Baines v Woodhouse

[2000] WASCA 55

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BAINES -v- WOODHOUSE [2000] WASCA 55

CORAM:   SCOTT J

HEARD:   15, 22 & 28 FEBRUARY 2000

DELIVERED          :   28 FEBRUARY 2000

PUBLISHED           :  8 MARCH 2000

FILE NO/S:   SJA 1204 of 1999

BETWEEN:   ROBERT BAINES

Appellant

AND

KARL SIMON WOODHOUSE
Respondent

Catchwords:

Appeal against dismissal of complaints - Breach of violence restraining order - Prosecution unable to call person named in complaints - No case submission accepted by magistrate - Error in law - Matter remitted to another magistrate for hearing and determination according to law

Legislation:

Justices Act1902

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Ms C V M Barton

Respondent:     Ms D M Webb & Mr P A Roth

Solicitors:

Appellant:     State Crown Solicitor

Respondent:     Donna Webb & Associates & Legal Aid Commission

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Talbot v Lane (1994) 14 WAR 120

1. SCOTT J :  This is an appeal against the dismissal of two complaints by a Magistrate.  Those complaints are to be found at 12 of the appeal book. 

2. In those complaints it is alleged that the respondent entered the home of Raime Dorothy Bonning ("Bonning").  On the face of the complaints I agree with the assertions of counsel for the respondent, that it looks as if Bonning is the person protected by the violence restraining order.

3. When one comes to examine that order, that is not in fact the case.  The protected person is clearly shown on the restraining order as being Jazz‑Tyler Woodhouse, date of birth 27 September 1996.  It may be, it may not be, that the complaints are in error.  On the face of it, they appear, at least, to be irregular and that will be a matter which, when the matter is returned to the court, will need to be tidied up, if it is to be tidied up, and it can be the subject of submissions to the Court below. 

4. The prosecution sought to proceed with this case without calling the person named in the complaints, that is, Bonning, and the prosecutor explained why that was so.  Apparently the police had been unable to subpoena Bonning, who, they said to the Court, had moved interstate.  The end result of that was that her Worship seemed to be of the view that the prosecution could not proceed without Bonning being called, and her Worship seems to have expressed that view at 16 and 17 of the appeal book.

5. It seems to me that defence counsel adopted the responsible attitude of saying that he was going to make a no case submission at the end of the prosecution case and her Worship expressly invited defence counsel to make the submission at that stage of the proceedings rather than to wait until the prosecution case had run its course.  Those passages can be found in the course of the transcript in the proceedings in the court below.

6. Whilst I agree that at the end of the day the prosecutor agreed that he would not be offering any evidence, it seems to me that on my reading of the transcript he adopted that attitude - he or she because I do not know if it was a man or a woman - because her Worship said to him, "in which case the prosecution are offering no evidence", a comment with which the prosecutor agreed.

7. The end result of that is that the prosecution never did have their day in court and whilst it is not for me to comment on whether or not the complaints as they are, or as amended, can be made out, it seems to me that the prosecution should be given their day in court so that they can proceed with presenting such evidence as they have before the court below.

8. I would add to that, that I have viewed the videotape of the respondent and if that videotape is accepted in evidence, and I understand that is a live issue which needs to be determined, there is in that evidence which, if accepted, might be capable of being enough to establish the offence - and I put it no higher than that; at its best it might be - but that is a matter at the end of the day for the court below to determine.

9. In the end result I think the appeal should be allowed and the matter should be remitted to another Magistrate for hearing and determination according to law, and that is my view of the matter.