District Court New South Wales Medium Neutral Citation: Dowling v R [2015] NSWDC 205 Decision date: 05 June 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: The convictions entered in the Local Court are set aside. Catchwords: CRIMINAL LAW – appeal against conviction – ongoing conflict between neighbours – behaviour mischievous and uncalled for but without criminal intention – WORDS AND PHRASES – pattern of violence – intimidation Legislation Cited: Crimes (Appeal and Review) Act 2001, s 20 Crimes (Domestic and Personal Violence) Act 2007, ss 7, 9, 10, 13(1), 14(1) Category: Principal judgment Parties: Gail Isabel Dowling (Appellant) Regina (Respondent) Representation: Counsel: A Barber (Appellant) Solicitors: A Baker, Officer of the Director of Public Prosecutions NSW (Respondent) File Number(s): 2014/349168 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 13 April 2015 Before: McCosker LCM File Number(s): 2014/349168 Judgment 1. Ruth Sumpner lived in a house owned by Gail Dowling. Gail Dowling herself lived nearby. Hence they were neighbours as well as being in a landlord and tenant relationship. They fell out. I do not need to dwell on the circumstances but it became serious enough for Ruth Sumpner to approach the Local Court for an apprehended violence order. That order was granted by his Honour Magistrate McCosker on 13 October 2014. 2. Just over a month later, on 25 November 2014, something happened on the property where the two houses were. It led to a complaint to the police by Ruth Sumpner. That in turn led to Ms Dowling being arrested and charged with two offences. 3. The first offence was against s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. It was said that Ms Dowling knowingly contravened a prohibition or restriction specified in the apprehended violence order which had been made against her in the previous months. The second charge was under s 13(1) of the same act. It specified that Ms Dowling had intimidated Ms Sumpner with the intention of causing her to fear physical or mental harm. 4. The case came before Magistrate McCosker in the Local Court here in Taree on Monday 13 April 2015. After hearing the evidence and submissions his Honour found Ms Dowling guilty of both offences. 5. Ms Dowling has appealed to this Court from her convictions on those offences. There is no fresh evidence. I have read the transcript of the evidence before his Honour as well as the exhibits. In addition I have looked at a physical exhibit which comprised a mobile phone. 6. When a person appeals in a case like this, the District Court judge hears the case afresh and makes up his or her own mind about whether or not he or she is satisfied beyond reasonable doubt of the charges. The judge pays due deference to the judgment of the magistrate who was in a position to assess the demeanour of witnesses as a source of assessment of their credibility. 7. I have been assisted by Mr A Barber of counsel, along with his written submissions and by Mr A Baker, the solicitor for the respondent to the appeal who is the Direct of Public Prosecutions. 8. In summary the prosecution case is that Ms Dowling, despite the apprehended violence order, approached the house of Ms Sumpner and looked at Ms Sumpner through a bedroom window. That action was said to be in breach of the clause numbered 13 in the apprehended violence order which provided that Ms Dowling "must not enter or loiter about the premises at which the protected person may from time to time reside". 9. First I should determine, as Mr Baker correctly observed, what happened. Despite a suggestion that Ms Dowling may have mounted a veranda surrounding Ms Sumpner's house, an examination of the evidence shows that that did not occur. Not only that, I accept Mr Barber's submission that the only source of evidence that his client was standing and looking at Ms Sumpner was her response to a leading question. Under cross-examination, and to her credit, as Mr Baker pointed out Ms Sumpner made it clear that Ms Dowling "continued walking after looking through" and that "she didn't stop". Mr Barber's submission, in those circumstances and by reference to some of the descriptions given of his client's actions being a glance, was that nothing more had occurred than a passing glance by his client towards Ms Sumpner's house. 10. Mr Barber argued that that action could not amount to intimidating Ms Sumpner "with the intention of causing the other person to fear physical or mental harm." That would need to be proved beyond reasonable doubt if she is to be found guilty of the offence against s13 of the Crimes (Domestic and Personal Violence) Act. 11. Mr Barber took me to the definition of intimidation which is contained in s 7 of the Act. He argued that the acknowledged glance by Ms Dowling could amount to harassment which is one of the meanings of intimidation. However, as Mr Barber pointed out, this was an isolated act. There was evidence of other events between the two women, but as Mr Baker correctly pointed out, that evidence was relevant only to context. Mr Barber argued that that same evidence must be limited to context. Indeed, he submitted more - that it was not admissible. But he went on to point out that s7(2) means that such evidence of other events cannot be taken into account. That is because s 7(2) allows the Court "to have regard to any pattern of violence". 12. I agree that the evidence of other acts did not amount to violence. Mr Baker pointed out that s 9(3)(d) envisaged that domestic violence extends beyond physical violence. The trouble with that argument is that, as Mr Barber pointed out, this is not a domestic violence offence. It is a personal violence offence. The object of the act in relation to personal violence, which is contained in s 10, does not contain the same distinction. 13. I would not be satisfied beyond a reasonable doubt that any of the behaviour of Ms Dowling before the day in question amounted to a "pattern of violence". Nor would I be satisfied beyond reasonable doubt that the glancing by Ms Dowling towards Ms Sumpner's house on the occasion in question was done "with the intention of causing" Ms Sumpner "to fear physical or mental harm". 14. It may well be open to argue that such a glance was mischievous and uncalled for, but I would need far more evidence than there is in this court to be satisfied that it was done with the intention that I referred to. Accordingly, in due course I will allow the appeal in respect of the offence against s 13 of the Crimes (Domestic and Personal Violence) Act. 15. Mr Baker, correctly in my opinion, argued that even if I allow the appeal regarding the s 13 offence, the s 14 contravention can still be made out. He is right there but I think one of the difficulties lies in the clause of the apprehended personal violence order that provides that Ms Dowling "must not enter or loiter about the premises" where Ms Sumpner was living. It is not clear what premises means in that context. I am certainly not satisfied beyond reasonable doubt that Ms Dowling entered the house, nor am I satisfied beyond reasonable doubt that she stepped onto the veranda. I cannot be satisfied beyond reasonable doubt that she entered the premises. It is also acknowledged that the most that she did was to walk by the house and glance towards Ms Sumpner. 16. I should add in deference to Mr Baker's submissions that he argued that Ms Dowling's credibility was damaged by two aspects of the evidence. One is something that she said to the police when they arrested her about not going onto the veranda. I think that there is an alternative explanation for that which emerged in re-examination. 17. What is clear is that there had been some friction between the parties and as Ms Dowling said, she has been accused many times before. I do not think that there is a problem with her credibility so far as her dealings with Mr Castles were concerned. I think she was engaged in legally risky behaviour in approaching a witness for the prosecution in the days before the case and discussing his prospective evidence. The exchanges of texts which I have viewed do not cause me to seriously doubt her credibility. 18. I should add also that a third aspect of challenge to her credibility was a claimed inconsistency about whether she was going to collect some keys at the time or some cats. She in fact acknowledged both in evidence. There did seem to be an inconsistency, but it is certainly not one that affects her credibility in my opinion. 19. For those reasons I am not satisfied beyond reasonable doubt that Ms Dowling is guilty of the offence against s 14 of the Crimes (Domestic and Personal Violence) Act. 20. The formal order which I make is this. Under s20(1) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the convictions. HIS HONOUR: Both of your clients Ms Dowling and the Director of Public Prosecutions were competently represented and I was assisted by your submissions gentlemen so thank you very much. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2015