BINDAI -v- ARMSTRONG [2016] WASC 341

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 341
Case No:	SJA:1045/2016	Heard:	20 OCTOBER 2016
Coram:	MARTINO J	Delivered:	20/10/16
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	KEVIN BINDAI KEITH ARMSTRONG MICHAEL DENNIS WILMA MICHAEL RICHARD TYLER
Catchwords:	Appeal against conviction for breaching of restraining order allowed Restraining order was a nullity by reason of lack of jurisdiction to vary order without being satisfied that appellant had been served with summons
Legislation:	Restraining Orders Act 1997 (WA)
Case References:	Bindai v Jugarie [2016] WADC 68 Borsa v The Queen [2003] WASCA 254 Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424 Craig v The State of South Australia (1995) 184 CLR 163 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 Vella v The State of Western Australia [2006] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : BINDAI -v- ARMSTRONG [2016] WASC 341 CORAM : MARTINO J HEARD : 20 OCTOBER 2016 DELIVERED : 20 OCTOBER 2016 FILE NO/S : SJA 1045 of 2016 BETWEEN : KEVIN BINDAI

Appellant

AND

KEITH ARMSTRONG

First Respondent

MICHAEL DENNIS WILMA

Second Respondent

MICHAEL RICHARD TYLER

Third Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE D M WEBB

File No : HC 807 of 2014, HC 375 of 2014, HC 564 of 2014

Catchwords:

Appeal against conviction for breaching of restraining order allowed - Restraining order was a nullity by reason of lack of jurisdiction to vary order without being satisfied that appellant had been served with summons

Legislation:

Restraining Orders Act 1997 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr D D Brunello

First Respondent : Ms L J Dias

Second Respondent : Ms L J Dias

Third Respondent : Ms L J Dias

Solicitors:

Appellant : Aboriginal Legal Service (WA)

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

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

Bindai v Jugarie [2016] WADC 68
Borsa v The Queen [2003] WASCA 254
Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424
Craig v The State of South Australia (1995) 184 CLR 163
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Vella v The State of Western Australia [2006] WASCA 129

1 MARTINO J: By prosecution notice HC807/2014 the appellant, Mr Bindai, was charged that on 10 October 2014 he, having been personally served with a violence restraining order, breached that order by entering and remaining upon an address at Halls Creek and approaching within 20 metres of the person protected contrary to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bindai v Armstrong

Details

AGLC: Bindai v Armstrong [2016] WASC 341
Case: [2016] WASC 341
Decision Date: 20 OCTOBER 2016

CaseChat Overview and Summary

The case of Bindai v Armstrong involved an appeal against the conviction of the appellant for breaching a restraining order. The appellant had been found guilty of contravening a restraining order by the Magistrates Court of Victoria, and subsequently sought to appeal the decision. The respondent, Armstrong, argued that the appeal should be dismissed and the conviction upheld. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria, where the central issue was the validity of the restraining order that formed the basis of the conviction.

The primary legal issue before the court was whether the restraining order was valid, and thus, whether the appellant's conviction for breaching it could be sustained. The court had to determine whether the Magistrates Court had the jurisdiction to vary the terms of the restraining order without first ensuring that the appellant had been served with the summons for the variation. The court also considered whether the failure to serve the summons invalidated the order, rendering the conviction for its breach void.

In addressing the issue, the court held that the restraining order was indeed a nullity as the Magistrates Court did not have jurisdiction to vary the order without first being satisfied that the appellant had been served with the summons. This jurisdictional defect rendered the order ineffective and, by extension, any conviction for breaching it. Consequently, the court found that the appeal should be allowed, and the conviction set aside. The appellant's appeal was thus successful, and the original conviction for breaching the restraining order was quashed.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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