Brown v Roe
[2004] WASCA 210
•16 SEPTEMBER 2004
BROWN -v- ROE [2004] WASCA 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 210 | |
| Case No: | SJA:1043/2004 | 27 JULY 2004 | |
| Coram: | BARKER J | 16/09/04 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| 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
- 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 law in finding that the protected person's earlier course of conduct could create a continuing general consent entitling the respondent to thereafter breach the restraining order.
(2) The Magistrate erred in fact in finding that the protected person consented to the respondent's breaches of the restraining order that formed the subject of the charges.
The question of consent
5 Pursuant to s 62 of the Act, it is a defence to a charge against s 61(1) of the Act if the person bound by a VRO satisfies the Court that he or she "acted with the consent … of the person protected by the order".
6 By s 62 of the Act, read with s 319(2) of the Criminal Code (WA), "consent" in this context means "consent freely and voluntarily given".
7 In this case the Magistrate found that the protected person, by her actions, consented to contact with the respondent.
8 The Magistrate found that there was no dispute that the protected person had contact with the respondent during the period the VRO was in place. However, he found there was a dispute between the parties as to how many times there was contact and whether it was made with the
(Page 4)
- consent of the protected person. He said the protected person stated that any contact she had with the respondent was "by necessity", whereas the respondent stated that it "was otherwise". The Magistrate noted that the witnesses called by the respondent stated that the contact -
" … was on many occasions, and that the [protected person] came to [the respondent's] mother's home, knowing that the [respondent] would be there at times and further, that she went to the place of the employer. Furthermore, the court can take judicial notice that she came to the court with the defendant on one stage, not in relation to this matter, but another matter and sat next to him when the order was in existence."
10 In relation to the question of consent under s 62 of the Act, the Magistrate asked:
"Was consent given by [the protected person] voluntarily, was it given with her knowledge? The [respondent] argued that it was virtually by her exception that he was there on at least seven occasions, by the evidence of the [protected person], that are therefore the order was not in existence, or was not being enforced. Was consent given by words or actions? … it may be by action only that consent is given, not by words."
11 In marking out this approach to the consent issue, the Magistrate referred to Verdon v R (1987) 30 A Crim R 388. The appellant accepts that, for the purposes of s 62 of the Act "consent" can be given by action, as Verdon (supra) demonstrates.
12 However, the appellant contends that, in the context of s 319(2) of the Code (to which s 62(1) of the Act refers) "consent" requires an agreement as to what it is that is being consented to. Generally speaking, that proposition seems unexceptional enough. In Saibu v R (1993) 10 WAR 279 at 291 - 292, Franklyn J had occasion to consider the meaning of the word "consent" as it appears in s 319 of the Code. Having regard to the requirement in s 319 of the Code that the consent in question
(Page 5)
- be "freely and voluntarily given" and the usual dictionary definition of consent, Franklyn J concluded:
"It is clear therefrom that consent requires, in effect, an agreement as to what it is that is being consented to."
14 The proposition put by counsel for the appellant is framed very generally. Probably, this proposition is right; but whether or not consent has been given to any particular contact must be decided on the facts of each case. Ultimately, there is little point in addressing the question whether a "consent" for the purposes of s 62 of the Act can be a "continuing general consent" in the abstract. Rather, it is necessary to have regard to the particular circumstances in each case in which it is said that a person bound by a VRO has acted with the consent of the protected person. Indeed, this is what the Magistrate did in this case, noting that he needed to go to the evidence of the case.
15 It is necessary, then, to consider the findings of fact made by the Magistrate concerning the question of contact and consent. His Worship said, at page 27 of the transcript:
"The [protected person] stated during her evidence in chief and cross-examination that she never gave permission, yet she accepts in cross-examination that she had met the person five to seven times. Again, she states that that was for necessity. The [respondent] states that on many more occasions that [the protected person] went to see him, or he went to see her and there were no complaints. There is no question that on quite a few occasions, money was exchanged in an agreement that they had.
I must say I was very impressed with the [respondent], his demeanour in the witness box and his honesty. I was also impressed with the other [respondent's] witnesses. Certainly I must take into consideration that the [respondent's] mother is family, and it must be very difficult at times that being done on numerous occasions, that they talk in favour or against their
(Page 6)
- family member. [The respondent's] employer gave clear evidence in this court, and I think there was an honest and open evidence that he had seen [the protected person] on numerous occasions.
The prosecution, and I was wrong when I stated it was not, reviewing my notes, the prosecution checked for the definition of numerous, and he stated that once a week, once a month, that she had come quite often. The decision that I must now make is was the consent, as I have found that there was an order in existence, was consent given action, action, or was it given directly by words? The other question I must answer was there an honest and reasonable but mistaken belief by the [respondent] that he could come to visit [the protected person] at any time. I must decide it by law, and law clearly tells me that I must decide that I must be satisfied beyond reasonable doubt that the prosecution has proven its case.
In my view, I find that the prosecution has not proven it case in relation to charge 86, 87, 88. In my view there is ample evidence that consent was given by action, by [the protected person]. I go a step further, it is this court's opinion that the order - - the restraining order was used as a walking stick when it benefited the complainant it would apply, it would not apply if it not benefited it would apply. I therefore find that all three cases will be dismissed."
16 Unfortunately, the learned Magistrate did not in his summing up and findings identify the particular evidence which he considered constituted the "ample evidence that consent was given by action". This means that, on this hearing, the Court must have regard to the evidence actually led by the parties at the hearing in order to determine whether there was evidence to support the findings.
17 What might be said, however, is that nothing in the Magistrate's findings actually states that the protected person by her actions provided the person bound by the order with a "continuing general consent" to make contact with her. That may or may not be the effect of what the Magistrate found, but I am inclined to the view that the Magistrate found, on the evidence, that the protected person had, in fact, consented by her actions to each instance of contact as alleged in the complaints.
(Page 7)
18 It remains important, however, to consider whether the Magistrate erred in fact and law in finding that the respondent acted with the protected person's consent, a consent conveyed by her actions, when he made contact with her. In this regard, whether or not the respondent so acted on each occasion must be considered in light of the evidence relating to each occasion.
The first contact
19 The first contact incident occurred on the morning of 21 December 2002. The evidence of the protected person in relation to this incident was that, at around 4 am, the respondent began banging on the window of the house in which she and her two small children lived. She heard the respondent swearing and cursing and considered he was intoxicated by liquor. She said the respondent called to her "Open the door, I want to see the kids". She said she asked the respondent to go away and told him that she would call. She said after a further verbal exchange between them, the respondent "tried to rip the airconditioner out from the bedroom wall". The protected person said the respondent then broke a glass sliding door, at which point she took her two boys, opened the front door and ran down the street. She said the respondent then chased her down the road, grabbed her by the hair, threw her on the ground and took the youngest boy (who was two years of age at the time, the other being three and a half years of age) from her. Following that, the protected person says she called the police. The protected person was asked whether she gave permission for the respondent to "come around and see you that morning", to which she stated "No. I did not."
20 When cross-examined about this first contact incident on 21 December, the respondent did not deny that he had visited the home of the protected person and the two infant children that day. However, he disagreed with some of the facts alleged by the protected person in her evidence. He told the Court that the protected person had earlier "told me to come around in the morning, so she can go and do her shopping and stuff, and I can look after the kids, because I had a day off that day." He alleged it was not 4 o'clock in the morning when he attended at the house, but that the sun was already up when he got there. The respondent stated:
"The sun was up and it was going on to six, and she told me first in the morning, because I was going out to a party and that."
21 The respondent also denied that he took the smaller child. He contended that the protected person ran off with one child and left the
(Page 8)
- other one with him, "like she always do when we argued." The prosecutor, in cross-examination, asked the respondent whether he later took the child to the protected person's mother's place, to which the respondent answered:
"Well, then … (indistinct) … knew that better … (indistinct) … call the cops on me, I didn't want me and my kid in the back of the paddywagon with me, so I brought to his mum's place and gave her some money, to give to [the protected person]."
"No, I knew later on, when we started to argue, I knew she was going to call the cops. When we're not arguing she don't call the cops. She let me stay there, everything's all right."
23 What might be observed in relation to this first incident is that the Magistrate failed to make any express findings as to whether the protected person did, in fact, invite the respondent to call at her home on the morning of 21 December 2002, as to what time of the day the respondent visited the protected person, as to whether, that if any such request were made by the protected person, the invitation was one that permitted the respondent to call at the protected person's home at any time of the day (if the visit was at 4 am), or as to whether, if the Court were to find on the facts that the protected person had invited the respondent to attend at her home, whether at 4 am or after the sun had come up and the respondent had complied with that request, such invitation and consent were withdrawn at any relevant point after the respondent arrived at the home of the protected person by reason of the respondent's behaviour. None of these issues was addressed by the Magistrate.
24 Because particular findings of fact were not made on the issues, the contention made on behalf of the appellant that the learned Magistrate must be taken to have found that the respondent acted with some general continuing consent to make contact with the protected person has some force to it. However, I incline to the view, as stated above, that the learned Magistrate, in fact, found that, by the actions of the protected person generally speaking, not just in relation to the alleged invitation to call at her home on 21 December 2002, but also on earlier occasions, the respondent acted with her consent on that day. Consequently, it is necessary to consider what the evidence of these other actions of the
(Page 9)
- protected person was in order to determine if the Magistrate's decision is supportable.
25 In that regard, the evidence of the respondent was, and it appears not to have been seriously in contest, that on numerous - at least on a number of - occasions the respondent and the protected person had had contact for a variety of purposes.
26 The respondent's mother gave evidence that she saw the respondent at the protected person's house when she went to visit the grandchildren there. She also said that the protected person and the respondent had contact when the protected person brought the children to visit her at her house.
27 The employer of the respondent also gave evidence of contact between the protected person and the respondent. He said that the protected person visited his business premises on "numerous occasions" and also made a number of telephone calls that he took where she inquired of the respondent.
28 The protected person, when cross-examined, also agreed that there were occasions when she permitted the respondent to be at her residence. She stated:
"I've never invited him to my house since the 1st of July [2002]. There has been occasions that he has been there. He has come to the house and he - - the police haven't been involved because it's been civil, and he's left. Other occasions where it got nasty, were the occasions that the police were called. It - - when he comes to the house, I'm in a very difficult position to tell him to leave 'cos he's a violent person, and in between me asking him to leave and telling him I'm going to call the police, anything can happen. So, I can get him out of the house without a commotion, things run smoothly, then that's - - that's easier for me.
… I'd say four, five times, and on all of those occasions he was only there for 20, 30 minutes max."
- When pressed to confirm that she had allowed the respondent to be at her home on five occasions "in the face of your own restraint order", the protected person replied:
(Page 10)
- "That is correct. But solely because the trouble that it could cause for me to tell him to leave, under the circumstances, it's not always worth my while."
29 In my view, it is not possible, on the whole of the evidence adduced on behalf of the appellant and the respondent at the hearing before the Magistrate, to conclude that the protected person had at any time by her actions (including words) given the respondent a standing right or general consent to make contact with her at any time of his choosing.
30 If it were possible to find on the evidence, which the Magistrate did not do, that the protected person invited the respondent to her home on 21 December 2002, and that the respondent visited according to the terms of that invitation, the evidence also discloses that any such specific invitation or consent to make contact on that morning was withdrawn soon after the respondent arrived and that the conduct of which the protected person later complained was not expressly consented to by her; and nor by her actions could it possibly be said that she expressly or impliedly consented to that contact. In other words, on the morning of 21 December 2002, at the very least, once the protected person asked the respondent to leave her home, the respondent had no cause to remain and the defence of "consent" under s 62 of the Act simply was not available to him.
The second incident
31 Much the same should be said of the other complaints of breach of the VRO brought against the respondent. The second incident occurred on the morning of 29 December 2002, just over a week after the first incident. The protected person gave evidence that, on that morning, not long after 7 am, she was sitting on the veranda of her house when the respondent appeared. Her two boys who were with her ran to him. She said she asked the respondent immediately to leave and he refused, stating that he was the "father of these kids. If I want to come here I can come here." The protected person said she then went inside the house with the children. She thought the respondent had left, but within five minutes he was "back underneath my kitchen window" and verbally abusing her. The respondent, she says, then made reference to the fact that she had already complained to the Court about an earlier breach of the VRO and told her that, because he had already been charged once for breaking the order he "might as well make it worth his while this time". She says he sat down on the veranda and said he would wait for the police, but after a time he got up and left. When asked whether she had consented to him coming to
(Page 11)
- her house on the morning of 29 December, the protected person answered, "No. I did not."
32 When cross-examined about this second incident, the respondent admitted that he did visit the home of the protected person on the morning in question "to see the kids and that, then I left." He agreed that she did not ask him on that occasion to come around. He said that everything was all right and "we have a cup of coffee together". The respondent insisted that, while he was not invited to the protected person's home that day, he went to see the children, there was not a fight between the protected person and himself and that she "went to the beach with the kids and [I] went and done my own thing. Gave her some money."
33 Again, the Magistrate did not make any particular findings of fact concerning this second incident, although it must be concluded he accepted the contact largely as alleged.
34 There is nothing in the general actions of the protected person on the evidence adduced at the hearing before the Magistrate to suggest that she had expressly or impliedly by her actions (including words) invited the respondent to visit on this occasion on 29 December 2002.
35 It is clear from the evidence given by the protected person that she, on a number of occasions, tolerated the unsolicited visits of the respondent because, in her words, it was "not always worth my while" to tell him to leave or call the police or make a scene.
36 In my view, there was, on the evidence, no consent by her actions given by the protected person to the respondent for him to attend at her home on the morning of 29 December 2002.
The third incident
37 The third incident occurred on the morning of 7 January 2003, a little over a week after the second incident. The protected person gave evidence that, at about 6 am on that day while the boys were still asleep, she had taken rubbish out to the rubbish bin and heard her name being called from down the road. It was the respondent, whom she saw. She then says she ran inside her house. The protected person says the respondent then came through the next door neighbour's front yard, yelling and screaming and throwing things around her front yard. She says she yelled out to him to go away or she would call the police and told him to leave. The protected person gave evidence that the respondent was swearing and throwing things around, including a potted plant. She says
(Page 12)
- that she picked up the phone as if to call the police. When asked whether she consented to the respondent being at her home on that occasion, she replied, "No. I did not."
38 The respondent, when cross-examined about this third incident, admitted that he did visit the protected person's home on that day and acknowledged that he "kicked one pot and took off". He said the pot was a plastic flower pot. He gave evidence that he had been drinking that night, but "wasn't drunk that morning". His reason for being at the protected person's home was explained in these terms:
"Well, usually on Sundays she expects me to come round there and get the kids … "
- However, the respondent accepted, when pressed on this point, that the protected person did not ask him to come around at 6 am that morning. The prosecutor put it to the respondent that he was upset because the protected person would go around and see his family, to which he replied:
"Well, no I wasn't upset because of that. I was upset because - - when she told the police on me, the last couple of … (indistinct) … I got locked up, I was upset that why should she be with my family's place where I might end up going, and she knows I'll be going - - I go round there. And she wanted the restraining order … (indistinct) … so she went around to my family and we wouldn't have met up anywhere."
40 On the evidence before the Magistrate, there was no basis to find that the protected person had expressly or impliedly by her actions (including words) consented to this contact with the respondent in the early morning of 7 January 2003.
Conclusion on the question of consent
41 In all of these circumstances, there was no basis in fact for the findings made by the Magistrate that, on each of the three occasions alleged, the protected person had consented by her actions to the contact made with her by the respondent in breach of the VRO.
42 It is plain from what the Magistrate said in his reasons that he held the view that the protected person had elected from time to time to
(Page 13)
- enforce, at her discretion, the terms of the VRO. He said she used it as a "walking stick". It is not immediately apparent to me that that this view is correct. Indeed, it appears to be a gratuitous comment. The explanation given by the protected person as to why, on some occasions, she tolerated the presence of the respondent at her home and, on other occasions, she did not, is quite understandable. In short, she has found it easier to attempt to manage the situation on many occasions when the respondent has called at her home unannounced or uninvited, but on other occasions when has become troublesome and she has invited him to leave, she has found it necessary to complain to the police and enforce the terms of the order.
43 Unfortunately, human relationships are often difficult things to manage. The Act was enacted by the Parliament of this State to ensure that when they break down, persons who are in need of physical protection obtain it. As Miller J observed in Pillage v Coyne [2000] WASCA 135, at [13], "There is no doubt that the Restraining Orders Act 1997 is social legislation of the utmost importance." His Honour noted what was said on the second reading of the Bill in the State Parliament, to this effect:
"This is a matter of particular concern as restraining order[s] play a central role in the legal response to domestic violence by affording what is intended to be ready access to legal protection for victims …
Family or domestic violence is rightly a matter of increasing community concern … "
44 It may be recognised that, in many circumstances, the continuing relationship between persons who were once in a close personal relationship will be strained, especially after a VRO has been granted by a Court. Nonetheless, a person who is bound by a VRO must take all appropriate steps to ensure that the terms of the order are complied with. It may well be that, on some occasions, by virtue of a course of conduct, a person bound by the order may feel entitled to approach physically or telephone a protected person. It may be that a prior course of conduct in some cases implies a consent to approach the protected person in that way, at least initially. But if the protected person makes it plain that she or he does not consent to that contact or that initial contact continuing, then it behoves the person bound by the order to back off and strictly comply with the order.
(Page 14)
45 If the person bound by the order considers that, in all of the circumstances, the order should be varied or discharged because of changed circumstances in the relationship with the protected person, then the person bound should apply to the Court under s 45 of the Act for an order varying or cancelling the VRO. In this way, if in truth there is no continuing need for the VRO, or it ought to be altered by reason of changed circumstances, then it again behoves one or other of the persons affected to apply to the Court for cancellation or variation of the VRO.
46 In my view, it is not appropriate for a Court, while a VRO is in place, effectively to suspend the operation of a VRO by taking the view that a person protected is inclined to use the VRO as a "walking stick", as the Magistrate in this case suggested.
47 In any event, on the facts of this case as presented to the Court, there was no proper factual basis for the Magistrate to conclude that, on each of the three occasions when the respondent made contact with the protected person, he did so with her consent, a consent given by her actions.
48 In my view, while the Magistrate failed to make express findings by reference to the detailed facts or the actions of the respondent on each occasion, the evidence shows that the protected person did not consent by action to the respondent's contact on any of the three occasions in question.
Mistake of fact
49 The question of mistake of fact was also raised as a defence on behalf of the respondent before the Magistrate. His Worship did not need finally to address that defence, because of his finding that the defence of consent was made out. It is, however, appropriate to address that submission now.
50 By s 24 of the Code, a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for any act to any greater extent than if the real state of things had been such as that person believed to exist.
51 The respondent, at the hearing before the Magistrate, contended that he had an honest and reasonable but mistaken belief that the protected person consented to the contact on each of the three occasions. The basis for that belief plainly was said to be the prior regular contact between the protected person and the respondent.
(Page 15)
52 Whether or not the respondent had an honest and reasonable but mistaken belief that the protected person consented to the contact on each of the occasions alleged must be considered in light of the evidence pertaining to each occasion of contact as well as the evidence relating to the previous contact that had occurred between them.
53 The respondent's evidence in relation to the previous contact between him and the protected person suggests that contact was initiated by the protected person on occasions. That evidence has been referred to earlier.
54 However, in my view, it cannot be contended successfully on the facts as adduced before the Magistrate that the respondent had an honest and reasonable but mistaken belief on each of the three occasions in question that he was entitled to be at the home of and make contact with the protected person; and certainly not to remain at her home and in contact with her once she had asked him to leave.
55 There is also some force in the further submission made on behalf of the appellant that any belief that the respondent held at material times was not that the protected person consented to his contact with her on each of the three occasions in question, but only that she would not enforce the VRO. A belief as to the consequences that might flow from a person's actions may be considered different from a belief in a "state of things" within the meaning of s 24 of the Code: see R v Gould [1960] Qd R 283.
56 However, I do not think it is necessary to make what might perhaps be considered a fine distinction in this regard to this case. The facts of the case are such that it cannot be said that, on the evidence before the Magistrate, the respondent held an honest and reasonable but mistaken belief that the protected person consented to the contact made on the three occasions in question.
Summary and orders
57 It follows from the reasons set out above, that I consider the Magistrate erred when he found that there was ample evidence of consent by action on the part of the protected person to each occasion of contact alleged against the respondent.
58 In my view, it cannot be said that the evidence of dealings between the protected person and the respondent which preceded 21 December 2002, afforded any evidence of "consent" for the purposes of s 62 of the Acton each of the three occasions in question.
(Page 16)
59 Further, there is nothing in the circumstances of the contact made on each of the three occasions to suggest that by her actions the protected person consented to contact on those occasions.
60 On the evidence, the Magistrate should have found that complaints numbered 86, 87 and 88 of 2003 were proved and should have recorded convictions.
61 No doubt, the full factual circumstances pertaining to the relationship between a person in the position of the respondent and a person in the position of the protected person in this case must be taken into account when penalty for breach of a VRO is fixed. As a result, in this case, I consider that the appropriate orders should be that the present appeal be upheld, that convictions should be recorded, but that the matter otherwise be remitted to the Magistrate in the Court of Petty Sessions at Broome for consideration of penalty.
62 I will hear from counsel as to the terms of the appropriate orders.