Browne v Browne

[2001] WASCA 90

BROWNE -v- BROWNE [2001] WASCA 90

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 90
Case No:	SJA:1211/2000	Heard:	6 FEBRUARY 2001
Coram:	SCOTT J	Delivered:	23/03/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	JOEANNE EVERLYN BROWNE DENIS MAURICE BROWNE
Catchwords:	Appeal Violence restraining order Question of fact Turns on own facts
Legislation:	Restraining Orders Act 1997
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BROWNE -v- BROWNE [2001] WASCA 90 CORAM : SCOTT J HEARD : 6 FEBRUARY 2001 DELIVERED : 23 MARCH 2001 FILE NO/S : SJA 1211 of 2000 BETWEEN : JOEANNE EVERLYN BROWNE

Appellant

AND

DENIS MAURICE BROWNE
Respondent

Catchwords:

Appeal - Violence restraining order - Question of fact - Turns on own facts

Legislation:

Restraining Orders Act 1997

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr B S Hanbury
Respondent : Mr A J Prentice

Solicitors:

Appellant : Beau Hanbury
Respondent : Mossensons

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 SCOTT J: On 6 November 2000, Miller J granted the appellant leave to appeal against the decision of a Magistrate made on 2 November 2000 dismissing an application by the appellant for a violence restraining order. The grounds of appeal are:

"The learned Magistrate erred in law as follows:

(a) In his determination that the incident which allegedly occurred on the 9th July 2000 wherein the Applicant was allegedly assaulted by the respondent was 'not the issue but whether it might occur again' (contrary to s 12(1)(i) of the Restraining Orders Act 1997 ('the Act').

(b) In his determination that 'the evidence must fit in with the case' and that 'even if a Magistrate believes a party it has to be tested against the evidence'.

(c) In his determination that he would not go into all of the evidence as to the alleged assault on the 9th July 2000 but then finding that if the beating was as bad as the applicant alleged, it would cause damage.

(d) In his determination that because the applicant did not produce a medical certificate to corroborate the alleged assault upon her she was therefore not corroborated and lacking in credibility as a witness.

(e) In his determination that because the applicant did not produce a witness to say that she did not have a problem with drugs she was therefore not corroborated and lacking in credibility as a witness whereas it was the case that the allegation of the applicant having a drug problem was first made by the respondent at the hearing. In any event the applicant has never had any drug problem.

(f) In placing undue weight upon answers given by the parties as to the transactions of the joint bank account and what happened to the applicants compensation monies.

The learned Magistrate erred in fact as follows:

(g) In his determination that the respondent was not likely to behave in a manner that could reasonably be expected to

(Page 4)

cause the applicant to fear that the respondent will commit a further violent offence;

(i) having regard to the fact that the applicant gave evidence that the respondent on the 9th July 2000 said whilst beating her 'die';

(ii) having regard to the fact that the applicant gave evidence that she was telephoned by the respondent after the restraining order was initially granted and threatened with the words to the affect 'tell that arsehole of a son of yours that there will be deaths when I return';

(iii) having regard to the fact that the applicant called Mary Hunt to testify that she heard the respondent make the alleged threats;

(iv) having regard to the fact that the learned Magistrate determined that Hunt corroborated the applicant in this regard.

(h) In his determination that it was the applicant who left messages on the respondents telephone message bank facility when there was no evidence of this fact and the respondent agreed under cross examination that it was possible that 'one of his mates' could have telephoned and left the messages.

(i) In all the circumstances, in failing to find that a violence restraining order was necessary in the circumstances.

(j) In his determination that the respondent was a credible witness having regard to the fact that;


(i) the respondent, in evidence in chief alleged that the applicant had a knife during the incident on the 9th July 2000 whereas this was never put to the applicant in cross examination

(ii) the respondent, in evidence in chief alleged that the applicant had a length of timber which she threw at the respondent whereas this was never put to the applicant in cross examination

(Page 5)

(iii) the respondent, in cross examination mentioned that he suspected that the applicant had been using drugs because he found little satchels whereas he had not previously mentioned this in the course of his evidence to that point."

2 The application was made under the provisions of the Restraining Orders Act 1997 ("the Restraining Orders Act") and in the complaint the appellant alleged that the respondent had behaved violently towards the appellant and hit her with a closed fist.

3 The papers reveal that in the lower court the appellant obtained an ex parte order and the matter came before the court on an ex parte basis in the first instance prior to the hearing before the Magistrate the subject of this appeal.

4 The appellant's evidence was that her concern arose out of an incident on 9 July 2000 when the appellant testified that the respondent, who had been consuming alcohol, was involved in an argument with her which resulted in her being struck with a closed fist on the right side of the face. The appellant said that the respondent pushed her down on the ground and pinned her down and sat on top of her. The appellant also testified that the respondent called her names and strangled her by squeezing her throat. The appellant gave further details about the altercation between she and the respondent, including the fact that the respondent had inflicted four or five punches to her face and had told her to "die".

5 In the course of her examination in chief, the appellant was asked about a payment of $20,000 that she received arising out of a worker's compensation claim. An issue arose between the appellant and the respondent as to how that money had been used. The appellant maintained that the respondent had withdrawn and used the money and the respondent maintained that some of it had been taken and used by the appellant. That issue was very much a collateral issue to the matters central between the parties and will be discussed later in these reasons.

6 The appellant also testified that the respondent had telephoned her on her mobile phone when she was at a friend's place and that in the course of that conversation, which was overheard by the appellant's friend, the respondent said:

"You tell that arsehole son of yours that deaths will be incurred when I get back".

(Page 6)

7 The appellant testified that she was in fear for her life and that she was scared of the respondent. In cross examination, counsel for the respondent put to the appellant that she had admitted to the respondent's mother in a telephone call that she was addicted to heroin. The appellant denied that suggestion. It was also put to the appellant that she was the aggressor in the incident on 9 July, and that she had attacked the respondent with a pair of scissors. The appellant also denied that.

8 The appellant was also cross examined about withdrawals from the bank account into which the $20,000 had been deposited and whilst she was able to expressly remember some matters, by and large said that she was vague in her recollection as to withdrawals of money from the bank account.

9 Independent evidence was called on behalf of the appellant from her friend, Mary Martha Hunt ("Hunt") who testified as to the occasion upon which the appellant was at her house and when at the appellant's request she listened to the telephone call in which she heard the respondent say "Tell that arsehole, that son of yours that deaths will be incurred when we get back from Brisbane".

10 In cross-examination Hunt said that she knew the respondent's voice because she had been introduced to him.

11 The respondent also testified at the hearing and spoke about incidents between himself and the appellant when the appellant threatened to take her own life and slashed her wrists in front of him. The respondent testified about other incidents between he and the appellant.

12 In relation to the specific incident, the respondent said that the appellant had told him that she had been using heroin and that she was the aggressor in the incident which went on for about 20 minutes. The respondent's evidence was that it was the appellant who picked up a pair of scissors from the bedroom and attacked him and he said that he pushed her back into the bedroom against the double bed and that she slid down in front of the bed onto the floor in a sitting position. He said that he took the scissors away from her and pleaded with her to settle down and to wake up to herself.

13 It is not necessary to descend into the evidence in any greater detail because that summary of the varying accounts between the appellant and the respondent indicate that they were diametrically opposed accounts.

(Page 7)

14 In his reasons for decision, his Worship correctly referred to the standard of proof as being the balance of probabilities (cf s 11 Restraining Orders Act) and indicated that he needed to look to the history of events between the appellant and the respondent and also to consider threats which, as his Worship expressed it, "act in the future". His Worship also referred to the earlier ex parte matter and said that he had to determine if the earlier ex parte order had been correctly made. In that respect his Worship referred to the fact that he had heard a great deal more evidence than would have been heard on the ex parte application. Complaint is made in the grounds of appeal about this approach but his Worship's reasons do not support the proposition that he acted as a review body.

15 His Worship went on to consider the question of credibility and the question of balancing the evidence. His Worship also referred to the fact that he needed to consider how the evidence fitted in with other aspects of the case. In that respect, much criticism was made by counsel for the appellant as to his Worship's reasoning and indeed some of that criticism, in my view, was well founded. His Worship did refer to a number of matters which were quite irrelevant to the proceedings and they will be considered later in these reasons but in my view his Worship did focus upon the question of credibility. In that respect his Worship said:

"… I think if credibility can be found in this case one way or the other, then that will determine the matter of the rest of it. As far as their evidence individually is concerned, Mrs Browne gave her evidence fairly credibly. Wide-eyed innocence, but there were some things which the court had some doubts about that. There were many things about which she said 'I don’t recollect that'. There were some things she said 'That's a bit vague', and even when it was put to her, 'You say it did not happen, and that's why you don't recollect it? Or it might have happened and you don't recollect it?' and she would answer, 'I don't recollect it'.

16 His Worship was of the view that both the appellant and the respondent gave credible evidence but he said that the appellant's evidence suffered because of her lack of recollection and her evidence about the withdrawals from the bank account.

17 His Worship also referred to the lack of medical evidence in the light of the evidence given by the appellant as to the way in which the attack upon her occurred and he said:

(Page 8)

"I would have thought, if it was that bad, and that direct punches in the face would cause obvious damage, there would have been a doctor's certificate or the doctor might have given evidence, which we didn't get, and in short there's nothing at all to corroborate Mrs Browne's evidence, except this one telephone call, where her friend, Mrs Hunt, agreed with her that the telephone call came from New South Wales, where the respondent said something about, 'that arsehole, your son. There will be deaths when I return'. And that was the only thing on which there was anything of what you'd call corroboration."

18 In the end result his Worship accepted the evidence of the respondent as preferable to that of the appellant and referred to the lack of any evidence corroborating the appellant's version. In that respect his Worship also said:

"Not that there has to be corroboration for Mrs Browne, but a lack of anything else independent to confirm what she has said. And yet there's these several things which really confirm what Mr Browne has said, and that really means that the court would have to find that the evidence of Mrs Browne is just not credible to the extent that the court can accept it."

19 In conclusion his Worship said:

"I'd have to say that the court should not accept her evidence of that assault, and therefore would find, and I do find, that there is insufficient evidence for the court to say on the balance of probabilities that unless restrained he is likely to commit a violent personal offence against her, or would lead it to believe that he might do that."

20 After making those findings of credibility, his Worship dismissed the complaint.

21 Section 12 of the Restraining Orders Act provides:

"(1) When considering whether to make a violence restraining order and the terms of the order a court is to have regard to -

(a) the need to ensure that the applicant is protected from personal violence;

(Page 9)

(b) the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;

(c) the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;

(d) the accommodation needs of the respondent and the applicant;

(e) hardship that may be caused to the respondent if the order is made;

(f) any family orders;

(g) other current legal proceedings involving the respondent or the applicant;

(h) any criminal record of the respondent;

(i) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and

(j) other matters the court considers relevant.

2 A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance."

22 As can be seen from the provisions of s 12(1)(a) the primary consideration for the court is to ensure that the person seeking relief is protected from personal violence. In that respect, in my view, his Worship was not in error in focussing upon that aspect of the application. Of course it was of importance for his Worship to make a finding as to whether or not the specific incident had occurred but, that having been done, it was equally important for his Worship to concentrate upon the need, if any, for the applicant to be protected from personal violence. In my view, his Worship cannot be said to be in error in the way in which he approached the matter.

23 In the course of his reasons, his Worship made a number of unnecessary and gratuitous remarks. In particular, his Worship said:

(Page 10)

"The other thing that damages Mrs Browne's credibility is her recollection, as I have said before, and now it could be with her state that at times things are vague. It was said that every time there has been a big argument she has gone off to Graylands. I've had experience in these things. I worked in a married persons' court - summary relief court - 30 years ago, and I found that every time a woman went to Graylands, and it happened numerous times, she would say, 'See what he's done to me', and when the fellow went to Graylands she'd say, 'Look what I've got to put up with.' And it was sort of becoming faintly amusing."

24 In some respects it was unfortunate for his Worship to make those remarks in the context of a case where the appellant had testified that she had been in Graylands from time to time. There was no evidence whatever to justify the remark that his Worship made and it was insulting to the appellant for the learned Magistrate to have made those remarks in the context of the case. That having been said, however, in my view those remarks were merely a gratuitous aside of no central relevance to his Worship's reasons and could not in any sense be said to have caused a miscarriage of justice.

25 As can be seen from the grounds of appeal set out earlier in these reasons, they substantially challenge the Magistrate's findings of fact and to the extent that they do so, it is not of course open for this Court to review findings of fact open on the evidence.

26 In my opinion it was open to the appellant to have called medical evidence to support her testimony that she was punched during the attack upon her by the respondent. Counsel for the appellant maintained that it was not appropriate to call medical evidence on a case of this type. With respect, in my view, that submission is not correct. There is no reason why medical evidence could not have been called in a case such as this if medical evidence was available. It was for the appellant and her legal advisers to determine the evidence to be placed before the court and in my opinion the view was open to the learned Magistrate that the appellant's evidence as to the nature and extent of the assault would have been more credible had there been supporting medical evidence. Specifically, I do not accept the contention by counsel for the appellant that, "it's just not acceptable to have other people dragged into these episodes" with reference for the need to call a medical practitioner to give corroborative evidence.

(Page 11)

27 I am unable to conclude that any of the grounds of appeal have been made out or that there has been any miscarriage of justice in the conclusion which the learned Magistrate reached. In that respect, I am told by counsel that there is nothing in the Restraining Orders Act which would prevent the appellant from applying for a violence restraining order again should there be any further incident or cause for concern.

28 In my view this appeal should be dismissed.