Mooseheads would be explained if he had been tracking the complainant, but that is not the only explanation. There are certainly other nightclubs in Civic, possibly many other nightclubs, but it does not seem to me to be particularly unlikely that people who are "out" in Civic around midnight might, without any help from location tracking devices, come across people they know in the area of the Mooseheads entrance.

55. I am not satisfied beyond reasonable doubt that NO activated location services on the complainant's phone without her knowledge or consent.

56. I note in passing that NO's actions at Mooseheads clearly constituted approaching the complainant (referred to in s 35(2)(a)). Although not in my view significant in determining the allegation relating to location services, that approach is relevant in determining NO's state of mind, given that on his own evidence (at [25] above), by the time he walked off, he would have been aware that the complainant did not want to have any contact with him that night.

57. Exhibits G and H clearly show NO making large numbers of phone calls and sending large numbers of messages to the complainant from 17 July, especially on 18 and 19 July, during which days it seems that a total of over 200 calls and messages were made or sent to the complainant by NO.

58. As noted, the contents of the messages of 18 July are not available. However the messages of 19 July involve NO asking to speak to his daughter, apologising, asking the complainant to talk to him, and raising various issues in their relationship (for instance, suggesting that "we both know what the real problem is", asking whether the complainant is still seeing someone "for depression", offering marriage, and suggesting "I'll get sorted out U get sorted out Help each other through this").

59. After messages from the complainant asking NO why he turned on her location services, accusing him of stalking her, asking him to stop contacting her (at 7.16 pm) and telling him "don't bother texting me. I will get a restraining order" (7.19 pm), NO's tone changed and he threatened to report the complainant for assault and "taking the children out of the state". The complainant replied that she was within her rights to take the children, and at 7.28 pm encouraged NO to lay charges:

as it will give me the opportunity to talk to the police in regards to being raped, harassed and emotionally and physically abused by you in the last five years! Stop contacting me!!.

60. NO sent 12 more text messages (and made 12 more short phone calls) that evening and the next morning, before the complainant replied to a message in which NO said he would start packing her things for her; her message said:

Please don't pack our things as I'm not comfortable with that. I will arrange to collect our things and will give you notice of that. [Our daughter] will call between 6-6.30pm as discussed previously. [Our son] just woke up and is about to have a shower with me. He is good. I have not made an appointment for his ultrasound as yet, however I will also notify you of that time once it's made.

61. NO was asked to explain the nature of his concerns about the whereabouts of the children in the period beginning on 17 July. He was initially reminded that not long before that, after a struggle over a mobile phone, the complainant had left with the two children and spent a couple of weeks with her family. The cross-examination continued:

Certainly on that occasion though you had no problem with [your daughter] being away - sorry, in terms of - let me start again. You had no concerns with - that [your daughter] would be cared for appropriately on that occasion?---I'm not 100 per cent sure. I don't have that information. Whether we were communicating a lot or a little I'm not 100 per cent sure.

It's all right, just cast your mind back to that time and just have a think about whether you had any concerns about [your daughter] being appropriately cared for while she was away from you for that two week period or so?---So I would've. It would have just been the regular stuff about [the complainant's sister] smoking in the car with the kids, the police officer sister that holds my daughter and says "Your daddy's a dickhead." They would have obviously been concerns, and obviously where my children were would have been a concern and it always would be.

They're the only two concerns - - -?---Still is today.

They're the only two concerns we've heard about that you have about the safety or the care of your kids, isn't it?---I don't believe that [the complainant] would harm my children physically.

Well, the only two concerns that we've heard about is [the sister] smoking in the car with the kids and [another sister] calling you a dickhead in front of [your daughter]. I mean, they're the only - - -?---No, she - - -

- - - two concerns aren't they?---She was actually - I wasn't in the room, but the complainant said that she was holding up [our daughter], looking her in the face and saying, "Your daddy's a dickhead."

I understand that, sir. The question was they're the only two concerns that you have about the kids' safety, isn't it?---No, they're not.

They're the only two that we've heard about, isn't it?---I thought I just said I'm always concerned about where my children are.

Do you need to control your children?---I've got a twoyear-old and a fouryear-old.

Your partner the complainant is looking after them?---She's not my partner.

She was then?---At that time, no, she - you just said that she'd left.

Well, for a period of time?---And that's concerning.

Why?---They're my children.

I get that, but why is it concerning? She's the mother of [your daughter] as well. What's the concern if you're not there? What are you worried about?---I worry about my children every day. Now.

The question is what are you worried about? Not that you're worried, what are you worried about?---Absolutely every - anything and everything. Do they have sunscreen on? Who are they with? Are they hurt? Anything and everything.

62. NO was cross-examined at length about his understanding that the complainant did not want him to contact her. At times he was evasive about how he had understood some of the complainant's replies to his contacts, saying things like "I'm not 100 per cent sure", agreeing that the complainant had told him not to contact her but arguing about how many times she had done so, appearing to suggest that there were more contacts than recorded in the phone records and implying that such contacts might have had a different flavour, and eventually conceding that he might have ignored the complainant's wish not to talk to him; he gave the following evidence:

If [the complainant] didn't want to talk to you, you would disregard what she wanted and you would try and pursue it with her anyway, wouldn't you?I would half disagree with that because it just depends on the circumstances.

On this occasion here on 19 July - - -?---When she's run away with my children.

- - - [The complainant] didn't want to talk to you and you wouldn't take no for an answer. Do you accept that?---When she ran away with my children, that's - I was going to find out what was going on until I was happy with that, yes.

And on the 18th - or the night of the 17th/18th of July, again you weren't taking no for an answer were you?---I was not satisfied with what I'd received.

63. Later in cross-examination he gave this evidence:

So when does "I don't want to talk to you" or "No" mean what it says?I was not satisfied with what I'd heard at the time.

I understand that, but the question is simple. Giving the words "I don't want to talk to you" their plain, ordinary English meaning, what does it mean if it doesn't mean "I don't want to talk to you"?---Sorry, I don't understand what you're saying. Say it again please? Could you please say it again?

You know what "I don't want to talk to you" means, don't you?---That's correct.

So why doesn't it mean what it says?---If you ask me not to talk to you, that would be fine; I would just not talk to you. Maybe if the mother of my children were to say "Please don't talk to me" but there was information that I needed about my children, or something I needed to justify about our relationship or building it back together or "Let's work on this, I don't want to lose my family," that - it's not acceptable.

What was that last bit?---It's not - I was not satisfied. I was not accepting that. That's not right.

64. In other words, NO saw himself as having a right to continue to pursue the complainant via phone calls and messages until she gave him the information he wanted.

65. NO may be correct in envisaging that there might be circumstances in which it would be legitimate for a parent to continue to press the other parent for information about their children, but it is clear from NO's evidence, and indeed the content of the complainant's messages (for instance, the message quoted at [60] above), that the complainant was not seeking to exclude NO from his children's lives, and that NO's expressed determination to continue to contact the complainant despite her requests that he stop, had more to do with his need to impose his will on her than with any genuine concern that on 18 or 19 July his children were in some kind of danger.

66. The Crown said that NO's use of the complainant's new email address suggested that NO must have accessed the complainant's Gmail account without her knowledge.

67. NO's evidence (at [46] above) was to the effect that, on the home computer at the home the complainant had shared with him, "the emails come up automatically for [the complainant's] Gmail account", and that the email to the complainant setting out her new email address had come up on the screen when he opened the home computer after she had asked him to transfer a TPG account to the computer at the South Coast.

68. There were two problems with this aspect of the stalking evidence.

69. First, the Crown did not clearly identify what aspect of this allegation brought it within the s 35(2) list, although possibly accessing another person's email account could amount to interfering with the person's property.

70. Secondly and more significantly, the evidence before me amounted to the complainant's evidence that she had not given the new email address to anyone, and NO's evidence that the new address had come up, in an email to the complainant, that appeared on the screen on the home computer when he opened it for another purpose.

71. The complainant's evidence that there was no way that NO could have discovered her new email address except by accessing her old email account did not seem to address the multitude of other less technologically intrusive ways of discovering an email address.

72. Furthermore, the evidence given by the complainant and by NO was not inconsistent. The complainant's evidence did not exclude NO's explanation, and there was no application to recall the complainant to give further evidence about this matter after NO gave his evidence. In this situation, my own experience with Gmail and associated or similar services would not justify the view that NO's evidence is inherently unlikely. Accordingly, I cannot be satisfied that NO took any action to access the complainant's email account without her consent (as distinct from coming into possession of information put in front of him without any intention on his part).

73. In summary, and because there was no convincing evidence before me to the effect that NO could not legitimately have come to know the complainant's new email address, I am not satisfied beyond reasonable doubt that NO accessed the complainant's Gmail account without her knowledge or consent.

74. Because I am not satisfied to the necessary standard that in July 2015 NO activated location services on the complainant's phone, or that around that time he accessed her Gmail account, I do not need to determine whether either of those actions would fall within the s 35(2) list of actions that may contribute to a finding of stalking.

75. I am however satisfied BRD by reference to the phone records that NO stalked the complainant as defined in s 35(2)(f), by repeatedly and on multiple separate occasions contacting her by phone and text message over the period of 18 and 19 July 2015.

76. Stalking is only an offence, however, if it is done with a particular intent; the relevant intent in this case is an intent to harass (s 35(1)(c)). Under s 35(4), that intent to harass may be established if the person knows that, or is reckless about whether, stalking the other person would be likely to harass him or her.

77. Section 35 of the Crimes Act is, for the purposes of the Criminal Code 2002 (ACT), a "pre-2003 offence" (s 8 of the Criminal Code). As such, s 20 of the Criminal Code, which defines recklessness, does not apply to the offence created by s 35 (ss 8 and 10 of the Criminal Code). In this case I have proceeded on the basis that NO would have been reckless about whether the stalking would be likely to harass the complainant if:

(a) he simply did not consider whether the stalking would harass the complainant; or

(b) he realised the possibility that the stalking would harass the complainant, but went ahead regardless.

78. There is no definition of "harass" or "harassing" in the Crimes Act, and I am aware that many people these days engage in an almost constant exchange of electronic communications, in one form of another, with many of their associates, for many or most of their waking hours. Indeed, as noted below, the evidence was that there were periods during their relationship in which NO and the complainant exchanged very frequent calls and messages. I accept that sending large numbers of messages, or making large numbers of phone calls, or both, to another person is not necessarily harassing.

79. Before dealing with the phone contacts between NO and the complainant that are relied on as stalking, I note the evidence that NO and the complainant were in frequent telephone contact in the days leading up to the period covered by the stalking charge, and reiterate that the sheer volume of NO's contacts does not of itself establish anything about the significance of those contacts. For instance:

(a) On 13 July 2015 the complainant sent NO 7 messages and made 2 short calls and 2 longer calls to him. That day NO called the complainant 3 times; 23 seconds after one short call, the complainant made one of her longer calls to NO.

(b) On 14 July there were in total 34 attempted or successful communications between the two, with NO sending 7 messages and making 7 calls of which 6 were short calls, while the complainant sent 14 messages and made 6 calls of which 4 were longer calls.

(c) On 17 July, after a quiet start, there were many communications from 3.23 pm, when the complainant, possibly after her haircut, sent a message to NO. After an exchange involving 15 further messages (7 from NO) and ending at 4.49 pm, the complainant made a couple of short calls to NO from 5.16 pm, and at 5.19 pm there was a longer call made by the complainant. The complainant then sent 4 messages to which NO did not reply and made 3 short calls to him finishing with a message at 5.36 pm.

80. On the other hand, I am satisfied that, on multiple occasions on 18 and 19 July, NO made calls or sent messages to the complainant despite her explicit requests, or demands, that he not contact her. I accept NO's claim that he wanted to know where his children were. I do not accept the implication of his evidence that he was worried about the safety of the children, and I do not accept that the repeated calls and messages reflected any such concern. It is relevant that:

(a) that before the calls and messages began, NO had let the complainant know, on 17 July, that he didn't care where she stayed or what she did (at [24] above);

(b) that NO appeared at that point to have no concern that the complainant would respond to this message by abandoning the children to look after themselves at home, as indicated by the fact that after sending this message he did not return home from lunch until around midnight, and that after discovering that the complainant and the children were not at home he returned to the area of Mooseheads (despite, on his own evidence, having no idea that the complainant was also in that area);

(c) that NO conceded in evidence that the complainant would never physically harm the children, and when pressed, could identify no real failure in the complainant's mothering; and

(d) that NO's wish to know where his children were in July 2015 reflected little more than his need, or wish, to know where his children were at every moment, even when he believed they were in the care of their mother (at [61] above).

81. Finally, I note the submissions made in the trial that the complainant's approaches to police on 19 July and, more significantly, on 31 July were motivated by her knowledge that NO intended to take action in the Family Court in relation to his access to the children. However, the verdicts in the trial indicate that the jury did not accept the proposition that the complainant's complaints were false and made in response to the Family Court action. Furthermore, the evidence of calls and messages after the complainant left the family home speak for themselves, and the credibility of that evidence does not depend on the complainant's motive for complaining of NO's attempts at contact.

82. I am satisfied that NO sent to the complainant an ongoing barrage of mostly unsolicited and unwelcome phone calls and messages that were not justified by any concern about his children, that he knew those contacts were unwelcome, and that when he contacted the complainant, he either knew that his calls and messages would be likely to harass the complainant, or realised that possibility and went ahead anyway. That is, I find that, on two or more occasions between 17 July and 31 August 2015 he acted as described in s 35(2)(f), and that when he did so he had an intent to harass the complainant that is sufficient to make out the offence created by s 35(1) of the Crimes Act. Accordingly, I find NO guilty of the stalking charge.

I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.