C v H [2003] QCA 493

1 SUPREME COURT OF QUEENSLAND CITATION: C v H [2003] QCA 493 PARTIES: C (appellant/applicant) v H (respondent) FILE NO/S: CA No 278 of 2003 DC Appeal No 3 of 2003 DIVISION: Court of Appeal PROCEEDING: Application for leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Toowoomba DELIVERED EXTEMPORE ON: 7 November 2003 DELIVERED AT: Brisbane HEARING DATE: 7 November 2003 JUDGES: McPherson JA, Chesterman and Mullins JJ Separate reasons for judgment of the Court, each concurring as to the order made ORDER: Application dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – where applicant applied for leave to appeal against the dismissal of an appeal by the applicant against a conviction in Magistrates’ Court for stalking – whether conduct amounted to protracted conduct pursuant to s 359B of the Code – where findings of Magistrate supported conviction on basis of two acts of contacting complainant by delivery of note on two separate occasions – no basis for disturbing Magistrates’ conclusion that s 359D(e) of the Code did not apply to these acts Criminal Code1899 (Qld), s 359B, s 359D(e) COUNSEL: The applicant appeared on his own behalf C E Heaton for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent -- 1 of 7 -- 2 MULLINS J: The applicant applies for leave to appeal against the learned District Court Judge's dismissal of an appeal by the applicant against the learned Magistrate's conviction of the applicant on one count of stalking the complainant between 8 and 10 June 2002. The applicant was the complainant's adoptive father. The complainant was born in about 1971. In 1995, the applicant was convicted of indecent dealing. The complainant was the victim. The applicant was sentenced to imprisonment. After there had been no contact between the applicant and the complainant for a number of years, on Friday, 7 June 2002 the applicant left in the complainant's letterbox a note that had the complainant's name on it and said, "Please ring" and then had a phone number and the letter "D" and the day and the time. The complainant collected the note and recognised the handwriting as that of the applicant. On the same day, the complainant's husband, at the suggestion of the police, telephoned the applicant and requested him not to contact the complainant. On Monday, 10 June 2002, there was an envelope in the complainant's letterbox addressed to her which contained a two page letter from the applicant that dealt with allegations that the applicant wished to make about the offences against the complainant for which he had been convicted. -- 2 of 7 -- 3 Although the applicant did not give evidence in person before the learned Magistrate, his record of interview with the police was in evidence. The Magistrate rejected the applicant's contention that the notes were for the purpose of obtaining information about the whereabouts of the complainant's mother. The Magistrate found that, in the context of the history of the relationship between the complainant and the applicant, the depositing of the first note on Friday, the subsequent telephone conversation that night and the depositing of the second note on Monday was conduct of the applicant that was protracted within the meaning of section 359B, paragraph (b) of the Code. Alternatively, the Magistrate found that if the prosecution could rely only on the second note, the second note went beyond the bounds of section 359D, paragraph (e) of the Code as it was conduct which was not reasonable and it was protracted for the purposes of section 359B(b) of the Code. The Magistrate found that all elements of the offence of stalking were proved beyond reasonable doubt. On the appeal to the District Court, the applicant claimed that the Magistrate could not link together the three separate acts of the first note, the telephone call by the complainant's husband to the applicant and the second note as one single act of protracted conduct. The applicant also claimed that the Magistrate erred in disregarding section 359D(e) of the Code. The applicant asserted that the -- 3 of 7 -- 4 Magistrate could not attribute the telephone call made by the complainant's husband as conduct of the applicant. The District Court Judge rejected the ground based on section 359D(e) of the Code, as the Magistrate had rejected the evidence relied on by the applicant to claim that the notes were delivered for the purpose of obtaining information. The District Court Judge upheld the finding of the Magistrate that the conduct comprising the three acts was protracted and the finding that the conduct could consist of the telephone call even though made by the complainant's husband, on the basis that it was provoked by the applicant. The District Court Judge found that the Magistrate's decision could be supported on an alternative basis that the two notes amounted to protracted conduct on the one occasion. As a further basis for supporting the decision, the District Court Judge also found that it was open to the Magistrate to find that the conduct occurred on more than one occasion and consisted of the first and second notes. On this application for leave to appeal, the applicant argued that the case put by the prosecution to the Magistrate was that there was one act of protracted stalking. As that was the only case that the applicant had to defend and that could not be established in accordance with the wording of section 359B, it was submitted by the applicant that the prosecution must fail. -- 4 of 7 -- 5 Although the applicant is correct in how he characterises the Prosecution's submissions before the Magistrate, the charge that the applicant had to answer was in respect of three identified acts on his part between 7 and 10 June 2002 and whether those acts amounted to stalking. There is a mistake in the dates in the charge. The evidence before the Magistrate was directed at the note and telephone call on 7 June and the letter on 10 June. Technically the dates in the charge should be amended to reflect the particulars and the evidence. The Prosecution does not have to correctly formulate the submissions on law, if the Court is otherwise satisfied that by applying the law, the conclusion can be reached that the offence has been proved based on the facts found by the Court. In order to establish unlawful stalking within the meaning of section 359B of the Code, paragraph (b) of that section requires that there be conduct engaged in on any one occasion (if the conduct is protracted) or on more than one occasion. The conduct must consist of one or more of the acts specified in paragraph (c) of section 359B of the Code. It is therefore only if it is conduct occurring on one occasion only that is being relied on to establish the offence that the conduct must be protracted. I do not consider that the contact by delivering the letter comprising two pages, can be characterised by itself as protracted conduct, nor do I consider that the delivery of the -- 5 of 7 -- two notes on 7 and 10 June 2002 amounted to protracted conduct on one occasion. As the District Court Judge found, however, the findings of fact made by the Magistrate could support the conviction on the basis that the conduct occurred on more than one occasion and consisted of the two notes. I consider that the District Court Judge was correct in arriving at that conclusion. The applicant also argues that the case for the Prosecution failed because the leaving of the notes by the applicant for the complainant was not an act which could constitute stalking because of paragraph (e) of section 359D of the Code. In view of the Magistrate's rejection of the evidence, which was relevant to this issue, there was no error on the part of the District Court Judge in rejecting the ground of appeal based on section 359D(e). The appellant in his written submission argues that the manipulation of the legislation by the Prosecution to gain a conviction is nothing short of, "Gross interference with the course of justice". In view of the conclusions which I have reached on the substantive arguments put forward by the applicant, there is no substance in this assertion. It follows that the application for leave to appeal the decision of the District Court Judge should be refused. McPHERSON JA: I agree. 6 -- 6 of 7 -- CHESTERMAN J: I agree. McPHERSON JA: The application is dismissed. ----- 7 -- 7 of 7 --