Blitner v Vanzella
[2012] NTSC 72
•26 September 2012
Blitner v Vanzella [2012] NTSC 72
PARTIES:BLITNER JNR, Donald James
v
VANZELLA, Elisha Jane
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NOS:JA 63 of 2012 (21210334) and
JA 64 of 2012 (21206948)
DELIVERED: 26 September 2012
HEARING DATE: 5 September 2012
JUDGMENT OF: BARR J
APPEAL FROM: LOWNDES SM
CATCHWORDS:
APPEAL – COURT OF SUMMARY JURISDICTION
Domestic and Family Violence Act (NT) – Police DVO not formally confirmed or revoked by Magistrate – Magistrate’s disposition was effective revocation – appellant subsequently charged with breaching a condition of the revoked police DVO – appellant convicted and fined by another Magistrate – no offence committed – appeal allowed
Domestic and Family Violence Act2007 (NT) s 30, s 41, s 44, s 82
Justices Act (NT) s 177(2)(c)
REPRESENTATION:
Counsel:
Appellant:A Hancock
Respondent: O McMahon
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Bar1215
Number of pages: 5
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINBlitner v Vanzella [2012] NTSC 72
No. JA 63 of 2012 (21210334) and JA 64 of 2012 (21206948)
BETWEEN:
DONALD JAMES BLITNER JNR
Appellant:
AND:
ELISHA JANE VANZELLA
Respondent:
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 26 September 2012)
On 21 December 2011 the appellant became subject to a police domestic violence order (a “police DVO”) made pursuant to s 41 of the Domestic & Family Violence Act.
The protected person was Sharon Campion.
The conditions of the police DVO required (inter alia) that the appellant not approach, contact or remain in the company of the protected person when consuming alcohol or when under the influence of alcohol.
Under s 44 Domestic & Family Violence Act the copy of the police DVO given to the defendant is taken to be a summons to the defendant to appear before the Court of Summary Jurisdiction at the nominated time and place for its return, to show cause why the DVO should not be confirmed by the Court.
The return date for the police DVO against the appellant was 10 January 2012.
However, on 6 January 2012, the Katherine Court of Summary Jurisdiction made restraining orders against the appellant on an application for a domestic violence order ( a “CSJ DVO”) made by Sharon Campion herself pursuant to s 30 Domestic & Family Violence Act.
The restraining orders made by the Court on 6 January 2012 did not include “non-intoxication conditions”. Unlike the police DVO of 21 December 2011, the CSJ DVO did not restrain the appellant from approaching, contacting or remaining in the company of the protected person when consuming alcohol or when under the influence of alcohol.
The police DVO duly came before the Katherine Court of Summary Jurisdiction on 10 January 2012. The appellant did not appear. The presiding magistrate was the same magistrate who had made the CSJ DVO against the appellant on 6 January 2012, and clearly remembered what had taken place only four days previously.
The exchange on 10 January between the magistrate and Mr Brown, police prosecutor, was relevantly as follows:-
HIS HONOUR: Mr Blitner was before the court on Friday on application brought by Ms Sharon Campion being conducted by Ms Lissler and orders were made by consent there. They are simple non-violence orders. …. Whereas the orders the police have made include non-intoxication conditions. I don’t think I can really blame Mr Blitner for not turning up today given that he has already consented to some orders. …
HIS HONOUR: And I think perhaps I should ask for a fresh summons to issue in relation to the police orders if the police really wish to pursue that.
MR BROWN: Your Honour, given that, I am willing to concede and have this order struck out given that there is an order in place preventing any harm …
HIS HONOUR: Thanks Mr Brown, we will just allow the police orders to lapse. …
MR BROWN: Thank your Honour.
HIS HONOUR: Okay, no order on file 21143551, there being functional orders on 21143531
It may be noted that the magistrate did not expressly either confirm or revoke the police DVO, the alternatives available under s 82 Domestic and Family Violence Act 2007.
Although his Honour’s intention was to allow the police domestic violence order to lapse, he did not make an express order in those terms. He simply said “no order…..”. Consistent with that, and with his Honour’s intention that the police orders should lapse, he endorsed the court file cover as follows: “No order. Police orders lapse.”
In the circumstances, namely: (1) the prosecutor’s request that the police DVO be struck out; (2) the magistrate’s statement that he would allow the police orders to lapse; and (3) the endorsement on the court file cover referred to in the previous paragraph, I conclude that his Honour’s disposition was an effective revocation of the police DVO.
The effect of that disposition was that, from 10 January 2012, the appellant was not restrained by any DVO from being or remaining in the company of the protected person when consuming alcohol or when under the influence of alcohol.
The appellant was subsequently charged with separate counts of engaging in conduct that resulted in a contravention of the police DVO referred to in par [1] to par [3] above, one count alleged to have been committed on 22 February 2012 and the other on 17 March 2012.
On the first occasion, 22 February, the defendant was in the company of the protected person whilst under the influence of alcohol. He also admitted that he had been drinking chardonnay with friends, one of whom was the protected person.
On the second occasion, 17 March, the appellant was in the company of the protected person and was under the influence of alcohol.
On 23 March 2012 the appellant pleaded guilty in the Katherine Court of Summary Jurisdiction to both the February and March offences. He was convicted and fined. The presiding magistrate was the not the same magistrate who had dealt with the appellant’s matters on 6 and 10 January 2012.
Notwithstanding the appellant’s pleas of guilty, he had not committed any offence. He should not have been charged and should not have been found guilty of breaching a condition of a police DVO which had been revoked prior to the time of the alleged offending conduct.
The appeal must therefore be allowed.
Pursuant to s 177(2)(c) Justices Act, I allow the appeal and set aside the findings of guilt made by the Katherine Court of Summary Jurisdiction on 23 March 2012. I quash the convictions recorded by the Court and also the fine imposed consequent upon such convictions.
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