Abbott v Martin [2007] QDC 288

1 [2007] QDC 288 DISTRICT COURT CIVIL JURISDICTION JUDGE C. F. WALL QC No 277 of 2006 GRAHAM STUART ABBOTT Appellant and ALISSA MARTIN Respondent SOUTHPORT ..DATE 19/07/2007 ORDER -- 1 of 17 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The appellant appeals against his conviction in the Southport Magistrates Court on the 8th of June 2006 of an offence of stalking. He was convicted of unlawfully stalking Brian Leigh at Arundel, between the 1st of December 2004 and the 11th of January 2005. Much of the evidence was not disputed. The appellant did not give or call evidence. He represented himself before the Magistrate and before me. The appellant did not dispute that he visited, telephoned and left messages and notes for the complainant as alleged by the prosecution. His primary argument was that any apprehension or fear suffered by the complainant was not due to that conduct, but, rather, to a belief by the complainant that the appellant would burn his house down because the complainant believed that the appellant had earlier burned his car and boat. The car, in fact, belonged to Mrs Leigh's mother, and was burnt in their driveway (see page 37, 18th of May 2007). The appellant denied burning the car and boat, and it was conceded that there was no evidence that he did. He submitted that, by themselves, the visits, phone calls and messages, would not have caused any apprehension or fear to the complainant or his wife. The resolution of this issue has not, in my view, been complicated by the Magistrate's reference to the "arson to the boat and shed" (page 11), and burning the "boat and shed and house" (page 13). The Magistrate referred (page 11) to the defence which the appellant relied on, which is the same as the argument advanced to me. The relevance of the earlier -- 2 of 17 -- 3 ORDER 1 10 20 30 40 50 60 arson events was that property of the complainant, or associated with the complainant, had been set alight, not so much which particular property. The appellant left a laptop computer with the complainant for safe-keeping, along with other property. When he went to retrieve it two or three days later it was not there. He blames the complainant for stealing it and selling it. The complainant denies that he did either of these things. These events occurred in about April 2004 or February 2004 (see the letter dated 1st of January 2005, Exhibit 4) or the 14th of March 2004 (see page 36, 18th of May 2006). The appellant returned to the complainant's house inquiring about his laptop, "probably 20 times" - "three or four times a week" over "probably six months" (pages 22 and 23, 18th of May 2006). The impression given is that it was over the next six months. These visits made the complainant feel "terrified all the time.....just wouldn't leave us alone. He was going on and on about the stupid laptop" (page 23). The complainant and his wife went to Melbourne in the first week of December 2004. Before they went, the complainant's car and boat were "burnt in the yard and I can't say for sure if it was Graham or not. He said it wasn't, so we don't know if it was or was not" (page 23). In Melbourne, the appellant telephoned the complainant on the latter's mobile phone, five, seven, 12 or 13 times; he rang on Christmas day asking where his laptop was (pages 23 and 24). -- 3 of 17 -- 4 ORDER 1 10 20 30 40 50 60 The telephone calls made the complainant feel "pretty upset about the whole thing.....The wife just about had a breakdown over it" (page 24). "We were so upset about it, that's why we came back as quick as we did, because we weren't game to stay away long.....Getting a bit frightened that the house might get burnt down or something". They arrived back in Queensland on about the 1st of January 2005, or just after then. When they arrived home, Mr Leigh's neighbour handed him letters or notes which the appellant had left for him while he was away. The appellant admitted leaving these. The notes, letters or messages were tendered. They evidence many visits. They accused the complainant of stealing the appellant's laptop. When he saw these notes, the complainant said he felt "pretty scared about it.....I thought 'what's this guy going to do to me?' just over a stupid laptop" (page 25). After one of the appellant's many visits, the complainant said he felt "just so upset about the whole thing, it just spoiled everything. We went away trying to get away from all this. We were just so stressed out." The appellant also wrote to the complainant's neighbours on the 1st of January 2005 saying: "I have not harmed Brian or Pam or one skerrick of their property..... I have stepped up my demands for its (the laptop) recovery in the last month, (a) having recently acquired hard evidence and (b) having told him that his time is -- 4 of 17 -- 5 ORDER 1 10 20 30 40 50 60 up. No more lies and I'm sticking to that and making absolutely sure he knows that. I am visiting every day, not to "stalk", but out of concern that he is now in hiding and may well take off again immediately on returning from Victoria. They are the ONLY reasons I am calling by every day. He has disconnected his mobile, put on a silent home number, refuses to tell anybody where he is or when he's coming back not even neighbours or family, refuses to answer letters or answer questions or phone calls. He is hiding, in the guise of a holiday. He could come home any day, and be uncontactable by phone. I lingered at times on his front lawn only because of a stupid lie Brian told me and his son, that he was "staying with friends 40 minutes drive away". (I was demanding by phone he drive home). But on Dec 27 Brian K confirmed with certainty he was indeed in Victoria, so that justified tactic obviously is irrelevant now. Importantly, there is clearly at least one other person he has reason to hide from too, because I had nothing to do with those two fires. In recent times he has treated many people badly, including his wife. Please accept that I just want my laptop back. I do not want revenge on Brian, police charges, or war. If I resorted to violence or destruction against Brian I simply would not get my laptop back, which is all I want. Therefore I am never a threat to your neighbourhood. I am just calling in every day. Any person you are all understandably wary of is not me. Really, you interfering neighbours should be protecting me from HIM, not put a protective barrier around somebody who in recent times tells monstrous lies to and deceives his wife, family, me, and neighbours, and who thieves from those close to him. (Brian was not like this two years ago, he has changed). To the point of blindly ringing police against me, a victim not a perpetrator. Brian has conned his neighbours, he is not an innocent sufferer..... I am therefore calling on whichever of the neighbours mistakenly rang the police about me to ring the police again and withdraw that complaint. In return I will visit only rarely till they come back; I will rely in part on another trusted source to advise me of their return. Indeed, ringing police was completely out of order, even without all the above information. I repeat, I have not harmed him or his property. Or anybody else's. And don't intend to. So why? Bluntly, if there is any disturbance in the street it is Brian, not me, and neighbours should have rung the police about HIM, not me. -- 5 of 17 -- 6 ORDER 1 10 20 30 40 50 60 I am in the position now whereby I am theoretically not allowed to even visit Brian after he returns! Under promise of being slammed into prison without bail. (And I am innocent). Thanks to this incorrect action by a neighbour whose incorrect account police believe in preference to mine. You see, this issue with Brian HAS to be resolved. He either proves his innocence or gets me my laptop back. Further, Pam AND I want all my property out of her garage, something which will not happen till I get my laptop back! Whoever rang police clearly has not realised the difficulty of my position or its seriousness, or Brian's absolute dishonesty and intransigence, nor the length of time this has all gone on for. So please correct this error." The appellant provided a copy of this letter to the complainant. On visit number 19, the appellant left a letter dated the 2nd of January 2005, in which he said: "Brian! A very serious new repercussion of your lies and stupidity of the last 10 months has arrived. A neighbour has rung police about me doing nothing more than visiting your home every day to see if you are back or not. I have had to do that, because in your stupidity you have no mobile and a silent home number. And in your stupidity you won't tell me where you are or when you will be back, or any neighbour or family. And indeed you have told me stupid lies about those things. So I will never know you are back unless I call! The same lady detective who visited you after your first fire has said I WILL be slammed back into prison without bail if I visit even when you do come back. And I am innocent. I will visit anyway, and woe betide you if that were to happen. One unfortunate effect of this incident is that police by definition now have a formal complaint from me that you have stolen and sold my laptop last February. By definition I had to justify my presence on your front lawn for the 18th time. They may now have to investigate you, but I hope they don't. This matter HAS to be resolved. You either prove your innocence, or get in your car then and there and get me my laptop back from wherever you sold it....." -- 6 of 17 -- 7 ORDER 1 10 20 30 40 50 60 On visit number 20, the appellant left a letter dated the 3rd of January 2005 in which he said: "Brian, As always I am transparent. I make no apologies for having written scathing letters to your neighbours, and for openly provoking your neighbours over the last week or two. To turn them against you, for them to be aware of how you treat people close to you including them, to isolate you as much as possible. It is not necessary to have to light fires to make you wake up out of your delusions and dream world. I don't need to do that sort of thing. Just to make you realise it is simply not worth your while to continue not giving me my laptop back. Nor to telling your wife and me and your family lies lies lies about it for 10 months. Look, I rang you from your front door and asked if you were at home. You said yes! You then said you would be home in one day (later two), and that you were staying with friends on the Sunshine Coast! That's three lies in three minutes! Stupid, senseless, self destructive lies you could not possibly get away with. And you have done exactly the same thing over the laptop and heaven knows how many other things for 10 months. It is simply not worth your while continuing on like this. Just get me my laptop back, and at least get ME out of your system. You are going to have to get it back, mark my words." Visit number 21 occurred the next day, the 4th of January 2005, at which time the appellant again left a letter dated the same day, in which he said: "Brian, As always I am transparent. Hopefully this is my last communication for quite a while, after having talked to Keith. Perhaps a week. I was glad we could talk in a civilised manner last night. Everyone loses in a war; if I were, say, to burn your boat, then you would just burn all my stuff in retaliation, and what gain is that to anybody? I don't want a war. -- 7 of 17 -- 8 ORDER 1 10 20 30 40 50 60 The bottom line is really that you are still going to HAVE to give me back my laptop. You say it's Keith, and Keith says it's you. Whichever one it isn't knows that, and you will have to fight it out between you, and the one it isn't will have to convince the other that it is not worth his while not getting it back. And I have to write because I can't ring can I? I have to say I still think it was more likely you who did this, even after talking to Keith again today who significantly unexpectedly backed off two lies, big ones. I have to say, again, that your difficulty is still credibility. If you have said a heap of patently untrue things over and over for a long time to everybody, ("thinking the laptop might turn up somewhere" isn't any relevant explanation), then no matter how much you say that you would never and didn't ever sell a laptop of mine, nobody's going to believe one breath of that. And the thing is escalating to police and lawyers and distress for Pam and who knows what because that's what you've done. Not because of me. As an example, may I express the view that if you and Pam wanted to get away from everyone and everything for a while and not tell anyone where you were or when you were coming back, then I think that is a terrific idea. So say that! But to say you are at home and then on the Sunshine Coast and would be back in two days only means that of course I object, and bitterly bite back, and you have made a fool of yourself! And later when you do say something that IS true I don't take you seriously. And you keep coming up with these stupid false statements nearly every time we talk, and even last night there were at least two more! So with respect to the laptop, unless you decisively prove otherwise I can't accept that it wasn't you who sold the thing last February. Lots of reasons as to why you wouldn't I agree, but still many why you might. Keith too has lots of reasons why he wouldn't have taken it. Believe me, I want you to prove it wasn't you..... This whole problem should have been resolved on April 2nd (the day I turned up unannounced). And if Pam hadn't told a heap of blowies that day trying to back up yours, by saying (like you) amongst other things that that day was the very first time she knew the laptop was missing when she had known that for 5-6 weeks, and would look through the house for it for me, then the mystery would have been unravelled then and there, whatever the answer was/is. For me to get all my stuff out of Pam's home, which I've wanted to do for months as you have wanted, still depends on getting the laptop back from wherever it is. The -- 8 of 17 -- 9 ORDER 1 10 20 30 40 50 60 ball's in your court. The long delay is your doing, not mine." The complainant said this letter made him feel "pretty upset and frightened..... what he was going to do next.....it just kept going on and on and I thought 'what's going to happen next?'" (page 26). On visit 23, the appellant left a letter dated the 8th of January 2004(sic) (Exhibit 8), in which he said: "Brian and Pam, Just a suggestion, before you move to your super secret new home with police protection but not before you give me back my $4000 laptop first which you are going to HAVE to do. Have a full scale meeting with Keith, four of us, at his place, your place, my place, any place. You see Brian has said essentially the other night, 'OK I've said a lot of things that weren't so, for this or for that reason, but to put an end to all this once and for all, this is what really DID happen'. But what he has said did happen is NOT what happened. As I have already intimated. You both launch these vicious attacks on Keith behind his back..... Keith is being used. And is still being used for your primary tactic to divert attention away from the fact Brian sold it himself. Namely, to say that I can't prove or disprove anything, to accept that the laptop is gone, and piss off, And Brian pockets the $1000+. Keith now remains the only viable option to do that. You know that Keith will always say no by definition. You think you can just keep fobbing me off on to him and leave me in no man's land. However, I might be wrong. If you want to prove me wrong, if Brian wants to prove his innocence, if Brian wants to prove that what he said the other night is what really happened, then the ONLY way is for the three of us to sit down with Keith, for you to say to his face all those things you are saying about him, and by definition force him to admit his guilt then and there. -- 9 of 17 -- 10 ORDER 1 10 20 30 40 50 60 If Brian wants to say forever that it was Keith and not him, and there is now no other possibility, then prove it. Simple. The end." The complainant said this letter made him feel "pretty frightened, actually" (page 27). There was then this passage from his evidence-in-chief: "So with all that had occurred, the letters and Mr Abbott contacting you, just explain to the Court how all that made you feel?-- Oh, I was pretty devastated about the whole thing. I was frightened as to know what he was going to do next and, as I said, my wife got cancer and everything and that wasn't helping her. She'd just come out from an operation and everything like that and she broke down and everything after - not long after that, and I didn't know what to do about it." The complainant then gave the following evidence in cross- examination (pages 30 and 31): "You were devastated about these fires. You said three times now that you were scared that I was going to come and burn your house down?-- That's right. That's right. 'Cause you believe - you said to me you [indistinct] the night before on the 3rd of January, you said, 'I'm certain as anyone can be that you were the person who lit those fires'. And you can't prove or disprove anything. That's what you said?-- That's right..... The only reason you said you were [indistinct] out the house, you just said it then?-- I did. 'Cause you believed I was going to-----?-- That's right. -----burn your house down. You contacted the police when you rang them up when you got back because you were worried that I was - I was still going to come back and burn the house down?-- Well, how was I to know what you were going to do? That's right. Well, [indistinct]. It was no more than an annoyance, was it?-- That's right, it was an annoyance all right. -- 10 of 17 -- 11 ORDER 1 10 20 30 40 50 60 Annoyance. [Indistinct] went, you'd be annoyed and angry no matter how many times I knocked on your door but you [indistinct] tell the truth [indistinct] still wouldn't worry very much. [Indistinct]?-- Course it was worrying. 'Cause you're worried about if I burn the house down because you felt [indistinct]?-- I don't know who did it..... The only reason you were worried about me burning the house down was because you thought I was the person that lit the fire?-- I don't know if you were or not, but it all points to you. Who else was going to do it? Who else has got a grudge?" In re-examination, the complainant gave the following evidence (page 32): "From the period the - that the laptops went missing and-----?-- There was only one that went missing. All right. Sorry?-- The other one was still there. The defendant contacted you continually?-- Mmm-hmm. From that period to the period of say September 2004, how did it make you feel?-- We were so upset we didn't know where to turn, you know what I mean. It was just upsetting our whole life, you know, ringing and ringing and coming around there all the time, you know, and we were just so devastated with it, we didn't know what to do, you know. Yes?-- But, yeah, nerves were on edge, I couldn't sleep properly at night, we just, yeah, up half the night looking - looking to see if he was coming down the road somewhere or something, you know, all the time. It was just - we were just on constant edge all the time. Right?-- Used to upset us all the time. When the actual - a car was there on fire?-- Mmm-hmm. And you did not know who that - who had lit the car on - lit the car on the fire?-- I knew it would probably be him. Right. Okay. After-----?-- No-one saw anyone or saw anything because it was - it was done with a candle. All right. Okay. But even before the car being lit, you had, what, those feelings?-- Oh, yes, definitely." -- 11 of 17 -- 12 ORDER 1 10 20 30 40 50 60 This evidence relates to the period before the 1st of December 2004, and it is possible the Magistrate took it into account. It was not evidence of stalking. At best, it explained part of the background facts and circumstances relevant to the relationship. The Magistrate recognised (page 5) that "the stalking charge dates from the beginning of December 2004, and the conduct complained of includes repeated calls to Mr Leigh's mobile phone whilst they were in Melbourne..... demanding the return of his laptop" and the correspondence already referred to (page 5). The Magistrate referred (page 8) to the appellant's interview with police where he admitted attending the complainant's address very frequently, persistently, as he wanted him to realise, through honest and reasonable non-violent means, that he would get his laptop back. He agreed the complainant had told him dozens of times to go away. In her reasons, the Magistrate said (pages 12-13): The defendant was aware of the fires. His letter to the complainant as quoted above make (sic) reference to the fires and upon the evidence of Detective Martin, he was visited after the fires. Circumstances for this purpose of determining whether the fear or apprehension reasonable (sic) arises in all the circumstances include, in fact, the circumstance that Mr Leigh was a victim of anonymous arson. The letters to the defendant not only indicate knowledge of the fires but indicate a determination almost to exploit the understandable fear that an anonymous arsonist would engender the complainant(sic), for his own purposes. For example, the letter of the 2nd of January 2005, I have already quoted: -- 12 of 17 -- 13 ORDER 1 10 20 30 40 50 60 'The same lady detective who visits you after the first fire has said I will be slammed back into prison without bail if I visit you, even when I'm innocent. I'll visit anyway.' The letter of 3rd of January 2005: 'It is not necessary to have to light fires to make you wake up out of your delusions in dream world. I don't need to do that sort of thing.' I find that the relentlessness of the defendant's conduct, his refusal to heed the complainant, neighbours or even police warnings, would cause the stalked person apprehension or fear reasonably arising in all the circumstances of violence to or against property of the stalked person or another person." I am unable to agree with the appellant that the Magistrate was wrong in reaching these findings or that they were not open to her. The appellant also sought to confine the Magistrate's reference (page 13) to the complainant being "very upset" to the period up to September 2004. The fact is that the complainant was also very upset at the post 1st December 2004 conduct of the appellant. There is no substance in this point. The appellant submitted that there was no evidence that any of the section 359B(c) of the Criminal Code acts relied on by the prosecution had either of the effects referred to in section 359B(d) rather, any such effects were caused by a mistaken belief that because the appellant had burnt the complainant's car and boat, he would also set fire to the complainant's house unless he returned his laptop. -- 13 of 17 -- 14 ORDER 1 10 20 30 40 50 60 The acts relied on here, phone calls, notes, letters, messages, visits were, in my view, such as would cause the complainant apprehension or fear reasonably arising in all the circumstances of violence to or against his property, or cause detriment, reasonably arising in all the circumstances to the complainant, and the Magistrate was correct to so find. It will be recalled that in evidence the complainant said "how was I to know what you (the appellant) were going to do". Section 359A defines "detriment" as including apprehension or fear of violence to or against property of the complainant or another person (here, his wife), or serious mental, psychological or emotional harm. The complainant's wife, Pamela Leigh, said that the letters already referred to caused her to be "a little bit worried because I was scared really, because I didn't know what actually was going to happen" (page 34). She also gave this evidence (page35): "So did the defendant ever come to your house before you went to Melbourne?-- Yes. And did he ever speak to you?-- Yes. Yes. Could you tell the Court what he'd told you?-- Yes, one night he came to our door and my husband wasn't home and he said that my husband, in all the time my youngest daughter was there, my husband was having sex with her and then he would - told me to tell Brian that his troubles had just started..... How did that make you feel?-- Very unsure of what he was going to do next. Especially when he said - you know, 'Tell Brian his troubles have just started.'" -- 14 of 17 -- 15 ORDER 1 10 20 30 40 50 60 Notwithstanding that this occurred before she and the complainant went to Melbourne, it is, nevertheless, relevant to the formation of her subsequent belief as to what may have transpired as a result of the appellant's conduct after the 1st of December 2004. In my view, it is clear that "detriment" as defined in section 359A was the effect of the appellant's conduct, notwithstanding that the complainant may have been mistaken about his belief that the appellant set fire to his car and boat, or that there was no evidence that he did. There was, in my view, ample evidence to justify the conclusion reached by the Magistrate that it was the conduct of the appellant in telephoning, leaving notes and letters, and visiting the complainant, that caused the complainant to apprehend or fear, even if wrongly, violence to or against his property, or to suffer serious emotional harm. The complainant's belief that the appellant had set fire to his car and boat did not have this effect on the complainant, on the contrary, it was the appellant's continuing conduct between the dates alleged which had that effect. It is immaterial, in my view, that the complainant may have been mistaken in his belief that the appellant would set fire to his house if he did not return the laptop. It was the conduct alleged against, and admitted by, the appellant which engendered apprehension, fear or detriment on the part of the complainant, not what the complainant believed the appellant may have done to his car and boat. The appellant, in his -- 15 of 17 -- 16 ORDER 1 10 20 30 40 50 60 letter of 4th January in fact conceded that what was occurring was causing distress to Mrs Leigh. The fact that the appellant was not going to set fire to the complainant's house is not the point; the appellant's conduct caused the complainant relevant fear, apprehension or detriment that that or something may happen as a result of that conduct. The complainant believed that the appellant would set fire to his house, not because of his belief that he had set fire to his car and boat, but because of the appellant's ongoing campaign of telephonic, verbal, written and physical harassment. Without those Section 359 B(c) acts, the complainant would not have suffered the fear, apprehension and detriment he said he did. In paragraphs 49 to 52 of his amended outline of argument the appellant contends that answers given by the complainant led the complainant to believe that he had "won the whole trial" on the basis, he submitted, that the complainant had lied about part of his evidence and was clearly an unreliable witness. On the contrary, the Magistrate said she found all of the prosecution witnesses credible and believable. Much of the appellant's outline of argument sets out his version of the facts, including his view of the conclusions one should reach from that version, rather than the evidence given before the Magistrate and the findings reached by Her Honour. For the reasons I have given, the appellant has, in my view, not established that the Magistrate was wrong in the -- 16 of 17 -- 17 ORDER 1 10 20 30 40 50 60 conclusion she reached. In fact, I consider she was right. In these circumstances, the appeal will be dismissed. I also order that the appellant pay the respondent's costs fixed at $1,800. Cover everything, Mr Shearer? MR SHEARER: Yes, thank you, your Honour. HIS HONOUR: Mr Abbott, I gave the matter anxious consideration. I know you probably won't agree with my conclusion----- APPELLANT: No, I don't. HIS HONOUR: -----but that's the end of my involvement in the matter. APPELLANT: I understand, yes. Respectfully, you haven't addressed the simple issue. HIS HONOUR: Well, I think I have. APPELLANT: We'll go to the Supreme Court one way or another. HIS HONOUR: Yes. APPELLANT: I'm not copping this sort of thing in the Courts. HIS HONOUR: Yes, all right. ----- -- 17 of 17 --