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R v Hills
[[2001] 1 FCR 569
Court of Appeal

CRIMINAL LAW, EVIDENCE AND PROCEDURE - HARASSMENT – APPELLANT AND COMPLAINANT COHABITING PARTNERS – COURSE OF CONDUCT ALLEGED MAINLY CONSTITUTING TWO OFFENCES SIX MONTHS APART – APPELLANT CONVICTED OF HARASSMENT AND SENTENCED TO SIX MONTHS IMPRISONMENT – APPEAL AGAINST CONVICTION AND SENTENCE – WHETHER VAGUE EVIDENCE LINKING THE TWO INCIDENTS SUFFICIENT TO COMPRISE A COURSE OF CONDUCT PROTECTION FROM HARASSMENT ACT 1997, S 4(1) AND (4)

The appellant and complainant were partners and had cohabited between March 1998 and October 1999 when the complainant left. The appellant was arrested and interviewed in respect of an alleged rape and two offences of causing actual bodily harm said to have occurred on 30 April and 26 or 27 October 1999 respectively. He was subsequently charged only with harassment. The prosecution made four attempts to settle the indictment before they proceeded to prosecute.

At the hearing of the matter the appellant submitted that there was no evidence that linked the April incident to the October incident and consequently there was nothing to show that they were more than unconnected events. The complainant gave evidence that tended to show a linkage between the April and October incidents but cross-examination revealed inconsistencies between her evidence and earlier affidavits sworn in respect of civil proceedings for an injunction. At the conclusion of the prosecution evidence it was argued by the appellant that there was no case to answer. While it was conceded that there was evidence of assault on 30 April and 27 October 2000, it was submitted that there was no evidence of a course of conduct as required for a charge of harassment. The only evidence of any conduct between those dates was of regular hair pulling, an allegation which had not been particularised in the indictment and which was unreliable and did not in any event amount to the type of incident required to establish it as being part of a course of conduct.

The judge took the view that there was ample prima facie evidence to go before the jury and that if the jury were satisfied about the allegations they could convict. The appellant was subsequently convicted and sentenced to six months’ imprisonment. He appealed against both conviction and sentence and argued that in order to constitute the offence of harassment there had to be conduct on at least two occasions which constituted a course of conduct.

Held – Harassment was a particular and discrete offence, removed from the normal offences of specified violence in that the basic ingredient of the offence required a course of conduct which the person knew or ought to have known would cause the other to fear that violence would be used on each of those occasions. In the present case it was clear at the close of the prosecution’s case that the complainant herself was concentrating on and most affected by two incidents which were some six months apart. Evidence she gave as to linking incidents was vague and her contradictory statements placed her credibility in question. Although there was clear prima facie evidence that actual bodily harm had separately taken place in April and October 1999, given the particular nature of the offence of harassment the evidence did not provide sufficient linkage between the two offences and the case should not have gone to the jury. Accordingly the appeal would be allowed.

Per curiam. The 1997 Act was intended for the ‘stalking’ type of offence. That is not to say that it is never appropriate to charge a person who is making a nuisance of himself to his partner or wife when they have become estranged but in a situation where the parties are frequently coming together and intercourse is taking place it is unrealistic to think that it falls within the stalking category which postulates a stranger or an estranged spouse.