Mock Trial Competition Case Materials 2017 Round 3 · Mock Trial Competition Mock Trial Competition 2017 Round 3 Case Materials The Law Society of Western Australia Page 1 of 14

The Law Society of Western Australia Level 4, 160 St Georges Terrace, Perth WA 6000 | Postal: PO Box Z5345, Perth WA 6831 or DX 173 Perth

Phone: (08) 9324 8600 | Fax: (08) 9324 8699 | Email: [email protected] | Website: lawsocietywa.asn.au

Mock Trial Competition Case Materials 2017 Round 3

Mock Trial Competition

Mock Trial Competition 2017 Round 3 Case Materials The Law Society of Western Australia Page 1 of 14

The State of Western Australia v Fink

Case Summary

This is a criminal prosecution instituted by the Police against the Accused under Section 338E(1) of the Criminal Code for pursuing a person with intent to intimidate.

The accused, GARY FINK, is charged that between approximately 26 August 2016 and 24 September 2016, at various locations in Perth, he pursued another person with intent to intimidate that person contrary to the provisions of Section 338E(1) of the Criminal Code (WA).

The Prosecution must prove each and every element of the offence beyond reasonable doubt.

The charge will be heard by a Magistrate in the Perth Magistrates Court.

The Accused has pleaded not guilty to the charges.

The Prosecution and Defence will receive the following:

1. Summary

2. Magistrates Court Complaint

3. Legal Notes

4. Statement of Prosecution First Witness [Senior Constable NARELLE ALLEN (investigating officer)] Female

5. Statement of Prosecution Second Witness [MADDY FITZPATRICK (Victim)] Female

6. Statement of Defence First Witness [GARY FINK (Accused)] Male

7. Statement of Defence Second Witness [Dr SUSAN RUSSEL (Expert Psychologist)] Female

8. Exhibit (Printout of Screenshot from the official Australian Olympics Team website showing a Message Board for Fan Messages)

PLEASE NOTE

# the above outline is also the order of appearance

# the gender of each witness is fixed in order to avoid difficulties in references to “he/she” etc. Students playing the part of a witness are to adopt the role of male or female as indicated.



Criminal Procedure Regulations 2005

PROSECUTION NOTICE

Western Australia Criminal Procedure Act 2004 Magistrates Court at PERTH No: 2026 of 2017

Prosecution Notice

Details of alleged offence 1

Accused GARY FINK

Date or Period

Between 26 August 2016 and 24 September 2016

Place

Bentley, Cockburn and various other places in the Perth metropolitan area

Description

1. pursued another person with intent to intimidate that person

2. ALTERNATELY: pursued a person in a manner: i. that could reasonably be expected

to intimidate that person, and ii. that does in fact intimidate that

person

Written Law

1. Section 338E(1) of the Criminal Code (WA)

2. Section 338E(2) of the Criminal Code (WA)

Notice to Accused

You are charged with the offence described above, or the offences described in any attachment to this notice. The charge(s) will be dealt with by the above Court.

Accused’s Details 2

Date of Birth 14/07/1986 Male/Female Male

Address 25 Jacaranda Lane, Cockburn

Prosecutor 3

Person issuing this notice 4

Full name NARELLE ALLEN

Official title Senior Constable

Work address Curtin House, 60 Beaufort Street, Perth

Work telephone (08) 9264 7521

Signature N Allen Witness’s Signature4

I C More

JP/Prescribed court officer

Date This prosecution notice is signed on 26 September 2016



LEGAL NOTES

LEGISLATION

Criminal Code Chapter XXXIIIB — Stalking

338D. Terms used (1) In this Chapter —

........

intimidate, in relation to a person, includes —

(a) to cause physical or mental harm to the person;

(b) to cause apprehension or fear in the person;

(c) to prevent the person from doing an act that the person is lawfully entitled to do, or

to hinder the person in doing such an act;

(d) to compel the person to do an act that the person is lawfully entitled to abstain

from doing;

pursue, in relation to a person, includes —

(a) to repeatedly communicate with the person, whether directly or indirectly and

whether in words or otherwise;

(b) to repeatedly follow the person;

(c) to repeatedly cause the person to receive unsolicited items;

(d) to watch or beset the place where the person lives or works or happens to be, or the

approaches to such a place; ….

338E. Stalking (1) A person who pursues another person with intent to intimidate that person or a third

person, is guilty of a crime and is liable —

(a) where the offence is committed in circumstances of aggravation, to imprisonment

for 8 years; and

(b) in any other case, to imprisonment for 3 years.

Alternative offence: s. 338E(2).

Summary conviction penalty:

(a) in a case to which subsection (1)(a) applies: imprisonment for 2 years and a fine

of $24 000;

(b) in a case to which subsection (1)(b) applies: imprisonment for 18 months and a

fine of $18 000.

(2) A person who pursues another person in a manner that could reasonably be expected to

intimidate, and that does in fact intimidate, that person or a third person is guilty of a

simple offence.

Penalty: imprisonment for 12 months and a fine of $12 000.

(3) It is a defence to a charge under this section to prove that the accused person acted with

lawful authority.



CASE LAW The Defence of Acting with lawful authority The test for determining whether an act is done with lawful authority:

In a case to do with a person obtaining access to Commonwealth data without lawful authority Justice Zeeman stated:

“The ingredient of the offence that the access is obtained "without authority" means that it is obtained without permission and, if it is obtained without permission, it is obtained without lawful authority. An act of the type referred to in the section is an offence if it is done without lawful authority or permission.”

Rook v. Maynard (No 2) (Unreported No. LCA 52 of 1994 10/8/94) Supreme Court of Tasmania

Onus of Proving the exception of Lawful Authority:

"The rule … that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be 'subject to ... the defence of insanity and subject also to any statutory exception'. It is made clear … that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused ….., but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. “

Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 per Brennan J.



KEY ELEMENTS OF THE OFFENCE

Offence

To convict the Accused the Prosecution must prove beyond a reasonable doubt:

a) that the Accused pursued (as defined in the section) a person (namely MADDY FITZPATRICK)

AND

b) that the pursuit of her was either:

a. with an intent to intimidate (as defined in the section) that person (s338E(1))

OR Alternatively

b. was in a manner:

i. that could reasonably be expected to intimidate that person, and

ii. that does in fact intimidate that person

(338E(2))

In the alternative offence under s338E(2) the test whether the conduct “could reasonably be expected to intimidate” is whether a “reasonable person” acting normally would expect their conduct to intimidate the particular person who is the object of the conduct.

Prosecution Onus and Standard of Proof: The Prosecution bears the onus of proving, beyond a reasonable doubt, each element of the case against the Accused. Note that for the alternate offence pursuant to s338E(2) it is not necessary to prove that the accused intended to intimidate Ms Fitzpatrick.

Defence

1. The defence raises the issue of acting with lawful authority. The defence bears the onus of proof on this issue.

The defence however only needs to establish the existence of lawful authority on the balance of probabilities.

2. The elements of the offences that the Defence may consider attempting to undermine and cast doubt on include:

a. whether the Accused intended to intimidate Ms Fitzpatrick; and/or

b. whether the Accused’s conduct could reasonably be expected to intimidate; and/or

c. whether Ms Fitzpatrick was in fact intimidated at all.



STATEMENT OF NARELLE ALLEN

I, NARELLE ALLEN, of 84 Colombo Street, Victoria Park in the State of Western Australia, Senior

Constable, say as follows:

1. I am a Senior Constable, No 7879, with the Technology Crime Team of the Western Australia

Police, stationed at Curtin House, 60 Beaufort Street.

2. On Saturday, 22 September 2016 police from the Belmont Police Station received a call from

Ms MADDY FITZPATRICK about her missing cat.

3. Ms Fitzpatrick told the officers that she thought she had seen a red Volkswagen take off just

after she put her cat out.

4. She also told the officers that a couple of hours later she had received an email from

somebody claiming to have found her cat and asking her to come and collect the cat.

5. She told the officers that the email looked like anonymous emails she had been receiving

several times a day for the last few weeks.

6. My colleagues at Belmont told Ms Fitzpatrick not to respond to the email until she heard

further from the Police. They reported the incident to our Team because we deal with cyber

stalking.

7. On Monday morning (24 September) I called Ms Fitzpatrick and arranged to meet with her

when she got home from university at 3:00 pm.

8. I explained why we had become involved. She said that she had felt intimidated by the emails.

Fortunately, she had saved them all on her computer.

9. The last one, about her cat, had an address on it, where the person who had sent it said she

could collect her cat. There was not any name - it was just signed "Hero Worshipper".

10. The address was that for a Mr Gary Fink.

11. On 25 September 2016, I went to Mr Fink's house at 25 Jacaranda Lane, Cockburn.

12. I asked him whether he used the name "Hero Worshipper" in emails. He said that he did, and

had also used that name in fan messages that he posted on the Olympics website.

13. I asked him “have you been writing e-mails to Ms Fitzpatrick?” He freely admitted this; he said

“I started writing ‘heromail’ to her during the Rio Olympics because I hoped she would become

my girlfriend.” He said “at first Maddy always wrote back to me to thank me for my messages.”

14. There was a red Volkswagen outside. He told me that was his car.

15. I asked him why he had parked outside Ms Fitzpatrick's house. He replied “she is beautiful

and I just wanted to see her. I have tried to see her a few times but she never came out when

I was there.”

16. I then asked about the cat. He explained “her cat had come up to me while I was parked

outside her house and had hopped in the car when I opened the door to pat it.”



17. I told him “Ms Fitzpatrick felt threatened by your harassment and you will be prosecuted for

stalking her.”

18. Mr Fink said “I just wanted Ms Fitzpatrick to know I loved her.” He was very cooperative and

freely answered all my questions.

19. I have checked with the Australian Olympic Committee and confirmed that athletes do not

normally personally reply to heromail.

20. There were a broad range of generic response emails that replied automatically to the

heromail to make the senders think the athletes had received the email, and encourage the

senders to keep supporting the team and send more email.

21. The athletes were only given a random collection of their heromail so they could see what sort

of mail was being sent.

22. I declare that this statement is true and correct to the best of my knowledge and belief.

NARELLE ALLEN

30 September 2016



STATEMENT OF MADDY FITZPATRICK

I, MADDY FITZPATRICK, of 50 Haines Street, Bentley in the State of Western Australia, university

student, say as follows:

1. I am a student at the Western Australian Institute of Sport Hockey Centre at Curtin University.

I am in my second year at the Centre.

2. On 19 June 2015 I was selected in the Australian women's hockey team to compete in the

Olympic Games in Rio.

3. We did not play as well as we expected in Rio but the public in Perth still came to the airport to

welcome us back and we also had a terrific civic reception.

4. I now know that the Defendant went to the airport and also the civic reception, but I did not

notice him especially at the time as so many relatives and friends were there.

5. Immediately after I arrived back in Perth I started receiving anonymous e-mails. They did not

have any name or address on them, but just said "Hero Worshipper."

6. The person who was sending me the e-mails knew my name and even knew that my best

friends call me "Mads."

7. He also knew my e-mail address. I don't know how he knew that.

8. The emails had statements directed at me. Almost all had statements such as “Mads you are

so beautiful” and “I love you so much.”

9. In the more recent emails he wrote “I really would like to be your boyfriend.” In one that came

just before my cat Bruno was taken the email read “I have watched you every time you were

on TV and I went to the airport when your team came home from the Olympics but I was too

shy to talk to you.”

10. I found the e-mails really creepy. I didn't even know the guy. He used to write up to a dozen

times every day. He was quite emotional, but I'm not into that kind of thing.

11. He never threatened me or said anything bad, but I still felt intimidated. I didn't know whether

he would do anything worse.

12. It got so that I didn't go out, just to uni. I just got in my car and didn't look around. I made sure

that I locked my door and my windows all the time. I didn't want to come home and find some

creep inside.

13. The last couple of weeks, I noticed a red Volkswagen often parked outside my house. At first I

thought it must be somebody from the block of flats next door as they never seem to have

enough parking spots.

14. However, every time I noticed the car I thought there was somebody inside looking at me, but I

couldn't see his face, just a dark shape. Perhaps he was just wearing dark clothes.

15. It made me really afraid. I called the Police but they weren’t very helpful. They just told me I

should get a restraining order to keep him away from my place.



16. On Saturday 22 September 2016, I had just put Bruno - that's my cat - outside after his

breakfast. A few minutes later I glanced out the window and saw the same red Volkswagen

driving off.

17. A couple of hours later I was checking my emails when a message came about my cat. It was

signed off “Hero Worshipper” and the message read “Your cat is safe with me, I found him in

my car. If you come to my place you can pick him up.” It gave an address.

18. I hadn't realised that Bruno was missing until I got the e-mail. I rang the Police and told them

that my cat had been taken. I also told them about the e-mails. They said not to do anything

until the police contacted me again.

19. On Monday morning, a policewoman came to see me about the e-mails. Fortunately, I had

saved them all, even though I felt like deleting them without opening them. She promised to

get my cat back, too.


MADDY FITZPATRICK

1 October 2016



STATEMENT OF GARY FINK

My name is GARY FINK. I live at 25 Jacaranda Lane, Cockburn, Western Australia. I was born on

14 July 1986:

1. I am a web designer with a firm in West Perth. I live by myself in a house I bought a couple of

years ago in Cockburn. Actually, the bank still owns it. It seems to eat up most of my money.

2. I am keen on sport although I was never particularly good at it. At school I played football and

cricket – well, we all had to. I like watching all sports, though.

3. I was really excited about the Olympics. It was good to see so many Western Australians in

the squad.

4. One day on TV I saw the women's hockey team. There was one girl from Perth I really liked.

She had nice legs and was really pretty. She had a friendly face, too. Her name was Maddy

Fitzpatrick. I wished she was my girlfriend, but I've always been too shy to talk to girls and

they never seem interested in me.

5. At the beginning of August, before the Games started, I saw an advertisement on TV for one

of the Olympic sponsors inviting members of the public to send "heromail" by email to their

favourite Olympic athletes. There was a link put on the Olympic website for this.

6. I sent Maddy a heromail every day. She wrote back every time. The replies varied.

Examples of the words used in the replies included statements such as: “thanks for wishing

me well in my event”, “I look forward to doing well for you and all Australians at the Olympics”

and “your heromail will help all of the athletes to do well.”

7. I thought she must really like me. I also left messages for her on the "Fan Messages" page on

the official Olympics website.

8. Of course, I watched the hockey team whenever they were on TV.

9. When I heard that the Western Australian athletes were arriving home, I went out to the

airport. I planned to talk to Maddy and tell her my feelings. But there were so many people

there and lots of noise and TV cameras and I was embarrassed, so I just stood there and

stared at her.

10. She didn't take any notice of me. She seemed to have lots of friends.

11. I found out her e-mail address and then I started sending her e-mails. I just told her how

beautiful she was and that I wished she was my girlfriend. I was too shy to put my name, but I

told her I loved her.

12. She never wrote to me anymore. I guessed she must be too busy. But I wanted to see her,

so I used to go and park outside her house whenever I had time.

13. I just hoped she would come out and that I could pluck up enough courage to talk to her, but

she never came out when I was there. Sometimes I used to see her at the window. She is so

pretty.



14. On Saturday morning, 22 September 2016, I was parked outside Maddy's house again when

she opened the door and put out her cat.

15. Actually, I didn't see her; I just saw the door open and a black and white cat came outside. It

came over to my car. It was a nice fluffy cat and I opened the door to pat it. It promptly

jumped inside my car.

16. Then I thought, if I take the cat home and send Maddy an e-mail to say I have found it, she will

come and get it and I can talk with her about my feelings.

17. After I got home I gave the cat some milk and then I sent an e-mail to Maddy. I put my

address so she could come to pick up her cat, but she never came.

18. On Tuesday morning a policewoman came to talk with me. She said “Maddy is frightened by

your emails.” I told her, “I didn't do anything bad. I love Mads and just wanted her to be my

girlfriend.” I said, “at first Mads always wrote to me to thank me for my messages, but after

she came back she didn't write anymore.”

19. She said, “what you have been doing is called stalking and you will have to go to court

because you have intimidated Maddy.” I said, “I never meant to do anything bad, all I did was

tell her how much I loved her.”


Gary Fink

(Signature of Gary FINK)

2 October 2016



STATEMENT OF DR SUSAN RUSSEL

My name is Dr SUSAN RUSSEL, and I live at 83 Barsden Street, Cottesloe in the State of Western

Australia.

1. My qualifications to prepare this report are as follows:

MPsych in Clinical Psychology, University of Western Australia in 1972

DClinPsych, University College London (Thesis on "The psychological consequences of

stalking Victimisation" in 1979)

I served as a Psychology Officer in the Australian Army Psychology Corps for 4 years after

I graduated from UWA.

After gaining my doctorate in London, I returned to Perth in 2004 and established a clinical

psychology practice which I still run.

2. I have been asked to undertake a psychological assessment of Mr GARY FINK, who has been

charged with stalking.

3. Cyberstalking is similar to conventional stalking in that it generally involves persistent

behaviour and causes apprehension and fear in the victim.

4. However, it involves new technologies and there are two main forms: email (including SMS)

stalking and internet stalking, with the second form having a more public dimension.

5. In this case, email stalking is the form with which we are concerned. Of course, Mr FINK has

also been charged with a physical stalking offence. I shall therefore confine my Report to

discussion of these two types.

6. Research by Dr Emma Ogilvie at the Australian Institute of Criminology (AIC) has shown that,

despite the sometimes innocent intention of the perpetrator, email harassment represents an

uninvited incursion into a person's private sphere and is therefore likely to make that person

feel threatened.

7. Email stalking is generally about relationships; sometimes about wishing to initiate a

relationship, but more commonly about a relationship that has gone sour. There is frequently

an element of wanting to control the victim.

8. We talk of "erotomania" when a perpetrator believes that he loves the victim (either a 'real'

person or a so-called personality, such as a film star or pop singer). Generally, there is no

intention to harm the victim.

9. I saw Mr FINK at my practice on 3 October 2016. He presented as a shy and insecure young

man. He has never had a real relationship with a woman.

10. As is common in cases of erotomania, Mr FINK focused on his feelings rather than any

harmful effect his activities had on the victim.

11. It is for this reason that specialists in the field argue that the focus should be on the effect on a

reasonable victim rather than on the perpetrator's intent.



12. Since I was not in a position to consider the victim's feelings, I discussed with Mr FINK his

intentions. Like most erotomaniacs, he considered that the persistent pursuit of the victim was

proof of his true affection for her.

13. This is, in fact, quite a common theme in Western culture and it is therefore not so easy to say

that a "reasonable person" would have known that his behaviour would have a harmful effect.

14. Mr FINK did not know that his behaviour was distressing the victim. Quite the contrary, as he

thought that the response to his earlier heromail was inviting him to write again, in effect giving

him permission to send further emails.

15. He thought she had responded to the messages he sent during the Olympic Games. He was

not to know that the responses were mass-produced by an Olympic Committee computer.

16. Mr FINK saw his physical stalking as just another way of showing his love for the victim. In his

eyes, parking outside the victim’s home was no different to him waiting along with hundreds of

others at the airport or with thousands at the civic reception for the Olympic athletes.

17. In my professional opinion, Mr FINK would not have intensified his behaviour to involve any

actual physical violence against the victim.

18. I confirm that I have made all enquiries that I believed desirable and appropriate. To the best

of my knowledge, there are no relevant matters of significance that have been withheld from

this Court.

Dr SUSAN RUSSEL

27 October 2016



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Mock Trial Competition Case Materials 2017 Round 3 · Mock Trial Competition Mock Trial Competition 2017 Round 3 Case Materials The Law Society of Western Australia Page 1 of 14