Tanner, R, v

Factual and Procedural Background

This is an appeal against conviction with leave of the single judge. On 28 May 2024, the Appellant was convicted of the aggravated offence of stalking contrary to section 4A of the Protection from Harassment Act 1997. The complainant was the Appellant's ex-wife.

The Appellant and the Complainant were married for over 30 years before separating in 2017 and subsequently divorcing. Since the divorce, the Appellant had been convicted of harassment and breaching restraining orders relating to the Complainant, including placing a tracking device on her vehicle in 2020.

The prosecution case at trial was that between 16 November 2022 and 30 January 2023, the Appellant placed tracking devices on the Complainant’s vehicle to monitor her location, causing her serious alarm or distress with a substantial adverse effect on her usual day-to-day activities. The defence denied the Appellant fitted the trackers.

At trial, the Complainant gave evidence, including a video recorded interview. The defence made a submission of no case to answer on the basis that the prosecution failed to prove the Complainant suffered serious alarm or distress impacting her daily life. The trial judge found there was a case to answer and allowed the prosecution to reopen their case and recall the Complainant to give further evidence on these issues.

The Appellant appeals on grounds including that the judge should have upheld the no case to answer submission, should not have allowed the prosecution to reopen their case, and should not have allowed the Complainant to be recalled after observing the trial via video link.

Legal Issues Presented

1. Whether the trial judge erred in refusing the submission of no case to answer regarding the failure to prove serious alarm or distress with substantial adverse effect on the complainant’s day-to-day activities.
2. Whether the trial judge erred in permitting the prosecution to reopen their case after the no case submission.
3. Whether the trial judge erred in allowing the recall of the complainant who had been observing the trial via CVP link.

Arguments of the Parties

Appellant's Arguments

• The prosecution failed to adduce sufficient evidence that the complainant experienced serious alarm or distress affecting her usual daily activities.
• The submission of no case to answer should have been upheld as it was a classic Galbraith limb one case.
• The prosecution should not have been allowed to reopen their case or recall the complainant, as this caused prejudice and was unfair, especially since the complainant had observed the trial proceedings.

Respondent's Arguments

• Serious alarm or distress need not be contemporaneous with the conduct alleged but can be inferred from the complainant’s ongoing fear and reaction to the tracking devices.
• The complainant’s distress was evidenced by her demeanor and her reaction to the discovery of the trackers, including psychological and physical effects described in a written statement.
• The prosecution’s application to reopen the case was justified due to an oversight in not calling the complainant’s written statement earlier.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework of the Protection from Harassment Act 1997, particularly the aggravated stalking offence under section 4A, which requires proof of serious alarm or distress causing a substantial adverse effect on the complainant’s usual day-to-day activities.

The court found that the evidence of the complainant merely noting the Appellant’s car and mentioning it to her sister did not amount to serious alarm or distress. The trial judge’s factual finding on this point was considered erroneous, as the complainant did not contact police or express concern to her sister at that time.

The court expressed caution in accepting the submission that the complainant’s ongoing fear from previous stalking behaviour could support an inference of serious alarm or distress related to the current offence period. The evidence before the jury did not demonstrate a substantial adverse effect on her day-to-day activities during the indictment timeframe.

Regarding the reopening of the prosecution case and recall of the complainant, the trial judge exercised discretion based on the prosecution’s oversight in not leading the complainant’s written statement earlier, the absence of prior challenge to the impact of the harassment, and the ability to manage any prejudice arising from the complainant observing the trial.

Ultimately, the court concluded that the judge should have upheld the no case to answer submission and directed a not guilty verdict on the aggravated stalking charge.

The court refused the prosecution’s application for a retrial, deeming it not in the interests of justice.

However, the court found that the jury could have convicted the Appellant of the lesser offence of stalking under section 2A, and accordingly substituted the conviction and imposed a sentence of 10 months’ imprisonment, reflecting the seriousness of the offence and the Appellant’s antecedents.

Holding and Implications

The court UPHELD the appeal on ground one, concluding that the trial judge erred in refusing the submission of no case to answer on the aggravated stalking charge. The conviction for aggravated stalking was quashed.

The court refused the prosecution’s application for a retrial, deciding it was not in the interests of justice to allow a second prosecution attempt.

The court substituted the conviction with a conviction for the lesser offence of stalking under section 2A of the Protection from Harassment Act 1997 and imposed a sentence of 10 months’ imprisonment, acknowledging the Appellant’s prior convictions and the seriousness of his conduct.

This decision directly affects the parties by reducing the conviction and sentence but does not establish new precedent beyond the application of established principles regarding no case submissions, reopening of prosecution cases, and substitution of verdicts on appeal.