Bowden v O'Malley
[2015] WADC 28
•5 MARCH 2015
BOWDEN -v- O'MALLEY [2015] WADC 28
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 28 | |
| Case No: | APP:3/2014 | 5 MARCH 2015 | |
| Coram: | BRADDOCK DCJ | 5/03/15 | |
| GERALDTON | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Appeal dismissed Appellant pay respondents costs to be taxed | ||
| PDF Version |
| Parties: | JEFFERSON DAVID BOWDEN NICOLE ANNE O'MALLEY |
Catchwords: | Appeal Extension of time Violence restraining order Alleged error by magistrate in weight attached to evidence Uncorroborated evidence of respondent Bias |
Legislation: | Restraining Orders Act 1997 s 64(1), s 67 Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43, s 50 |
Case References: | Butler v Bennett [2007] WADC 107 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
NICOLE ANNE O'MALLEY
Respondent
ON APPEAL FROM:
For File No : APP 3 of 2014
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE SMITH
File No : GN/RO 326 of 2014
Catchwords:
Appeal - Extension of time - Violence restraining order - Alleged error by magistrate in weight attached to evidence - Uncorroborated evidence of respondent - Bias
Legislation:
Restraining Orders Act 1997 s 64(1), s 67
Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43, s 50
Result:
Extension of time granted
Appeal dismissed
Appellant pay respondents costs to be taxed
Representation:
Counsel:
Appellant : In person
Respondent : Ms Cowan
Solicitors:
Appellant : Not applicable
Respondent : Cowan Legal
Case(s) referred to in judgment(s):
Butler v Bennett [2007] WADC 107
- BRADDOCK DCJ: (This judgment was delivered extemporaneously on 5 March 2015 and edited from transcript.)
1 This appeal concerns violence restraining order proceedings in the Geraldton Magistrates Court between Mr Bowden and Ms O'Malley. Ms O'Malley was the applicant in the court below. A final order was made in the proceedings on 24 October 2014. The matter came before me on 5 March 2015, a form 6 appeal notice having been filed against the decision made by Magistrate Smith.
2 There had been a hearing on 23 October 2014. An order was then made on the following day, 24 October, granting a violence restraining order protecting Ms O'Malley for a period of two years.
3 Briefly the chronology is as follows. I do not understand there to have been any dispute about the relevant dates. These dates are taken from the transcript of the proceedings. The parties, who were married to each other, separated on 10 September 2012.
4 On 4 March 2014 an ex parte interim violence restraining order was granted to Ms O'Malley in the Geraldton Magistrates Court. On 3 July 2014 that violence restraining order was withdrawn and an undertaking was entered into by Mr Bowden. There was on 26 May 2014 an interim hearing, the transcript from which will feature later in these reasons. On 4 August 2014 Mr Bowden, the appellant, visited the school which his two younger children attend.
5 On 8 August 2014 Ms O'Malley made a second application ex parte for a violence restraining order. An order was granted on that date but Mr Bowden indicated his dissent from that order and as a result the hearing took place before Magistrate Smith. On 20 November Mr Bowden filed a notice of appeal. This matter came before Judge Davis in this court on 9 December 2014 for directions.
6 On 7 January 2015 Mr Bowden filed an affidavit in relation to the matter. He should have also by 12 January 2015 filed submissions. On 2 February 2015 the respondent filed submissions pursuant to orders made by Judge Davis. I held a callover on 3 March, and listed the matter on 5 March.
7 An appeal lies to the District Court from a decision of the Magistrates Court in civil proceedings pursuant to s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004.
8 Section 40(4) of that Act provides that the District Court must decide the appeal on the material and the evidence before the Magistrates Court and any other evidence it gives leave to be admitted. Section 50(5) provides that leave may only be given under that section in exceptional circumstances. Where an appeal comes to this court, therefore, this court must decide the appeal on the material that was before the Magistrates Court, except where permission is given to add further material.
9 No formal application has been made in these proceedings to adduce further evidence on appeal. However, the court file shows that at the time Mr Bowden filed his appeal on 20 November, he filed an affidavit as well, which exhibited various documents. These include the school attendance records of his two younger children. Those were documents which were produced during the course of the hearing and were tendered. They became exhibits 1A and 1B.
10 He further attached some text messages between 15 December 2013 and 29 January 2014 which appear to concern arrangements about the children or with the children themselves. There was also listed in that affidavit what appears to be a screenshot from a mobile phone of a 'FaceTime' missed call. There was listed, but not attached, a document described as 'letter from Jo Lohrey Lawyers'. What was attached was a single page from a preparation form for mediation which had a legal aid header.
11 There was evidence about this, to the effect that it was completed by the solicitor for Ms O'Malley in relation to a property mediation. It is not a document signed by Ms O'Malley or indeed, it appears, by the solicitor. Those documents although referred to, except for the school records, did not appear to have been tendered in the court below and neither were they marked in any way for identification.
12 They appear to be the documents to which the witness at the hearing and the magistrate were referred by Mr Bowden, in the context of his cross-examination of Ms O'Malley. It appears from inquiries that I have caused to be made that the actual exhibits which were tendered were returned to Mr Bowden after the appeal was lodged. This must have been an oversight because that should not have occurred. The court should retain exhibits to a matter for the purposes of an appeal. The other documents clearly are required by Mr Bowden for reference because there are references to them in the transcript of the hearing.
13 I am conscious from the submissions that Mr Bowden has filed that he has not got a copy of the full transcript and he remains unrepresented today. In those circumstances, I decided to admit the documents on this appeal for ease of reference, as Mr Bowden impliedly had requested that the court do so, and because they are not in any sense further evidence. They really comprise part of the record. There was no objection on behalf of the respondent to their admission.
14 This appeal is by way of a rehearing. That does not mean that the court starts from the beginning and hears the whole thing all over again. It is not, as they say, de novo. It is necessary that error be demonstrated in the Magistrates Court: Butler v Bennett [2007] WADC 107.
15 Mr Bowden's notice of appeal was filed on 30 November 2011, about three days out of time. It contains some 11 grounds. On 9 December, Judge Davis struck out grounds 6 to 9 and ground 11, leaving six grounds for the appeal.
16 At the same time, she ordered the filing and service of affidavit in relation to the extension of time and submissions by both parties. Counsel for Ms O'Malley filed submissions, as I have already indicated, as ordered. She opposed any extension of time on the basis the court did not have jurisdiction to entertain such an application. Whatever may have been the position historically, s 40(3) of the Magistrates Court (Civil Proceedings) Act has now been amended by statute number 43of 2012, s 6, which makes it quite plain that this court may extend time for appeals under s 40.
17 In Mr Bowden's recent affidavit he set out some of the circumstances in relation to the timing of the appeal notice. He advised that he thought the appeal period commenced with the service on him of the order, notwithstanding he was present when the order was made. Mr Bowden has been unrepresented at all material times. The delay period, in my view, was very short and there was no prejudice to be caused to the respondent in these circumstances. Accordingly, I granted Mr Bowden an extension of time for the filing of his appeal to 20 November 2014, the day upon which it had been filed.
18 On 3 March 2015, I ordered Mr Bowden file brief submissions, which he did. These submissions in part concerned himself, rather than matters in the appeal. The second half of the document indicated he would rely or refer to various documents, which included transcript from 26 May 2014, from 4 March 2014, the first affidavit sworn by Ms O'Malley in support of her first violence restraining order and transcript of the hearing on 23 October, which Mr Bowden said he had not obtained, because he could not afford. He also referred to the 'FaceTime' document and the Act itself.
19 He said he would argue that the violence restraining order was granted without proof. Before Magistrate Smith on 23 October, Mr Bowden, Ms O'Malley and Ms Kenny gave evidence. Ms Kenny is Mr Bowden's current girlfriend. The school attendance records that I have already mentioned in relation to Miley and Bianca were tendered in evidence. The other documents that I have already mentioned were referred to during the cross-examination of Ms O'Malley.
20 Now, prior to the hearing commencing I took the opportunity to read in full the transcript of the hearing and the ex parte hearing on 4 March 2014, together with the transcribed reasons of the magistrate on 24 October 2014. Those were ex tempore reasons following the hearing which took the entirety of the previous day. He then granted a violence restraining order in what are standard terms.
21 Specifically it reads that, except as set out in part B, Mr Bowden should not communicate or attempt to communicate with the person protected by any means whatsoever, including SMS or text messages or electronic means; not enter, remain or loiter on any premises where the person lives or be within 25 metres of the boundary; not approach the person protected within 25 metres or any property of the person with 25 metres, including vehicles; and not to attend the Mount Tarcoola Primary School or the OSCCA day care centre.
22 The exceptions in part B are to communications through legal representation and for complying with orders under the Family Court and similar. The magistrate declined to make an order extending the protection to the two younger children on the evidence that he had heard. He gave reasons for that also. That is not a matter with which this appeal is concerned.
23 There are some six grounds of appeal. The magistrate gave quite extensive reasons which commenced with some background factual matters.
24 He then recited the procedural history and he outlined the allegations that were being made. He referred to the principles relevant in considering such an application before going on to consider in detail the matters that have been raised.
25 The first ground of appeal reads:
Magistrate Smith did not accept the school attendance records as a true copy of children attendance.
26 In relation to this issue Magistrate Smith said on 24 October at ts 11:
There has been reference in cross-examination of the applicant to the school attendance records. Those records have gone into evidence. The applicant did not object to that occurring. The school attendance records do appear to be at odds somewhat with what the applicant has said in her evidence. The applicant has made statements about the children not going to school for periods of time back in May and also after the visit to the school on 5 August. That evidence does not seem to be supported by the school records.
The applicant, in response to that, says that her evidence is correct and the records must be incorrect. No one from the school has been called to give evidence or answer questions about those records – about who keeps them or whether they can be relied upon for their accuracy. Mr Bowden, the respondent, does not and could not be expected to give evidence about whether the girls were at school on a particular day or dates or not.
It is a matter which is difficult to resolve or explain but I must say that having thought about it further and considered the applicant's evidence further, this apparent discrepancy, if it is a discrepancy, does not cause me any concern about the applicant's credibility as a witness or about other aspects of her evidence.
27 Therefore, it is clear that the magistrate had regard to the issues that had been raised and to the fact that those documents had been tendered in evidence. He addressed the issue of the conflict between what they apparently showed as to the attendance of the children and the evidence of Ms O'Malley. He pointed out that there was no evidence that supported the accuracy or the manner in which the records were kept. He did not doubt that they were records kept by the school but did not accept what they said, over the sworn testimony of Ms O'Malley. That is to say, he did not accept that they were a true record of fact although he accepted they were true copies of records.
28 The purpose of the records was to contradict Ms O'Malley when she said the children did not attend the school because they were afraid. The transcript of 26 May 2014 also related to their school attendance and these things were raised in order to seek to contradict Ms O'Malley and thereby undermine her credibility. In my view, however, the magistrate, on the evidence before him, was entitled to come to the conclusions that he did and he gave reasons for them. On the face of it, this ground cannot be made out.
29 Ground 2 reads:
Magistrate Smith did not agree that the transcripts were typed correctly from previous court hearings in relation to the previous VRO and court appearances.
30 Upon hearing from Mr Bowden and upon perusing the transcript of the hearing, it appears that this referred relevantly to only one portion of transcript – that from 4 March 2014, the penultimate paragraph of that page. The passage reads (the magistrate is questioning Ms O'Malley):
When you say 'beat the children', how do you mean he beat them?
31 The answer from Ms O'Malley was:
Well, one time he threw my two-year old against the wall when I wasn't home.
32 That is the portion under dispute. In his reasons for judgment, the magistrate said the following:
There has been some reference to the transcript of the proceedings before this court before a different magistrate ex parte on 4 March. The transcript of those proceedings indicates that on that occasion the applicant said the respondent threw the two-year old child against the wall when she was not home. The respondent denies having done that. The notion that the applicant would fabricate or invent such an incident but then intentionally say she didn't see it because she wasn't there at the time is, in my view, nonsensical.
Errors frequently occur when transcripts are typed up. Persons have to listen to tapes and, in my experience, they often make mistakes about how they think they have heard and how they type it and, in my view, that is the logical explanation for this particular matter. In other words, I am not persuaded. Although the transcript indicates I am not persuaded that the applicant told the court that this incident happened when she was not at home. Her sworn evidence is that she was home and she saw it happen.
33 So, the magistrate accepted the sworn evidence of Ms O'Malley. The ground is an accurate statement in relation to the point: the magistrate did not accept the transcript as being accurate but, in my view, he was entirely at liberty to come to this conclusion on the evidence that he had heard for the reasons that he did. I might add, it is not this court's experience either that transcript is always 100% accurate.
34 Ground 3 says:
Magistrate Smith granted a violence restraining order based on hearsay. Nicole Anne O'Malley didn't have any witnesses or evidence to prove an allegation of violence or danger to herself or the children.
35 Now, in the hearing of this appeal, hearing from Mr Bowden and in exchanges with him, it was apparent that Mr Bowden did not understand the concept of hearsay. What effectively he was saying is contained in the second sentence of ground 3. He was saying that the magistrate granted the final VRO based on uncorroborated evidence of Ms O'Malley, without any further witnesses or documentary proof.
36 The magistrate was conscious of the position in relation to the evidence of Ms O'Malley. At page 11, he said:
Nothing the applicant has said in this court has been corroborated by any other witnesses or by any evidence. Her case stands or falls on her evidence and her credibility. Her evidence was not shaken during cross-examination, in my view.
37 That is a portion that preceded his comments about the transcripts and his comments about the school records and, indeed, comments about the attendance of Mr Bowden at the school. So the position was that the magistrate did not base his final orders on hearsay. He based his final orders on the sworn evidence given by Ms O'Malley as to the facts upon which she relied. There is no rule of law or practice that prevents a magistrate hearing a violence restraining order from basing his findings and granting a violence restraining order on the uncorroborated evidence of an applicant.
38 He was at liberty to accept that evidence without corroboration if he found it to be truthful and compelling. It was sufficient to ground a violence restraining order. Thus, ground 3 is not made out.
39 Grounds 4 and 5 at the appeal were dealt with by Mr Bowden and, indeed, by Ms Cowan for Ms O'Malley as being effectively a joint ground. Ground 4 reads:
Magistrate Smith did not allow me to cross-examine Nicole Anne O'Malley correctly.
40 Ground 5 reads:
Magistrate Smith gave assistance to Nicole Anne O'Malley with question. However, I did not get the same assistance.
41 Leaving aside for a moment what 'cross-examining Ms O'Malley correctly' might be, the transcript shows, between pages 43 and 74, that Mr Bowden did cross-examine Ms O'Malley at length and was assisted to do so by the court. Putting the two grounds together, it would appear that what Mr Bowden was seeking to say that he was not treated fairly by the magistrate and that, in legal terms, might be construed as an allegation of bias.
42 Both parties gave sworn evidence. Both parties were assisted in presenting their evidence in-chief and in cross-examining by the magistrate. I have read the entire transcript. It seems to me in that presentation Mr Bowden was specifically assisted by the court. At one point, he was assisted to a considerable extent, to the point of giving advice to Mr Bowden that he might not want to introduce into evidence a matter that would give support to Ms O'Malley's case. I am referring to page 56 of the transcript where reference was made to an affidavit by his mother-in-law.
43 So although Mr Bowden has not specifically alleged bias, I cannot see any basis for any species of unfairness arising out of the assistance of the court accorded to both parties, both in his general explanations of the conduct of the matter, the purposes of cross-examination or the institution of that assistance in framing questions at times to assist the party who was questioning in such a way as to elicit answers or, indeed, in discussion with the party as to how the issue might be tackled.
44 In my view, there is no substance in those grounds of any unfairness. Neither is there any literal substance in the grounds as they were drafted.
45 Ground 10 reads:
I (Mr Bowden) showed Magistrate Smith a phone call (FaceTime) that I received from Ms O'Malley at 22.21 pm on 9 March 2014. Magistrate Smith did not seem to care about this.
46 This was raised during the course of cross-examination of Ms O'Malley. It was a matter that would have the purpose in cross-examination of trying to undermine the credit of Ms O'Malley by contradicting her or showing that she had malice against Mr Bowden. When the 'FaceTime' call was raised during the course of the hearing there was considerable discussion with the magistrate about what was shown on the screen of a phone, now a screen capture printed out and annexed to Mr Bowden's affidavit of 20 November 2014.
47 The magistrate, at page 69, inquired as to what he was talking about and was told it was a 'FaceTime' message. The magistrate required some assistance to understand what was being referred to and Mr Bowden explained and indicated that he had not answered the message. The point was to establish that Ms O'Malley was trying to contact him at a time prior to the hearing of the final order. In fact, immediately prior, said Mr Bowden, to an interim hearing or a listing hearing.
48 His perception of that was that Ms O'Malley was trying to induce him to breach the order. What then came out at the hearing was evidence in relation to that 'FaceTime' record. Ms O'Malley said that she had not made the call. There was reference to the fact that the call brought up two numbers. There was reference to the fact that one was a work number. Ms O'Malley indicated she blocked Mr Bowden's number and did not receive calls from him. She asserted that she never called him at that time and she had no idea who did.
49 There was no specific mention of this in the reasons of the magistrate but there was a considerable discussion about that call in the course of the proceedings. His Honour clarified with Mr Bowden that he relied on it to suggest that there was an attempt to cause him to breach the violence restraining order. This is something that Mr Bowden emphasised and repeated in submissions before me.
50 The bottom line, however, was that, on the face of it, as it stood before the magistrate and today, the screenshot of the phone does not prove that a call was made by Ms O'Malley. It is not proved independently by any other evidence. In my view, the magistrate was not bound in this context to place any particular weight upon it. If he did not do so, Mr Bowden might perceive that he did not care about it, but he was entitled to give it the weight he thought it deserved or not. So, in my view, that ground cannot be made out.
51 In summary, taken at its highest on all these grounds, Mr Bowden was saying that Magistrate Smith should not have accepted Ms O'Malley's uncorroborated evidence because of the matters that he had raised. When one looks at the magistrate's decision, as a whole, it can be seen that the magistrate was keenly aware of the burden of proof:
It's the applicant that bears the onus of proof (ts 10, final paragraph)
- and that it was a civil standard, and he referred to that as a balance of probabilities, for the applicant to persuade the court as to the truth of what she said. Furthermore, he was acutely aware of the seriousness of making a violence restraining order. He said:
Violence restraining orders are not made lightly. They involve serious restrictions on a citizen's freedom and freedom of movement and they carry also some stigma in some people's minds. I'm acutely aware that not one allegation made by the applicant has been corroborated or supported by other evidence. I'm also aware of the difficult position the respondent is in. Although the burden of proof is on the applicant, the respondent is in a position where it is difficult for him to refute or disprove anything that the applicant says other than simply to deny it, which, of course, is what he has done. (ts 12 final paragraph)
As far as the applicant is concerned, I found her evidence to be credible and believable despite any absence of corroboration. I gained no impression of her that she was prone to exaggeration or that she is motivated by malice or a desire for revenge or some other motive other than a desire to protect herself and her children. Quite frankly, I believed what she said. That means, and I state, I do not believe the respondent when he denies the allegations and I do not believe him when he accuses the applicant of fabricating all those different allegations.
53 He then set out how it was that the evidence that he had heard satisfied the criteria for the grant of a violence restraining order and that he proposed to make such an order. Taking an overview, I conclude that the magistrate considered all the relevant factors that had been advanced before him and weighed them up in coming to his determination.
54 The decision was based upon his assessment of the credit of the witnesses before him. He had the opportunity to observe both parties during a full day's hearing, as well as Ms Kenny.
55 The hearing is not de novo, it's conducted on the materials before the magistrate and the particular advantage that he had in seeing and hearing the parties is not to be underestimated. His decision was based upon credibility. He gave reasons for his decision, especially why some of the matters raised by Mr Bowden did not cause him concern or undermine his assessment of Ms O'Malley as a truthful witness. In my view, great respect has to be accorded to decisions of this nature in the court below and an appeal court will interfere with such a decision in the absence of demonstrable error, bearing in mind the considerable experience of the magistrates in this court in determining matters of this kind.
56 In conclusion, I determine that none of the grounds of appeal can be made out. It was a decision made by the magistrate in knowledge of the relevant facts, weighing up the facts after hearing the evidence and hearing the arguments of both parties. There is no demonstrable error. Taking an overview of the magistrate's determination and the reasons for it, in the circumstances he was plainly right and the appeal is accordingly dismissed.
57 Counsel for Ms O'Malley sought costs of the appeal, including the reserve costs be paid by Mr Bowden. I heard submissions on this application.
58 This is a matter where an appeal has been brought under the Magistrates Court (Civil Proceedings) Act. It is a civil matter. The bringing of an appeal is not a matter to be undertaken lightly and it is not a matter that Mr Bowden was unaware of entailed expense and, indeed, he persisted in the matter even in the absence of a transcript because of his finances. I can understand that Mr Bowden may feel aggrieved by the position in which he is, but he had a number of choices in these matters. In my view, it is appropriate that the costs should effectively follow the event and that Mr Bowden should pay the costs of Ms O'Malley, to be taxed if not agreed. The fact that Ms O'Malley is represented by the Legal Aid Commission does not make the matter free of cost to her or the State.
Result
1. Appellant granted an extension of time to appeal until 20 November 2014.
2. Appeal dismissed.
3. Appellant pay respondent's costs, including any reserved costs, to be taxed, if not agreed.
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