Facebook stalker tells court victim treated actions as 'joke'

A MAN who stalked a schoolgirl through Facebook and text messages believes he should have his conviction quashed because the jury was not aware the victim initially treated it as a "joke".

Paul Malcolm Henderson was sentenced in February to 18 months behind bars after a jury found him guilty of unlawfully stalking a high school student from the Whitsunday's region.

The victim initially responded to his messages in February, 2011, but asked him to stop soon after.

Despite the police intervening, Henderson continued his text messages, which included death threats, until April, 2011.

He launched a bid to have his conviction and sentence overturned in the Court of Appeal in Brisbane on Wednesday.

Henderson's barrister, Timothy Ryan, submitted the Crown in the trial argued all of Henderson's messages sent between February and April, 2011, were capable of constituting unlawful stalking.

But Mr Ryan said the victim acknowledged that in February, 2011, she had probably sent "mixed messages" to Henderson by responding to his communication.

The victim called Henderson on February 27, 2011, and made it clear she did not want to hear from him again.

"Up until that point it was open to the jury that the appellant (victim) was treating the messages as a joke or game," Mr Ryan said.

Mr Ryan said a properly instructed jury would have concluded the message exchanges up until February 27, 2011, might have been seen as "crass or inappropriate" by the victim but "none the less were part of a game" not constituting harassment.

He argued it was impossible to know which messages the jury relied on in reaching its verdict and the judge should have provided the jury with a "definition of circumstances".

But counsel for the Crown, Michael Byrne SC, said it was difficult to see how a definition of circumstances would have helped the jury.

He said the judge directed the jury to consider whether Henderson's conduct would have caused the victim apprehension or fear in reasonable circumstances when weighing up whether Henderson was guilty of unlawful stalking.

The Court of Appeal reserved its decision.

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