STATE OF TASMANIA v JOHN CHARLES REARDON 25 OCTOBER 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Reardon, the defendant, has been found guilty by a unanimous verdict of one count of stalking, contrary to s 192 of the Criminal Code. The indictment alleged that between about 29 January 2017 and 11 September 2019, with the intention of causing MH – his former partner and the mother of his child – mental harm, apprehension or fear, he pursued a course of conduct that included following her, loitering outside her house and entering it, loitering outside her place of work and other places she frequented, keeping her under surveillance, communicating with her by electronic means in a threatening and abusive manner, and loitering outside her partner’s residence and place of work. I am also dealing with his subsequent pleas of guilty to three summary charges of breaching a family violence order made on 7 May 2019 (the FVO). Section 192 of the Code, as it stood at the time, relevantly provided that a person who with intent to cause another person mental harm or to be apprehensive or fearful, pursued a course of conduct made up of one or more of a number of specified actions, was guilty of the crime of stalking. The jury was directed that the action must be intentional; that is, it was done deliberately or knowingly, and was not an accidental or coincidental one: see R v Anders [2009] VSCA 7, 20 VR 596. “Loitering” involves more than being, and remaining, at a place; it conveys a concept of lack of purpose or idleness; Nadarajamoorthy v Moreton [2003] VSC 283. Stalking by surveillance includes keeping watch over a location to observe a person’s movements: R v Anders. Before finding that the accused was “following”, “keeping someone under surveillance” or “loitering”, all reasonable explanations consistent with the defendant not having been engaged in such conduct, need to be excluded: Nadarajamoorthy v Moreton Section 192(2) provides that a person pursues the course of conduct if the conduct is sustained or the conduct occurs on more than one occasion, and that if the conduct occurred on more than one occasion, it was immaterial whether the actions that made up the conduct on one of those occasions were the same as, or different from, the actions that made up the conduct on another of those occasions. Section 192(3) provides that a person who pursues a course of conduct and so causes another person to be apprehensive or fearful is taken to have the requisite intent if the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person to be apprehensive or fearful In this case, the number of incidents covered by the evidence is about 80 or so. The jury’s verdict means only that it was satisfied beyond reasonable doubt that there were two or more occasions of relevant conduct, and that the twelve jurors could have taken separate views as to what constituted the course of conduct under s 192. The verdict also leaves open the nature of the proven state of mind. I need to make findings of fact in that context. Before including an action as part of the course of conduct, I need to be satisfied beyond reasonable doubt that it was an intentional action of the proscribed type, with reasonable explanations consists of innocence excluded, and I need to be satisfied beyond reasonable doubt of the state of mind that accompanied the pursuit of the established course of conduct. By way of background, the defendant and MH started a relationship in about 2003. The defendant was then 41; MH was 20. They had a daughter, L, in 2009. The relationship ended in 2016 after a deterioration over time. MH left the house in which they were living but lived in a house over the road for a few months, then returned for a short time but on a house share arrangement. It was initially agreed that they share child care arrangements on a 50:50 basis. Throughout the period specified in the indictment, the defendant lived at various addresses on the eastern shore, while MH lived at the one address in a street in Mornington that intersected with the eastern side of Cambridge Road. Throughout the period MH variously worked at two locations in the Salamanca/CBD area, while the defendant had part time work which saw him alternate between South Hobart and the Brooke Street Pier. MH had a new partner, TW. I note that interim family violence orders against the defendant were made first on 14 July 2018 with MH’s workplace and TW’s home address added in May 2019, with the final FVO being made adding a further workplace address for MH on 7 May 2019. The actions engaged in by the defendant can be categorised in types of which there are, on my analysis, eleven. The first is that of text messages sent between 20 January 2017 and 27 July 2018. The next incident after the first text happened on 3 February 2017 and involved the defendant driving past MH’s house three times – conduct that constitutes a large category – and on the following day he entered MH’s property when MH was not there but VM, an older friend and grandmother figure to L, was. At about this time MH started to keep a journal, apparently of all times when the defendant was seen, at least unexpectedly, by her and by other adults close to her; in particular, TW. This journal is an exhibit and provided the basis of her oral evidence. The remaining categories, generally in descending order according to the number of incidents in each are: the defendant driving on Cambridge Road past the intersection, encounters at the Eastlands Shopping precinct and nearby places and around workplaces, the defendant following MH and /or TW while driving, and driving close by TW’s home, and encounters at parks at Richmond and Bellerive, at school related activities and near the Hobart Children’s Contact Centre. Both MH and TW gave evidence, and the defendant gave and adduced evidence. There were disputes about the facts of some incidents. As to others, the defendant offered an innocent explanation and as to others, he said that he had no recollection of being at the particular place on the particular date and, not surprisingly perhaps, reconstructed why he would have been there. Generally speaking, there are reasons to approach MH’s evidence with some caution. I do not assert that this was intentional, but there were times when she said that she had no recollection of or was vague and understated things about which it might be expected she recalled or was aware of. These things did not just relate to some specific incidents but included her knowledge and appreciation of the defendant’s disabilities arising from a serious work accident in 1997 which I find were obvious at the time they met, and which were exacerbated by a later serious motor vehicle accident when the defendant was driving and MH was a passenger. However, there was often no reason to reject her evidence and at the same time, there were aspects of the defendant’s explanations about some matters which were not entirely convincing, bearing in mind of course, that he bears no onus. In short summary, my findings of relevant conduct are as follows. The defendant:
- Sent text messages of the proscribed type[1] on 11 occasions between January 2017 and July 2018.
- Drove past or parked outside MH’s home on eight dates between 3 February 2017 and 12 July 2019, there being three instances in relatively quick succession on that first day and two on a later date when TW was there but not MH.
- Entered MH’s property on 3 March 2017 and engaged in a confrontation at the front door with VM.
- Followed and/or kept MH under surveillance at the Eastlands shopping precinct and surrounding areas on about six occasions between June 2017 and May 2019.
- Followed and/or kept under surveillance MH and/or TW in the Salamanca Place/Franklin Wharf/Franklin Square areas on about four occasions between September 2018 and July 2019.
- Followed MH and/or TW for short periods while they were driving in areas on the eastern shore on four occasions between May 2019 and September 2019.
- Took the opportunity to keep MH under surveillance for short periods of time at Richmond Park and Bellerive Beach Park in February and October 2017 and twice in November 2017.
- Took the opportunity to observe MH and L at a Science Expo on 12 August 2017 for a short time, and to briefly observe MH when she was dropping L off at school in November 2017, and again when she was leaving the school in May 2019.
It follows that there are some categories of conduct about which I am not satisfied at all. My reasons for these conclusions will be set out in an appendix to the written comments on passing sentence when published. I note I have not attempted to canvass all of the evidence in relation to each alleged action. The summary charges relating to breaching the FVO are firstly by being within 50 metres of the boundary of MH’s residence – by driving on Cambridge Rd – on 12 July 2019. The second is a breach by stalking between the date of the order and 11 September 2019, and the third is a breach by being within 50 metres of 22 Elizabeth St, a workplace of MH, on 6 September 2019. As to the offending, I have a victim impact statement of MH dated 16 August 2021. She says that throughout that time she lived in a heightened state of alertness and fear, feeling controlled and monitored, and that the stalking behaviours were a threat against her and intended to make her feel afraid as though the defendant had control of her life. She suffered the stress and continues to see a psychologist to work through the trauma. She accepts that she was already vulnerable but the added trauma of the stalking behaviour has increased and compounded her struggle to feel safe. She says that she had to change her patterns of behaviour and restrict movements, with a level of heightened awareness taking a toll on her physically and mentally. She found the threats in relation to her childhood, implied in some of the texts, to be extremely distressing. She felt powerless to prevent possible revelations.
The defendant is now 59 years old. He has no recorded history of offending to speak of, there being only a few minor traffic matters. He had an unremarkable upbringing being part of a large family that he says, was happy and close. He completed grade 12 and has a good industrial record. He has a commercial diving qualification and worked in that area for quite a number of years, being so engaged when he suffered the significant back injury mentioned earlier. He continues to suffer constant pain and bladder difficulties. In 2015 he had to overcome an addiction to morphine based painkillers, and had now found other ways of managing his pain such as meditation and frequent walking. He has maintained his present employment for an historic site management authority for eighteen years. He has custody of L for four nights per fortnight and he cares for his elderly mother who does not live nearby, and so this involves some effort. Before his relationship with MH he was married for 13 years but there appears to be no children of that relationship. I have a home detention assessment report dated 1 October 2021. The defendant is assessed as unsuitable for home detention for a combination of reasons relating to the care for the child, his mother and the possible impact on his financial situation as he does some work outside his established employment. He is unfit for community service because of his back related disabilities. Community corrections assessed him as requiring a medium level of intervention and, having presented with “a number of family violence related risks”, is deemed suitable for a community correction order. I have a psychological report from Grant Blake, clinical psychologist. The defendant consulted Mr Blake for treatment of low mood and anxiety relating to the relationship breakdown in 2016, and saw him for about three years. Mr Blake says that the defendant required mental health support to manage his depressed mood, anxiety, pre-morbid trauma symptoms and co-parenting difficulties, and made clinically significant gains. The report sets out the results of a number of different personality and mental health tests. Mr Blake says that the personality and mental health profile is not typical of someone with a high potential for violence or anti-social personality traits, and was also not typical of spouse abusers. The defendant had no major mental illnesses other than stress from his personal circumstances. I turn to the question of the relevant state of mind. As I have noted, the section requires the pursuit of a course of conduct with the relevant intention, but as I have explained, the intention is taken to exist if the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person to be apprehensive or fearful. I did not understand the Crown to press the issue of an actual intention to cause mental harm or apprehension or fear, and the focus was simply on apprehension or fear. On the whole of the evidence I am not satisfied beyond reasonable doubt that the defendant had the specific intention to cause MH to be apprehensive or fearful. Importantly, I proceed on the basis that he ought to have known that the pursuit of his course of conduct would or would be likely to have that effect. I think in this case there is little material distinction between whether the defendant knew, or ought to have known, what the effect of his course of conduct would be, because of the high degree of recklessness. I take into account that it is likely that much, if not all, of the conduct was driven by his concerns over what he saw to be inadequate attention paid by MH to L’s difficulties and care issues. I cannot and do not make any comment on the legitimacy of his concerns. It does not seem to be the case that the course of conduct was pursued out of jealousy or possessiveness or the like. It is true, as counsel for the defendant submitted, that there are some aggravating features that are absent. For instance, there were no threats of violence or damage to property, nuisance calls, inappropriate use of social media or angry public abuse. Some of the behaviour was opportunistic. Those are relevant matters. But all of that said, this was a sustained course of intruding into the complaint’s life, persisted in after a request to stop stalking and following her which was made in August 2017, and after 14 July 2018 in breach of interim family violence and family violence orders. MH was in a state of continued apprehension. Particularly given the nature of some of the actions involved, such as following by driving, and the length of time over which the course of conduct was pursued, I consider imprisonment is necessary to properly reflect the need for general deterrence and denunciation. However, having regard to the defendant’s personal circumstances and lack of any offending history, the Court is justified in suspending the execution of that term.
Mr Reardon, I have set out what I see to be the essential facts of the matter, your personal circumstances and factors to be taken into account. As I have said, I think a suspended term of imprisonment is appropriate, and that will be coupled with a community correction order. On the indictment, on complaint 6947/19 and charge no 3 on complaint 8559/19 you are convicted and sentenced to 10 months’ imprisonment the execution of the whole of which is suspended on condition you do not commit any offence punishable by imprisonment for a period of 18 months. I make a community correction order for a period of 12 months, a special condition of which is that you must attend educational and other programs as directed by a probation officer. You will have to report to a probation officer at 114 Bathurst Street, Hobart by 5pm tomorrow. In addition, I think it is appropriate to continue the constraints on your behaviour by making a family violence order for a period of 12 months. That will be in the same terms as the order made on 7 May 2019. Given the nature of the summary charge no 2 on complaint 8559/19, it should be dismissed. Lastly, for the sake of completeness, I note that the crime of stalking attracts the operation of the Community Protection (Offender Reporting) Act only if the person against whom the crime is committed is a child. Accordingly the Act does not apply to this case.
APPENDIX
Text messages
The text messages alone or as part of a short chain, total eleven in number. The date range is 27 January 2017 to 27 July 2018. The Crown case is put on the basis that these amount to use of electronic communications in a way that could reasonably be expected to cause the other person to be apprehensive or fearful: see s 192(1)(h). There is a relevant background. MH had suffered as a child and kept a diary said to be “around some of the things from my past to help me sort of work through it from when I was younger.” There is a dispute about how the defendant came to get access to the diary, but the fact is he did. There is also a dispute about the extent to which MH had shared this aspect of her past with other people; MH saying it was very limited, while there was other evidence suggestive of it being shared by her with some close work colleagues. In any event, MH interpreted some of the things said in the texts as threats to reveal this matter or in some way use it against her. In general terms, the text messages arise from parenting issues. In particular, the shared care arrangements seemed to have caused difficulty and more particularly, L seems to have been in need of a specialist attention, with the defendant clearly taking the view that MH was not doing what was required in terms of ensuring attendance at appointments with health care professionals. There is no doubt that the language the defendant uses in many of the texts is harsh if not brutal, insulting and demeaning. He put this down to continuing frustration in trying to get MH to do what he thought needed to be done about L’s care. Focus falls on a text of 3 March 2017 which included a photo of a part of the page of the diary. The defendant told MH she had no compassion for their daughter’s psychological physical health and that he could not really expect someone with borderline personality disorder to act reasonably. Having said he wanted L back in his care, he goes on to say that MH’s lies and manipulation are bringing her down “and I will not protect you anymore or hide the truth from those around you associated with [L]”. A later text referred to taking steps to ensure that L and he can live in peace, and to seeking help from the Family Court “where the parents past history is thoroughly scrutinised and cross-examined” so as to expose her for what she was; the only thing stopping him from exposing her for what she was is the love of his daughter and his respect and love for MH’s sister and partner. The test is an objective one but relates to the particular person. Quite understandably, MH was sensitive about the use and the general dissemination of the type of information in the defendant’s possession. Although I am satisfied that the information was not as confined as MH suggested, I am satisfied that the text of 3 March 2017 and one or two of the subsequent ones could reasonably be expected to cause MH to be apprehensive about the potential use of the information. It was her personal information to be dealt with as she saw fit. Otherwise, I am satisfied that the messages were of an unnecessarily hostile, aggressive and demeaning nature, and qualify as proscribed communications.
Driving past the house/entering the property
The incident involved the defendant driving past MH’s house three times. As being outside or driving past the address is one of the larger categories, it is convenient to deal with it first. The defendant is said to have driven past about three times, generally around early evening, but MH could not recall what period of time separated the three events. The defendant said he sometimes used that street to get onto Cambridge Road, and that he had a friend who lived in the street who he recalls going to visit once. However he did not remember specifically being there on 3 February. MH said that on 4 February 2017 he was standing outside her home with a thermos and reading a paper. It required cross-examination and the defendant’s evidence to put this in proper context. Shortly before he was seen, he had kept L for longer than had been agreed. On 4 February, he sent MH a text saying he would be outside in 15 minutes to pick L up as he had promised her. MH replied that L would not be going with him. The next text message is one from the defendant saying he was out the front and would wait until L came out. MH threatened to call the police. The defendant texted her the number and said he had spoken to them earlier that day. He waited with a newspaper and a coffee. Police arrived and he was asked to leave and not to come back for 24 hours. Between 11 November 2017 and 12 July 2019 there are six other days on which the defendant is said to have been parked out the front or driven past; two incidents involved driving up and back. The last of those was on 28 June 2018 when TW was at the house putting the bins out as MH was away. As to these matters, there is no reason to doubt the accuracy of MH’s notes or TW’s evidence, having regard to the defendant’s evidence. I am not satisfied that the incident on 4 February 2017 is a relevant action, but I am otherwise satisfied that this type of activity occurred and involved surveillance.
An associated event is an alleged entry into MH’s home on 3 March 2017. Section 192(1)(e) speaks simply of entering the property of the other person which I would have thought was not confined to entering a building, but the issue was fought in relation to an alleged entry into the house. This was another incident arising out of the care of L. On the last occasion on which the defendant had L, he kept her longer than had been arranged. This time, he was expecting to pick her up from school as usual but when he arrived, he discovered that she had been taken by VM, who was an older friend of MH, and a grandmother figure to L. This delayed handover was apparently in response to that of the defendant. I find the defendant was most annoyed and went to the home. Ms M’s evidence was that the defendant was abusive when they spoke through the front door, and that he pushed his way into the house, getting in some three to four metres before she pushed him back out and shut the door. She said he was inside for about five minutes. The defendant said he was not abusive and at no stage entered the house. Strictly speaking, I do not need to resolve the dispute; the defendant was on MH’s property, at least at the front door asking for his daughter. But I should say something about it. I have reservations about Ms M’s evidence. I think it unlikely that she manhandled the defendant from a position about three or four metres inside the house outside the door and shut the door behind him, and her estimated time period I think was a gross over-estimation. However, I am satisfied there was some attempt on the defendant’s part to get inside but it was quickly thwarted. I note that MH was not home and the incident was reported to her, but the police were not notified.
Driving past the intersection
The next type of activity is driving on Cambridge Road past the intersection with MH’s street. The evidence was that the boundary of MH’s home was 47 metres from the line of travel in a general southerly direction on Cambridge Road. The general front area of the house could be seen from Cambridge Road. There are some 12 reported incidents of the defendant driving along Cambridge Road between 10 July 2018 and 2 September 2019; a 14 month period. He was seen looking in the general direction on one occasion but otherwise there is no evidence of him travelling at a low speed or doing anything else which would facilitate surveillance. Police estimated the driving time spent within the 50 metre radius as a couple of seconds. MH reported to police an instance of this conduct on 25 January 2019 but no action was taken as it was regarded as technical breach of the FVO with no further investigation warranted. Given that Cambridge Road is a major access road to Bellerive and to the city from areas such as Warrane, Mornington and beyond, I am not satisfied beyond reasonable doubt that these were intentional activities of the proscribed type. That is not the only rational inference that can be drawn. (I note that, as explained in the comments on passing sentence, a charge for a later incident on 12 July 2019 was laid on 29 July 2019, to which the defendant has pleaded guilty.)
Encounters in and around Eastlands shopping precinct
The next type of activity is being in or around the Eastlands shopping precinct and Rosny bus mall. There are 11 reported incidents on 10 dates between 21 June 2017 and 11 July 2019, with a concentrated period of six occasions between 12 July and 14 August 2018, two on that last date; morning and evening. Predominantly, the actions involve being in the Eastlands shopping precinct including the Rosny bus mall – sometimes driving past, sometimes parked or walking– at a time when MH was with L waiting for the school bus or, having dropped her off at school, waiting for a bus to work. MH said he stared at them and on one or two occasions refused to acknowledge L although she spoke to him. Otherwise there was no conversation. The defendant said that going to the area was part of his morning routine to get a coffee but he did not intentionally go there anticipating MH’s presence and does not recall any incident when L tried to speak to him. There is no reason to reject MH’s evidence about these matters. I found the defendant’s explanation about his presence generally unconvincing. That said, it is reasonably possible that some of the incidents involved coincidental presence, that being the defendant’s primary shopping area and it being usual for him to get a coffee on the way to work. The combined effect of the defendant’s evidence and that of Mr Ransley is that the defendant is a very heavy coffee drinker. I think there other occasions that involved the parties being there coincidentally, but with the defendant taking the opportunity to observe MH with L. I should mention two sightings, one on 6 February 2019 and the other on 11 July. They involved the defendant driving past MH in the morning while she was at a bus stop outside the public pool/sports centre on the Tasman Highway. Initially, MH said in evidence that she would usually catch the bus from that stop having driven to a nearby location after dropping off L. However, later in her evidence having spoken about catching the bus from the Rosny bus mall, she said she had changed to the pool/sports centre because she had been seeing the defendant a lot at the Rosny bus mall. Whatever be the case, I am not satisfied that the defendant driving past that bus stop was a relevant intentional action. The Tasman Highway at that point is the major access point to the Tasman Bridge and to Lindisfarne.
Encounters around workplaces
The next category relates to the defendant being seen in and around the general area of MH’s workplaces and that of TW. By July 2018 MH worked at a building in Salamanca Place. It seems in early 2019 she moved to the 10th floor of 22 Elizabeth Street. From about September 2018 TW worked in the building on Franklin Wharf about a block away from Brooke Street Pier. Counting two instances within a short period of time on the one day, there are thirteen of these occasions; the date range is 7 June 2018 to 6 September 2019. The first involves a sighting by MH of the defendant in a public cafe on the ground floor of her building, from which he left with a coffee and his phone and got into his car, a photo showing this to be parked in a disability parking space. About a month later he was seen in the same parking spot, and about six weeks later, he was seen walking out from the direction of the building. MH said she tried to engage him in conversation but he walked past her mumbling. The following day the defendant drove down Salamanca Place past her building. Later events include the defendant being in Franklin Square in the morning when MH was walking from the bus to work, encounters in the street at lunch time when she was with TW, being parked opposite a building in Brooke Street to which MH took L for a medical appointment and driving off after MH came out, and parking outside TW’s workplace. Included in the lunchtime encounters are two incidents about a month apart; 27 May and 28 June 2019. On each occasion MH and TW were going to and from a Salamanca gym. As to the first occasion, MH said that she had met TW near his work in Franklin Wharf at about 1pm. On the way they saw the defendant outside a bar/café opposite the Brooke Street Pier. He appeared to be to be watching them. At about 2pm on the way back, they saw the defendant on the southern side of Morrison Street – the other side of the block where he had been – and again, he appeared to be watching them. MH said that the defendant had his phone to his ear but she did not hear him speaking although they were about 5 metres or so away. She described him “ducking behind a corner between two buildings when he saw them, and they crossed to the opposite side on the road to avoid him. She said that she remembered this incident quite clearly because she found it distressing. The defendant recalls the incident to the extent of seeing the couple close to about 2.00 pm. He denied being there specifically to watch them, and describes his movement when he saw them as moving to one side of the footpath as they passed. The second occasion is noted in the journal in the form of a copied email from TW but MH did not give any evidence about it. TW said he was leaving his work to meet MH at the gym and saw the defendant standing on the corner at the lights on the other side of the road, smoking a cigarette. This was at about 12.25pm. On the way back from the gym about an hour later, he said that the defendant suddenly came out from behind a building and walked straight towards them. MH briefly said hello but the defendant did not reply and looked angry. Shortly after, the defendant drove past them. The defendant said he had no recollection of this day and that it was possible he was in an area around TW’s work because he did not smoke around the Pier but moved to surrounding areas. As to all these matters generally, the evidence establishes that the defendant suffered a serious back injury in 1997, his disabilities being exacerbated by a major car accident in 2010. I am satisfied he suffers from ongoing pain and although able to walk normally – and walks to assist in pain management – he cannot run. He has a disability parking permit. His work involved him being at a site in South Hobart as well as at the Brooke Street Pier. When working at Brooke Street, he would park his car in disability parking spaces which were subject to a time limit. During the course of the day he would move his car from one to another in the general location. Additionally, his evidence was that he would walk in the area to get a coffee or to smoke a cigarette. He denied knowing where MH worked in July 2018 but I am satisfied he knew from about at least August 2018 that she worked in the area. He agreed that at some point he came to know of where TW worked but was not sure when he found out. As to being in or around MH’s workplace and the café, he said he was just going about his business: getting coffee, using the disability space etc. He said he did not recall seeing MH but agreed that he had encountered her and TW in the street during a lunch period. He had no specific recollections of being in Franklin Square on three separate occasions when MH says she saw him, and has no specific recollection of instances where he is said to have parked his car outside relevant workplaces. The defendant explained sightings of his car generally on the basis that he would have been at work, although two time sheets tendered in his cross-examination showed that he did not work at Brooke Street on some relevant days. Some explanations were offered about why that might be, and evidence was called about separate time sheets depending on which site a person started at for the day. I did not find that evidence to be all that persuasive. Of course the Crown needs to persuade me beyond reasonable doubt of intentionally proscribed actions. The Crown concedes that he may have been in the area for unrelated reasons and going about his own business but that for a “large amount” of the occasions, his purpose was to watch for and monitor MH’s movements. I am not persuaded of that. Franklin Square, Brooke Street Pier and Salamanca Place are within a radius of about 300 metres of so. It is inevitable that people working within that area would not irregularly encounter each other over a lengthy period. That would be so, even accepting that the defendant did not work on a full time basis at Brooke Street Pier but bearing in mind his car parking arrangements. However, I am satisfied that the second and third of his visits to Franklin Square; that is at 8.30am on 12 September and 2 November 2018, involved relevant conduct. I am not persuaded that the first was anything other than a random encounter, but after that he was aware of MH’s potential movements. As to the lunchtime “gym” incidents, I am satisfied only that the defendant was keeping a look out for the couple on the return trip on the first occasion. I think it unlikely that there were two random encounters one hour apart on different sides of the same block, The second one involved a time frame starting half an hour earlier, there is good reason for the defendant being where he was at 12.25 pm, and the encounter on the return walk seems to have been unexpected on his part because he came across the couple having walked around the corner of a building. Given the evidence, I am also satisfied that he engaged in relevant conduct on 4 July 2019 when parking opposite the building to which to which MH was taking L for a medical appointment. Lastly, there is an incident on 6 September 2019 in which the defendant went to the building in Elizabeth Street where MH was then working. That is in the block between Collins and Macquarie Streets. That particular address had been included in a varied family violence order on 7 May 2019, with the defendant was not to go within 50 metres of the building. Because of that, this is one of the summary charges of breaching the order. At about 12.45pm a police officer saw the defendant at the corner of Elizabeth and Collins Streets, not far from the building, and then walk towards the building and into the entrance, and then through an arcade and out a rear entrance from a laneway. CCTV shows him walking without delay or looking around. The defendant was in the city having seen his lawyer. He said that he was parked in Macquarie Street and then went that way as there was a smoking area. His plan was to have a coffee, buy some cigarettes and read the paperwork he had obtained, but as it started to rain he walked towards his car which was in Macquarie Street. He took the shortcut through the building. He denied that he was then aware that MH worked in the building, notwithstanding that the address was specified in the order. Assuming the defendant did know MH worked there, I find it difficult to accept that he walked through the building as he did, on the mere off chance he would see MH. At the same time, I found his explanation for not knowing the terms of the order and for being there not entirely persuasive. All things considered, I do not include this incident as part of the “course of conduct” for the purposes of s 192 of the Code, but it follows he is to be dealt with for the breach. (Of course, as explained in the comments on passing sentence, the defendant was charged with breaching the FVO by being within 50 metres of the building, a charge to which the defendant has pleaded guilty.)
Following MH/TW when driving
Next, there are four alleged incidents of MH and/or TW being followed by the defendant in his car whilst they were driving on the Eastern Shore. The dates are 19 May, 4 June, 15 June and 4 September 2019. There was a sighting of the defendant by MH on 31 July 2018 when he was standing by his stationary vehicle on the side of the East Derwent Highway. I am positively satisfied that the defendant was stopped because of a flat tyre and that he was doing nothing untoward. As to the others, they occur around 8.30 am or between 5.00 and 5.30 pm. On two occasions the defendant was in front of MH and TW, pulled over and then followed them for a time. On the third occasion MH noticed the defendant following, and he then drove very closely behind her. On the last occasion, the defendant followed TW for a distance around several streets on the Eastern Shore. The issue about these remaining incidents was really one of identity. Mr Ransley’s evidence was to the general effect that the vehicle or vehicles used by the defendant in the relevant period was or were owned by his, Mr Ransley’s, family, and used by them concurrently. I have reminded myself of the dangers of identification evidence and carefully scrutinised what MH and TW said. I think it quite unlikely that a person other than the defendant would engage in driving in the manner described on each occasion. I am satisfied the defendant deliberately followed MH and /or TW as described.
Driving close by TW’s home
The next category is that of driving on Grasstree Hill Road, a road that runs parallel to, and is about 50 metres or so away from the street in which TW lived, the suggestion being that he was keeping MH and TW under surveillance. First, there is an incident on 18 August 2018. MH and TW were driving west from TW’s home towards the Bowen Bridge, and saw the defendant driving in the opposite direction. They turned, concerned that he was travelling to TW’s house. On their return trip they saw the defendant driving the other way. The defendant gave the explanation that he was staying at the Prince of Wales Bay home of his friend, Mr Ransley, looking after the place for him. He had left, remembered that he had kept the only key and returned to put it back in its hiding place. The general arrangements were confirmed in evidence by Mr Ransley, although this particular date could not be identified. There are four reports of the defendant driving on Grasstree Hill Road between 2 September and 20 December 2018. I note there was no evidence nor suggestion made of a means by which the defendant could know where TW lived, but the address is specified in a family violence order of 18 April 2019, and the defendant agreed that he knew from at least 7 May 2019 following a further order. Grasstree Hill Road is a major thoroughfare leading off the East Derwent Highway to Richmond. The defendant’s evidence was that he would often use this way to drive to his home at Primrose Sands. The evidence is unclear, but he seems to have lived there from about July 2018. TW’s home address was added to a family violence order in April 2019, and there is no evidence that before that time, he knew where TW lived. I am not satisfied that any of these acts of driving had anything to do with surveillance of MH or TW.
Encounters at parks
Next, there are four instances of turning up at parks where MH and L were; Richmond Park on 28 February and 7 October 2017 and Bellerive Beach Park on 18 November and 21 November in the same year. On the first occasion at Richmond, MH was with her sister and her baby. The defendant was seen just standing watching them for a few minutes. When MH approached he got in a car and drove off. This was confirmed by the sister, HJ. On the second occasion at Richmond MH was there alone with L and the defendant was seen nearby having a cigarette and watching. MH said when they approached him he ran and hid behind a brick wall. On the first date at Bellerive Beach Park, MH, HJ, the two children and HJ’s partner were present. The defendant was seen to drive into the Beach car park, get out of his car and watch the playground. After ten minutes or so he drove out of the car park, parked his car behind that of MH and sat there for another ten minutes or so, appearing to stare at the group. A few days later MH was there with L. The defendant was seen standing next to his car in the carpark smoking a cigarette. She gave no evidence about anything after that point. The defendant provided innocent explanations for being in the two locations on the two occasions. That for Richmond was that generally it was a stopping point on the way from Prince of Wales Bay to his home at Primrose Sands. Mr Ransley gave evidence about being with the defendant on one occasion at Richmond when he saw MH and L but noticed nothing unusual about the defendant’s behaviour, but I doubt whether the incident Mr Ransley spoke of is one of the two relevant ones. The explanation for Bellerive was that at relevant times Mr Ransley was caring for his parents who lived quite close to Bellerive Beach Park, and the defendant would pick him up to go for a drink. However, Mr Ransley agreed that the defendant was able to put his car in the driveway rather than park close by, a matter which tends to undermine the defendant’s explanation. However, I am not satisfied that the defendant followed MH to these locations or that he went there anticipating her presence. There is no evidence suggested of any means by which he could have that information, and none was put to him in cross-examination. I think it is likely that he was in the two areas for reasons unconnected with MH or L and that their presence was quite coincidental. However, I am satisfied that the defendant took the opportunity to observe MH and L for a few minutes on each occasion.
Encounters at school related activities
The next category is one that relates to L’s school and activities. There is some indirect evidence suggesting that in early 2017 the defendant would turn up when MH dropped of L at school but four later specific incidents were canvassed. The first was on 12 August 2017 and involved a public Science Expo on the wharf. MH said that she was there with L when L pointed out the defendant. He followed them for at least 20 minutes to half an hour or so. In evidence-in-chief MH did not mention any interaction between her or L and the defendant, but in cross-examination things became a little unclear. MH said she did not recall L going to the defendant and giving him a hug, at which point she, MH, went to get a coffee. She said she did not remember whether she left L and the defendant together while she had a coffee but went on to say she remembered getting a coffee, and vaguely remembered L saying she had seen her father. The defendant said that he was planning to meet a friend of his and her daughter at the Expo. He arrived before them and noticed MH and L. After spending about five minutes with L, he left and rang his friend to cancel their arrangement. He denied knowing that MH and L would be there either through L or any other means. The next event was what was described as a school book parade/grandparents’ day on 22 August 2018. MH said that there was some communication with the defendant beforehand about who would attend or who would not attend but she did not think a firm position was found. She went with L and saw the defendant there. She asked him to leave at which he become visibly upset and angry. She said that he stayed for about an hour. The diary note states that “a teacher staggered the visits” to L’s classroom but this was not explored in evidence-in-chief. Again, the situation was put in context through cross-examination, the defendant’s evidence and tendered text messages. I am satisfied that on the day before, the defendant sent MH a text message saying he would be there with his mother if she was well enough. He did not receive a response. In evidence he explained that he went alone as his mother was not able to travel. When he encountered MH at the school she was with another woman and two children. MH challenged him about why he was there, and was quite irate. He said he moved away and an arrangement was made by a teacher to attend the classroom at a different time. MH agreed in cross-examination that he waited outside the classroom until she, and those with her, left. On the last two occasions, MH saw the defendant in his car outside when she was dropping off L, or went to a lunchtime assembly. The assembly incident was on 10 May 2019. MH said she saw him sitting in his car watching her when she went in and again when she came out. The defendant said he was in the habit of at times going to the 1.00pm school assemblies to watch L’s activities, and remembered one such time when he saw MH “down in” the assembly hall while he stood at the back exit door. He said he left before she did. MH agreed that she could not rule out that he had been in the assembly. I am not satisfied that the Science Expo was anything other than a chance encounter but I am satisfied that the defendant did not immediately leave as he suggested but took the opportunity to observe MH and L together for a time, although I think for less than the period asserted by MH. The Crown did not press the school book parade incident as involving an intentional prescribed action, and I am not so satisfied. Nor am I satisfied that the school assembly attendance involved following MH or keeping her under surveillance except to the extent I accept he stayed in his car after leaving, and watched MH leave. That leaves the earlier one occasion where he attended the school, quite possibly for the purpose of watching L but took the opportunity to observe MH for a short time.
Children’s Contact Centre
Last, there are four incidents that relate to the Hobart Children’s Contact Centre. By late 2018, the situation had developed in which the defendant’s contact with L was managed by the Centre. The dates are 15 December 2018, 12 January, 15 June and 13 July 2019. The first two events concern contact in a nearby café. Each occasion happened shortly before the scheduled meeting. On the first occasion, the defendant came in to where MH and L were. There is a dispute about the nature of the defendant’s behaviour while in the café, MH saying he became agitated and started muttering and grumbling when he saw her, but that is not the issue. The evidence does not support a finding that he followed her there. It is reasonably possible the encounter was coincidental. On the second occasion he was seen parked outside the café when MH and L drove past on the way to the appointment at the Centre. MH said she thought he should not have been in the area, but agreed in cross-examination that the Centre was well over a kilometre from the café. The defendant said he would have been getting a coffee, does not recall seeing her driving past when he had parked there, and did not expect to see her. He did not dispute that he would have been parked there on the day in question, and that it was the first visit after the earlier encounter. He later said he could not remember actually going into the café but his normal practice was to get a coffee and then walk along the short distance to a supermarket to get some food to take to the visit. The Crown says he ought to have known that MH would be in the vicinity, but I do not think it can be put higher than he ought to have thought of the possibility, and it in any event, that is not the test. It might have been unwise for him to go there at that time but I am not satisfied that he went there with an intention of observing MH. As to the third occasion, MH complains of seeing the defendant driving towards the Centre after she had dropped off L there. As to the last occasion, MH’s complaint is that he walked past her as she was sitting in her car in a nearby street when his contact period had finished and she was waiting to pick up L. In cross-examination MH accepted that there was no means by which the defendant could have known she was parked in that street. The defendant said that Mr Ransley was transporting him as he had no licence at the time. He arranged for Mr Ransley to meet him in the particular street as he could not stay near the Centre. He said that he definitely did not know she would be there. Mr Ransley confirmed the defendant’s version saying that he remembered once seeing MH in a carpark in the particular street as he drove by to pick up the defendant. The evidence does not satisfy me that any of these further incidents involve intentional proscribed actions.
[1] Communications that could reasonably be expected to cause apprehension or fear: s 192(1)(h).