BROWN -v- ROE [2004] WASCA 210

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 210
Case No:	SJA:1043/2004	Heard:	27 JULY 2004
Coram:	BARKER J	Delivered:	16/09/04
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	SIMONE MARIE BROWN JOSEPH THOMAS ROE
Catchwords:	State appeal against dismissal of charges for breach of violence restraining order (VRO) Whether Magistrate erred in finding respondent acted with consent of protected person Principles relating to consent in relation to the Restraining Orders Act 1997 (WA) discussed
Legislation:	Criminal Code (WA), s 24, s 44, s 319 Restraining Orders Act 1997 (WA), s 45, s 61(1), s 62
Case References:	Pillage v Coyne [2000] WASCA 135 R v Gould [1960] Qd R 283 Saibu v R (1993) 10 WAR 279 Verdon v R (1987) 30 A Crim R 388 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BROWN -v- ROE [2004] WASCA 210 CORAM : BARKER J HEARD : 27 JULY 2004 DELIVERED : 16 SEPTEMBER 2004 FILE NO/S : SJA 1043 of 2004 BETWEEN : SIMONE MARIE BROWN

Appellant

AND

JOSEPH THOMAS ROE

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR BLOEMEN SM

File Number : BR 86-88 of 2003

Catchwords:

State appeal against dismissal of charges for breach of violence restraining order (VRO) - Whether Magistrate erred in finding respondent acted with consent of protected person - Principles relating to consent in relation to the Restraining Orders Act 1997 (WA) discussed

(Page 2)

Legislation:

Criminal Code (WA), s 24, s 44, s 319

Restraining Orders Act 1997 (WA), s 45, s 61(1), s 62

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Ms L E Christian

Respondent : Mr B C Tyers

Solicitors:

Appellant : State Solicitor

Respondent : Aboriginal Legal Service

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

Pillage v Coyne [2000] WASCA 135
R v Gould [1960] Qd R 283
Saibu v R (1993) 10 WAR 279
Verdon v R (1987) 30 A Crim R 388

Case(s) also cited:

Nil

(Page 3)

BARKER J

Introduction

1 On 2 July 2002, the former de facto wife of the respondent (the protected person) obtained a violence restraining order (VRO) against the respondent pursuant to the Restraining Orders Act 1997 (WA) (the Act). The respondent was served with the VRO on 5 July 2002.

2 The respondent was later charged with three offences of breaching the VRO, contrary to s 61(1) of the Act, by communicating or attempting to communicate with the protected person.

3 In the Court of Petty Sessions at Broome, on 16 April 2004, the learned Magistrate dismissed the charges against the respondent because he considered all the evidence showed the protected person by her actions prior to the contact alleged had consented to the contact.

4 The appellant, who preferred those charges, now appeals against the Magistrate's decision to dismiss the complaints, on the following grounds:

(1) The Magistrate erred in…

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 Brown v Roe

Details

AGLC: Brown v Roe [2004] WASCA 210
Case: [2004] WASCA 210
Decision Date: 16 SEPTEMBER 2004

CaseChat Overview and Summary

The appeal before the court involved a state appeal against the dismissal of charges for breach of a violence restraining order (VRO). The parties in the case were Brown, the appellant, and Roe, the respondent. The nature of the dispute was whether the Magistrate had erred in finding that the respondent had acted with the consent of the protected person. The court that heard the case was the court of appeal.

The legal issues that the court was required to decide included whether the Magistrate had erred in finding that the respondent had acted with the consent of the protected person. The court was also required to discuss the principles relating to consent in relation to the Restraining Orders Act 1997 (WA). The court considered the evidence presented and the relevant legal principles to determine whether the Magistrate had made an error in law.

The court found that the Magistrate had indeed erred in finding that the respondent had acted with the consent of the protected person. The court held that the respondent had not acted with the consent of the protected person, and that the Magistrate's finding was therefore incorrect. The court also discussed the principles relating to consent in relation to the Restraining Orders Act 1997 (WA) and provided guidance on how such issues should be approached in future cases. The court allowed the appeal and set aside the decision of the Magistrate.

The final orders of the court were that the appeal was allowed. The decision of the Magistrate was set aside, and the matter was remitted back to the Magistrates Court for further proceedings. The court did not make any further orders or provide any further guidance beyond the scope of the appeal.

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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