Barlow v Queensland Police Service (No 2) [2014] QDC 32

DISTRICT COURT OF QUEENSLAND CITATION: Barlow v Queensland Police Service [2014] QDC 32 PARTIES: GEOFFREY JAMES BARLOW (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 217/2013 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: Ex tempore 7 February 2014 DELIVERED AT: Southport HEARING DATE: 7 February 2014 JUDGE: Samios DCJ ORDER: 1. Appeal dismissed CATCHWORDS: CRIMINAL LAW - Appeal - Conviction - Sentence - Stalking - where the Appellant found guilty and convicted by the learned Magistrate of the offence of unlawful stalking - where the Appellant appeals both his conviction and his sentence - whether it was open for the learned Magistrate to find the Appellant guilty of the offence of unlawful stalking beyond reasonable doubt - whether the sentence imposed by the learned Magistrate was manifestly excessive Legislation Criminal Code (Qld) s 359B, s 359D Justices Act 1886 (Qld) s 222, s 223(1) Cases House v The King (1936) 55 CLR 499 Mbuzi v Torcetti [2008] QCA 231 COUNSEL: Mr GJ Barlow for the Appellant (self-represented) No appearances by counsel on behalf of the Respondent SOLICITORS: Mr GJ Barlow for the Appellant (self-represented) -- 1 of 10 -- 2 Miss KE Sampson of the Office of the Director of Public Prosecutions Queensland for the Respondent [1] On the 20th of May 2013, after a summary trial in the Magistrates Court, the Appellant was found guilty of the offence of unlawful stalking. He was sentenced to two years probation, and to perform 200 hours community service, and a conviction was recorded. He was also required to be restrained under an order for 12 months. At a later reopening, the 200 hours community service was reduced to 190 hours community service. The Appellant appeals against his conviction, and also against the sentence imposed by the learned Magistrate. His grounds of appeal are basically: a) that the Magistrate placed too much weight on the Prosecution evidence; and b) that he did not intend to cause the Complainant apprehension or fear. [2] The essence of his defence was that while he did meet with the Complainant at her unit, the unit having been advertised by the Complainant looking for someone to share the cost by taking the other bedroom, he engaged in conduct that was reasonable conduct to obtain or give information that a person has legitimate interest in obtaining or giving. See section 359D of the Criminal Code.1 The Appellant represented himself before the learned Magistrate, and again represented himself on the hearing of the appeal before me today. In his outline of argument, he repeats his grounds of appeal. In addition, he contends that the learned Magistrate gave too much weight to the Prosecution, selective choosing an emphasis on the psychological references, when those statements took up about five minutes of the approximately one and a half hours he was with the complainant and her friend. 1 Criminal Code (Qld). -- 2 of 10 -- 3 [3] In addition, he says further in these grounds of appeal, in this outline of argument, that at no time did the Complainant give him the impression, either in conversation or manner, she felt intimidated by him. I do find, in the file attached to this document, an affidavit by his father which has not got his signature on it, but is dated 26 November 2013. I have seen this document, with reference to another appeal that I have heard this afternoon. I consider its presence in this file is irrelevant to the appeal against the finding by the learned Magistrate that the appellant was guilty of unlawful stalking, and therefore I take no notice of it. [4] This is an appeal by section 222 of the Justices Act,2 and therefore it is to be by way of rehearing; see section 223, subsection 1, of the Act.3 On such an appeal, the Judge should afford respect to the decision of the Magistrate, and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence. But the Judge is required to review the evidence; to weigh the – review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions; see Mbuzi v Torcetti [2008] QCA 231 at paragraph 17. The Prosecution called the Complainant. She said that on 7 December 2011, the Appellant contacted her in response to a room she had advertised for rent on a shared accommodation website. [5] Arrangements were made for the Appellant to attend her house to view the room later that day. The Appellant did attend, and that has never been in dispute. Her evidence was that the Appellant asked to view the Complainant’s room. This request was refused. She also gave evidence that the Appellant picked up and touched various items of her clothing and jewellery located on the kitchen table. She said they sat on 2 Justices Act 1886 (Qld). 3 Ibid. -- 3 of 10 -- 4 the couch to continue the interview; the Appellant followed, moving the pillows and laying down with his feet up on the couch. She said this behaviour made her feel uncomfortable. She said the Appellant asked questions that were personal to himself and about his capacity to pay. The Complainant said the Appellant evaded these questions and began talking about sex and his sexual experiences. [6] When asked what she thought his intentions were, she said “To have sex with me.” She said in evidence “I kept trying to change the conversation, change the subject, because it was very uncomfortable.” She said “At that point in time, I moved and sat on the floor because I didn’t feel like I was comfortable sitting next to him because he kept moving over next to me.” She said the dog came between them. She said that he had moved to the floor to sit next to her. She said that made her uncomfortable and unsafe. She said her heart was beating really fast. [7] She also said that at one stage, the Appellant firmly grabbed her foot and asked her if she would like a massage. The Complainant declined and pulled her foot away. The Appellant then moved back to the couch, after which the Complainant got her iPad out and checked her email. She said that the Appellant looked over her shoulder and asked who she was emailing. He asked to use the iPad. The Complainant consented and passed it to him. The Complainant got her phone out and the Appellant proceeded to question her as to who she was contacting. The Complainant then went to the bathroom and contacted her boyfriend to immediately come to the house. She walked back to the lounge room. [8] She said that the Appellant, who was still using her iPad, asked her to come to his -- 4 of 10 -- 5 house for dinner and some drinks. She responded that she had a boyfriend. She said the Appellant persisted with his invitation. The Complainant estimated that at this stage, the Appellant had been at her house for about half an hour. For about an hour and a half. The Complainant gave evidence that on arrival of her boyfriend, the Appellant’s demeanour completely changed. He was more professional, and desisted with the uncomfortable conversation. She said the Appellant left her house approximately half an hour after her boyfriend arrived. She said that later that night, after seeking advice from her father, she contacted Crime Stoppers to report the Appellant’s unusual behaviour, as she felt unsafe. [9] She also said that on the following day, 8 December 2011, the Appellant attempted to ring her on three occasions. She said she did not answer, as she was scared. She stated that she knew it was the Appellant as she had saved his number in her phone the previous day when he initially contacted her about the room. The Appellant also sent her a message enquiring as to why she was not answering her calls. She responded to a message to the effect that her boyfriend was moving into the vacant room. The Appellant made a further attempt to call her. Her evidence also was that on the 8th of December, the Complainant returned home and had a conversation with her neighbour. [10] As a result of the conversation, the Complainant again contacted Crime Stoppers, following which she contacted the Police. The Complainant gave evidence that she immediately moved out of her house, as she did not feel safe. Cross-examination of the Complainant was not extensive however her answers to the Appellant’s questions did not show her to digress in any way from the evidence she had given. The -- 5 of 10 -- 6 Prosecution also called the Complainant’s neighbour. The neighbour, Mrs Pitt, gave evidence that she resided across the road from the Complainant and had an unobstructed view of the Complainant’s house from her lounge room. She gave evidence that on the 7th of December 2011 she saw a silver car in the driveway of the Complainant’s house. She stated the car was there for some time. [11] There is no dispute in these proceedings that the Appellant did drive a car that could be described as a silver car. It was an Astra motor vehicle. Mrs Pitt’s evidence also was, the following day she saw the car parked near the Complainant’s property. She gave evidence that she saw a man look through the Complainant’s letterbox and then into the back of the property through one gate, before coming out a gate on the other side of the property. Although Ms Pitt gave evidence she could not see the man’s facial features she was cross-examined to the effect that she was purporting to identify the Appellant, and she said that she could identify the Appellant as this person. [12] She was asked by the Defendant – by the Appellant at page 1-46 of the – line 5 of the transcript “Do you think you saw myself that day?” Answer: “Yes. I’m pretty right. I’m pretty sure - the same haircut and if you – I’m sure if you have a walk through that way across from the same place that I lived, yes, and the walk.” The learned Magistrate would not act on any dock identification but this evidence was clearly available as part of the circumstantial evidence against the Appellant. The Prosecution also called two Police Officers. One Police Officer gave evidence that the Appellant owns a car similar to the vehicle observed at the Complainant’s residence on 7 and 8 December 2011 by Ms Pitt. The other Police Officer gave evidence of having arrested the Appellant, however, that evidence is irrelevant because all it -- 6 of 10 -- 7 amounted to was that the Appellant had declined the record of interview. [13] The Appellant also gave evidence. He denied any behaviour which contained any sexual overtones although regarding recollecting what happened at transcript 1-60 at line 5, he said: No, not really, no, your Honour. It’s been blacked out from my mind sort of honestly. Oh I – I can recall some things if you’re – I can recall now, trigger my mind and think back. I called the complainant to come over and remember her greeting at the door and I remember seeing the room. I remember having conversations about nearly everything under the sun, lovely conversations and her laughing all the time. I can’t remember her being in distress any time I was there. I remember seeing the boyfriend [indistinct]. I don’t remember her phoning him or he showed up. He greeted me nicely. We sat on the couch together. I had the iPad in my hands. We talked about stuff. I can’t remember any [indistinct]. I remember that – the cops handcuffing me. I’ve never been cuffed for breach of bail before. I think I just feel like me and the Police aren’t really communicating very well. I wanted to be a Police Officer. I don’t know why I – my parents don’t want me having – dealing with the Police of all because of the way they treated me in the watch house and that. I feel I’ve really been mistreated by the Police Force. [14] Then regarding the issues, the learned Magistrate brought the Appellant back to the charge and the Appellant said that he can’t see any relevancy why he would bring up sex when “I’m looking at a place to live in. I did forget to ask the Complainant a question about what she told me. I was the best candidate that came around so far. Suddenly I looked pretty scruffy, so I didn’t put that to her.” And then he went on to say in his evidence that “The whole thing, I felt it looked like the statements were very tainted.” And then regarding the allegations he said “I looked at that thing for – this is crazy, this is bullshit, this is ludicrous. I can’t believe it.” He went on to say how unhappy he was with how he was handled by the Police. When the Complainant – when the Appellant, sorry, when the Appellant was cross-examined he indicated, with respect to a number of topics, that he could not recall the relevant events rather than they did not happen. -- 7 of 10 -- 8 [15] For example, right at the outset, the Prosecutor asked “So why do you go through the Complainant’s mailbox?” Answer: “That never happened.” Question: “So you didn’t go to her place at all?” “Never happened.” The learned Magistrate interposed saying “That wasn’t the question, sir.” And then the Prosecutor asked “So have you been to her place?” Answer: “I’ve been to her place, yes, to look at her place for rent.” Question: “And I put it to you that you returned to the house the next day, on the 8th of December.” Answer: “I can’t recall. What would be the relevancy?” And then the learned Magistrate interjected again by saying “Just answer the question please – questions please.” [16] And then the Prosecutor asked “So you were asked earlier, you said never happened, now you’re saying can’t recall. Which one is it?” Answer: “I can’t recall.” The Appellant did indicate with regard to his memory and what happened on the 7th and 8th December, that he did not have a good memory as it was too long ago to recall but he could remember some things. Then he was asked “And I put it to you that you called her on the 8th of December. What do you say to that?” And his answer was “Can’t remember 8th of December.” [17] In that respect, as the learned Magistrate later observed, the – generally speaking with regard to the Appellant’s answering questions, that one would’ve thought the Appellant’s answer would have been that it did not happen. His answer though was, he could not remember the 8th of December. That is just by way of example of how the Appellant’s cross-examination progressed. The learned Magistrate’s decision though, showed that he was persuaded by the civilian witnesses called for the Prosecution, whom he said did not flinch from their answers in cross-examination and -- 8 of 10 -- 9 gave evidence honestly, frankly and openly. [18] As far as the evidence of the Police were witnesses, he said those witnesses’ evidence was untested, uncontested, I think he meant, and unchallengeable and able to be relied on in its entirety. However, when it came to the Appellant’s evidence, the learned Magistrate concluded that no weight could be given at all to it, finding the evidence was “At worst evasive but at best for him, followed the pattern of being unable to remember or couldn’t recall.” The learned Magistrate then indicated that he had heard the evidence, reviewed the evidence and evaluated the evidence. He considered the relevant elements of section 359B of the Criminal Code4 and was satisfied all of the elements of the offence were satisfied beyond reasonable doubt. He was satisfied the Prosecution had proved its case beyond a reasonable doubt and that the Appellant was therefore guilty. [19] Reviewing the evidence before the learned Magistrate and weighing the evidence that conflicts, my own view is that it was entirely open for the learned Magistrate to come to the conclusion he came to and I too, come to the same conclusion, that on the evidence before the learned Magistrate, all of the elements of the charge of unlawful stalking were made out against the Appellant. Specifically, I am satisfied beyond reasonable doubt that the Appellant was not engaging in reasonable conduct to obtain or give information that a person has legitimate interests in obtaining or giving. Further, I am satisfied beyond reasonable doubt that the – as well, that the Prosecution did not select and choose evidence and give emphasis on sexual references in the Complainant’s evidence. 4 Criminal Code (Qld). -- 9 of 10 -- 10 [20] Therefore, I also bear in mind that the Magistrate had the advantage of seeing and hearing the witnesses give evidence, giving due respect to his decision, but coming to my own decision, on a review of the evidence, I am satisfied beyond reasonable doubt that the Appellant is guilty of the offence of unlawful stalking as alleged against him. To that extent then, the appeal against conviction is dismissed. I then have to deal with the issue of the sentence. I take the appeal in this respect to be an appeal against the severity of the sentence, that is, that it was manifestly excessive. I am reminded in the submissions by the Respondent of the House v The King (1936) 55 CLR 499 at pages 504 to 505, but before I can interfere, there must – in the exercise of a discretion, there must appear that some error has been made in exercising the discretion. [21] In my opinion the learned Magistrate was correct to consider the options available and to conclude that the imposition of a fine was inadequate in the circumstances. It seems to me this was a serious offence of this kind. The Appellant had intruded on a young female’s sense of safety. There was evidence that she left the premises for some time because she was in fear. Balancing the serious aspects of offending, noting that the maximum penalty for this offence is five years imprisonment, against the favourable aspects that were adduced before the learned Magistrate, I come to the view that the sentence was entirely appropriate in all the circumstances. [22] In addition, the Appellant had shown no remorse and had caused the Complainant to have to give evidence and be subjected to cross-examination. In all those circumstances the appeal, insofar as it relates to the sentence, is also dismissed. Therefore, the order that I make is that appeal dismissed. -- 10 of 10 --