Carnes v Visser

[2000] TASSC 136

[2000] TASSC 136

CITATION:                 Carnes v Visser [2000] TASSC 136

PARTIES:  CARNES, Paul Douglas
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 12/2000
DELIVERED ON:  28 September 2000
DELIVERED AT:  Burnie
HEARING DATES:  13 September 2000
JUDGMENT OF:  Slicer J

REPRESENTATION:

Counsel:
             Appellant:  S G Wright
             Respondent:  M P Shirley
Solicitors:
             Appellant:  Temple-Smith Barclay
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 136
Number of Paragraphs:  15

Serial No 136/2000

File No LCA 12/2000

PAUL DOUGLAS CARNES v CLAAS VISSER

REASONS FOR JUDGMENT  SLICER J

28 September 2000

1. The notice to review claims error in the following terms:

"1The learned Magistrate erred in law and/or in fact in that he so misdirected himself as to the evidence that his finding that the Complaint against the Applicant was proved was unsafe and unsatisfactory in all the circumstances of the case in that:

aThe evidence of the complainant Angelique Titley and prosecution witness Graeme Bruce Titley varied in material particulars such that he could not be satisfied beyond reasonable doubt that the conduct complained of occurred.

bThe conduct complained of and particularized on the complaint could not sustain a charge of harassment."

1. The argument in relation to ground 1(b) is to the effect that since a definition of harass includes "to trouble or vex by repeated attacks", Onions C T, The Shorter Oxford English Dictionary 3rd ed Clarendon Press, Oxford, 1973, there could be no breach of a restraint order by a single course of conduct.  The argument is without merit.  The breach was of a restraint order and although particularisation referred to "harassment", the offence related to the terms of the original order and conduct said to have breached those terms.  No complaint had been made as to the terms or import of the particulars during the course of the hearing and the matter was not argued.  Two answers suggest themselves in relation to the submission.  The complaint itself referred to a number of physical acts which, in themselves, could be said to contribute a series of attacks or making of trouble.  Brown L, The New Shorter Oxford English Dictionary 4th ed Clarendon Press, Oxford, 1993, also refers to "Now freq, subject to constant molesting or persecution."  It is the giving of trouble or stress to another which is the central import of the term.

1. The applicant seeks review of a decision by a magistrate in finding proven a complaint alleging a breach of restraint order, contrary to the provisions of the Justices Act 1959, s106(I). The complaint alleged that the contravention was that of the appellant:

" … harassing Angelique Titley by rushing at a vehicle in which she was seated with [his] right arm raised and right hand clenched in a fist and by making slashing motions across [his] throat and jumping up and down."

1. Evidence was given by the complainant and her husband, whilst the applicant both gave and adduced evidence.  The applicant had declined to take part in an interview with police but when advising an officer of that decision, added that he had not seen the vehicle in which the complainant was a passenger, at the relevant time or at the relevant place.  In his evidence given at the hearing, he stated that he had seen the complainant in the vehicle but denied the relevant conduct.

1. The learned magistrate summarised the evidence of the various witnesses and made reference to the issue of the making of a false denial and concluded:

"There I prefer the evidence for the prosecution to that for the defence in relation to that incident.  There is absolutely no reason whatever if the defendant and his de facto partner are to be believed for him to have even noticed the Titley's car.  Yet he claims to have done so.  And the demonstration given by Mr Titley of how the defendant leaned out and made the arm and fist gesture and slashing motion across his throat was graphic and vivid and impressive in that sense as a recall of a mind picture rather than being in any way redolent of imagination or fabrication, to such an extent that I find it wholly believable, and I accept it.

The prosecution evidence is superior in every respect to that of the defence and his witnesses concerning this particular incident.  And I have already pointed out I hope with sufficient clarity the shortfalls in the defence evidence concerning that particular incident.  I find that complaint proved."

1. The general claim that the finding was "unsafe and unsatisfactory" cannot be sustained.  The approach required of an appellate court in reviewing a decision of a Court of Petty Session in a matter such as this is as stated by the Full Court in Kelly v O'Sullivan (1994) 4 Tas R 446, and it is not necessary to repeat the relevant principles. The ground specifies inconsistencies within and between the testimony. There is little significant inconsistency.

1. The complainant, Angelique Titley, had obtained a restraint order against the appellant.  She stated:

"I believe that was the day that we were asked to come to court.  … as we were driving through past the supermarket and chemist down the main road ¾

Which main road is this? … The main road at Deloraine.  I noticed Paul jump out onto the middle cement section in the middle of the road, the medium [sic] strip is it.  Towards the car, with his fists going and threatening towards the car.  In which case my husband who luckily didn't take too much notice kept driving and you could see him for quite a long time as we were going down the road still jumping up and throwing his arms around behind us threatening.  And then we went to the police station where there were no police at the time and we went to a household which we believed a Deloraine policeman lived in, where there was also nobody that we could get in contact with so we had to continue (inaudible).  Along the way with so many (inaudible) signs I remember that.  And then there's always the finger up and that sort of thing out of the window."

1. The internal inconsistency is said to have been manifested during the course of cross-examination of the complainant.  The transcript of the relevant cross-examination discloses the following questions and answers:

"And am I correct in saying that the Roelf Vos Supermarket is on your right hand side? … Yes.

Mr Carnes, on your evidence, was walking from the Roelf Vos Supermarket, is that correct? … Yes.

Towards the medium [sic] strip? … Mm.

Your vehicle driving as I say in an easterly direction, you accept it's an easterly direction, in an easterly direction, your paths would cross would it not, do you agree with that? … They would have.  They would have if he'd of kept talking.  But there was no reason to pull up for pedestrians, there was no indication - that's not that sort of a road.

I don't understand what you are saying? … Well I don't understand what you are (inaudible).

Well I will say it again.  He's heading, what I would say in a northerly direction ¾ ? … He's walking to start with and we are in our vehicle.  So our paths would not have crossed unless we'd run him over.

If you both continued in the directions you were travelling, at the time you saw each other, had seen each other, the paths would cross would they not? … Possibly because both going across the road and not just going from the medium strip.

Thank you.  I put it to you that Mr Carnes was just travelling - when your car arrived he did not jump onto the road, is that correct? … Incorrect as far as I can recall.

So Mr Carnes did go on the road? … I can't recall whether he jumped onto the road or not, I just recall he was coming from the supermarket to the medium strip.

That's a public street, isn't it? … Yes it is.

And it's your evidence that Mr Carnes made certain gestures to you? … Yes.

I put it to you that he did not? … (Inaudible).

I put it to you that your husband in fact swerved his car at Mr Carnes? …Where the medium strip is it would have been impossible for my husband to swerve the car at Mr Carnes, without causing myself and him probably injury.

So it is your evidence that Mr Carnes did not enter onto the road, on the side of the road where you were travelling? … Yes.

So it's your evidence that Mr Carnes and yourself were travelling in the same direction, your paths would have crossed, is that correct? … Yes.

I put to you that that's incorrect? …I disagree.

Can the witness please be shown this.  I put it to you that your evidence is incorrect? … I disagree.

HIS WORSHIP:  Pardon, what was the answer? … I disagree.

MR WRIGHT:  (Resuming)  So your memory now of the events as opposed to ¾ ? … No because that really is no different to what I am saying.  I am saying we were driving down the road and he approached the medium strip and started that.  I am not saying which way he was going when we got there, but that was not even in my mind.

But you've stated here that their paths would have crossed, you saw him coming across from Roelf Vos? … What I am saying, no, you've just put that to me to say that all right he's walking this way and you're driving this way, does that mean your paths are going to cross.  Well if he'd of kept walking then yes he was headed the right direction.  But as far as where he was actually going afterwards or beforehand or anything like that I have no idea.

I agree with that.  So your memory now as opposed to your memory at the time of events is better, is that what you are saying?

HIS WORSHIP:  No that's not what she is saying, she has just said that the statement she was referred to is the same as what she is now saying in court.

MR WRIGHT:  (Resuming)  I put it to you then that it's not, your memory then as to your memory now, is different, what do you say as to that? … I disagree.

I put it to you that Mr Carnes was in actual fact heading towards the supermarket? … I cannot understand how if he was heading towards the supermarket or why he found it necessary to stop and try and frighten us while we were driving our car down the road in that case.

I put it to you that Mr Carnes in fact did not make any gestures to you? … Well you're wrong.

Were there any other motor vehicles? … Plenty, it was a morning time in Deloraine shopping time, the place is always there rife with shoppers.

I have no further questions your Worship."

1. The witness was confused by the form of the question.  The problem was with the use of the word "converge".  The witness was not stating that the appellant would have made contact with the motor vehicle.  She was referring to direction and had agreed that if the appellant had continued in his path the two lines of direction would have intersected.  She was not stating the intended path of the appellant once he had reached the "medium" (sic).  There was no internal inconsistency in her account.  The second witness was Graeme Titley, the husband of the complainant.  His evidence-in-chief was as follows:

"Mr Titley, if I can take your mind back to 30 September last year, at about 9am, can you tell the court where you were at that time? …(Inaudible) on my way to Launceston.

What was the purpose of your visit to Launceston? … To give evidence in a court case.

And did something draw your attention on the way? … The matter you refer to would be a person jumping out off a traffic island in Deloraine.

And who was that person? … Well it was the man sitting opposite you now.

And what's his name? … Paul Douglas Carnes.

And can you outline to the court in as much detail as you can exactly what you saw? … He leapt out of the traffic island at my vehicle and made a slashing gesture across his throat with his finger and screaming and hollering at me.

Could you hear what was being said? … No not clearly.

Did you have to take any evasive action? … I had to move out away from the traffic island, the natural reaction is to swing the wheel, but not much no.  A couple of inches so that I would swerve away if someone did come off the footpath.  At that stage I didn't even know it was directed at me until I looked in the rear view mirror and seen him still doing it.

And what did you do after that? … Continued towards the Deloraine Police Station.

And what was your intention there? … First, to go to the police station and report the incident and when I found there was no-one at the police station, I turned towards the police officer's house in town and found that that too was empty.  Having no choice but to continue on to court in Launceston I kept going hoping that I would be able to stop at the Westbury Police Station but there were no police officers their either."

1. In cross-examination he stated:

"Where did you first notice Mr Carnes, where was he located? … When or where?

Where? … Deloraine.

Whereabouts? … At the traffic island.

…

It's your evidence that Mr Carnes has jumped from the traffic island, is that correct? ... Yes.  Not jumped, leaned out and stepped from.

So he didn't jump from the traffic island? … Give you an example.

If you wish.  (Witness demonstrates.)  I put it to you Mr Carnes did not do that? … Well I suggest you're wrong."

Any discrepancy is minor.  Mr Titley was the driver of the motor vehicle and might have had a different perspective of the occurrence since he was also paying attention to the course of his own vehicle.

1. Although the appellant and his witnesses gave a different account, their evidence, in turn, differed.  The learned magistrate was entitled to accept the complainant and her husband as credible and accurate witnesses.  The finding was permitted by the evidence.

Sentence

1. The learned magistrate stated in passing sentence:

"SENTENCE - HIS WORSHIP:  Yes stand up please.  Found proved against you is a complaint whereby it was alleged that on 30 September last year you breached a domestic restraint order made against you, in fact made in your presence in court, by harassing Angelique Titley by rushing at a vehicle in which she was seated with your right arm raised and right hand clenched in a fist and by making slashing motions across your throat and jumping up and down.  That is what has been found proved.

Mrs Titley when she was giving her evidence demonstrated that she is fearful of you.  Yes, demonstrated that she was frightened, and this sort of an incident is not anything that is particularly minor.  It is a serious example of a breach of a restraint order and the problem for you is that you have quite a number of convictions for having breached court orders, principally in relation to orders of bail, driving while disqualified for instance and this is yet another example of that sort of thing.  Anything less than a prison sentence, having regard to the seriousness of this particular breach, and having regard to your record, which contains many charges as I've said of breaching a court order, would not be at all responsive.

You are convicted upon the complaint and you are sentenced to a term, I have limited it as far as I feel able to, you are sentenced to a term of six weeks' imprisonment."

1. The appellant, aged 33 at the time of the hearing, had a lengthy record of prior convictions, commencing in 1984.  He has been convicted and jailed on many occasions for offences of violence, dishonesty and disregard for court orders.  Those convictions include 28 for burglary and stealing, eight for assault or damage to property and 12 for driving whilst disqualified.  He has breached the conditions of suspended sentences and terms of bond and failed to appear on numerous occasions.

1. The breach of a restraint order, especially by one with a lengthy history of violence, is a serious matter.  The penalty was appropriate.

1. The motion to review to set aside the conviction and sentence was dismissed at the conclusion of the hearing of the appeal and these are the reasons for such dismissal.