Chelsey (a pseudonym) v Goodwin (a pseudonym) (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Chelsey (a pseudonym) v Goodwin (a pseudonym) (No 2)
Citation:	[2022] ACTSC 364
Hearing Date:	15 December 2022
DecisionDate:	16 December 2022
Before:	Baker J
Decision:	1. The appellant is granted leave to adduce the affidavit of AB, affirmed on 12 December 2022. 2. The appeal is allowed. 3. The orders made by Magistrate Stewart on 24 November 2022 are set aside. 4. The interim order of 20 May 2022 is discharged.
Catchwords:	APPEAL – Appeal from ACT Magistrates Court – appeal against personal protection order made under s 26 of the Personal Violence Act 2016 (ACT) – relevance of the appellant’s capacity to the personal protection order – application to adduce further evidence - error found in Magistrate’s decision
Legislation Cited:	Evidence Act 2011 (ACT), s 13, 91 Crimes Act 1900 (ACT), s 334 Personal Violence Act 2016 (ACT), s 6, 10A, 11, 17, 19, 26, 68, 70, 87
Cases Cited:	AB v CD [2015] ACTMC 9 CDJ v VAJ [1998] HCA 67; 197 CLR 172 CM v TM [2011] ACTSC 53 Critchley v Magistrates’ Court of Victoria [2019] VSC 435 Farthing v Phipps [2010] NSWDC 317 House v The King [1936] HCA 40; 55 CLR 499 Jovanovic v R [2015] ACTCA 29 N v N (No 2) [2015] ACTSC 48 R v Presser [1958] VR 45 TS v DT [2020] ACTCA 43
Parties:	Chloe Chelsey (a pseudonym) Ivan Goodwin (a pseudonym)
Representation:	Counsel B Harders ( Appellant) No appearance ( Respondent)
Solicitors ACT Legal Aid (Appellant) No appearance ( Respondent)
File Number:	SCA 45 of 2022
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 24 November 2022 Court File Number: PPO 438/2022

BAKER J:

Introduction

The appellant appeals under s 85 of the Personal Violence Act 2016 (ACT) (“the Act”) against the imposition of a final Personal Protection Order (“PPO”) imposed on her by Magistrate Stewart (“the Magistrate”) on 24 November 2022.

The PPO prohibits the appellant from:

(a) being in the following particular places, that is Level 1, Westfield Woden, Corner Hindmarsh and Melrose Drive Woden;
(b) engaging in behaviour that constitutes personal violence towards the protected person, including but not limited to the following behaviour: not to talk to or yell at the protected person.

The protected person, who is the respondent to the appeal, was personally served with the appeal papers, but did not appear at the hearing of the appeal.

An appeal under s 85 of the Act is in the nature of a rehearing: see CM v TM [2011] ACTSC 53 at [14], per Refshauge J and TS v DT [2019] ACTSC 295 at [53], per Crowe AJ. As the decision appealed from is discretionary in nature, it is necessary to demonstrate error of the nature described in House v The King [1936] HCA 40; 55 CLR 499.

The appellant relies on ten grounds of appeal. Most of the grounds of appeal contend that the Magistrate did not give sufficient weight to the appellant’s cognitive impairment. It is difficult for such a complaint to establish House error. However, the appellant also seeks leave to adduce further evidence under s 87 of the Act. That evidence concerns events subsequent to the Magistrate’s decision, in support of her grounds of appeal. As the appeal is by way of rehearing, in determining the appeal I “must have regard to the circumstances which exist at the time of the appeal”: CM at [14], citing Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78].

For the reasons outlined below, I have admitted the further evidence sought to be adduced on behalf of the appellant. On the basis of that further evidence, I have found that error is established in the Magistrate’s decision and that the PPO should be set aside.

Background

Factual Background

The appellant is a 56-year-old woman who has a significant cognitive impairment and intellectual disability. She is in receipt of a Disability Support Pension, and is a participant of the National Disability Insurance Scheme.

The respondent is a 30-year-old man, who is an employee of Woolworths in Westfield Woden.

On 20 May 2022, the respondent made an application for an Interim PPO against the appellant pursuant to s 17 of the Act. In his application, the respondent alleged that on 11 May 2022, the appellant verbally abused and physically assaulted him at Canberra Civic Centre. The respondent also alleged that the appellant’s daughter verbally harassed him at the Woden Bus interchange a few days later, on 19 May 2022.

On 20 May 2022, Deputy Registrar Eylward granted the respondent an Interim PPO against the appellant, pursuant to s 19 of the Act. The Interim PPO contained conditions prohibiting the appellant from being on the premises at Woolworths in Woden; being within 10 metres of the respondent (except at a Court or Tribunal proceeding); contacting the respondent (except through a legal practitioner); and engaging in behaviour that constitutes personal violence against the respondent. The Interim PPO remained in place until the final hearing of the respondent's application on 24 November 2022.

The hearing before the Magistrate

Strike out application

At the outset of the hearing for a final PPO, the appellant’s solicitor drew the Magistrate’s attention to evidence that she has a “significant cognitive impairment that precludes her from understanding the contents or consequences of an order.” He submitted to the Magistrate that the Court should exercise its discretion not to make an order under the Act for this reason.

The appellant’s solicitor provided the Magistrate with copies of the decisions of the Chief Magistrate in AB v CD [2015] ACTMC 9, and of Lakatos DCJ in the New South Wales District Court in Farthing v Phipps [2010] NSWDC 317. In each of those decisions, the court declined to make protection orders in circumstances where those orders could not be understood by the respondent to the application.

The Magistrate heard briefly from the respondent. The respondent indicated that the appellant had recently breached the interim order on 13 November 2022 by walking into his workplace (the Woden Woolworths store) before then walking out again. He also said that the appellant would sit outside his workplace and would stare at him, which made him feel uncomfortable.

The Magistrate expressed the view that the respondent had a “legitimate complaint”, before suggesting to the appellant’s solicitor that AB v CDcould be distinguished. In particular, his Honour observed that the granting of an order in AB v CD would have resulted in the respondent being excluded from his home, whereas in the present case:

… the only hardship, and that’s probably poorly expressed, but the single hardship that your client would face would be being subjected to arrest, being brought before the court, and showing that she’s in the category of people not fit to be able to stand trial, if I can use that expression.

The appellant’s solicitor submitted that, as a result of the appellant’s cognitive impairment and previous trauma, she did not have the capacity to “modify her behaviour in any meaningful way”. For this reason, he submitted that there could be “no guarantee that this order would provide any means of protecting [the respondent] or modify[ing] [the appellant’s] behaviour.”

In response, the Magistrate observed that if a PPO were granted, the respondent would have “the comfort of knowing the police will do something about it.”

The appellant’s solicitor submitted that the institution of a protection order would increase the risk of exposing the appellant to the criminal justice system. He submitted that this should also be considered a hardship to the appellant, noting that she is “highly vulnerable” that that there was a risk of “penalising her for her disability.”

The Magistrate said that he did not see any reason not to accept the psychological report of Ms Styles. This report described the appellant’s cognitive impairment and is outlined further below. His Honour also accepted that there may be “significant implications for respondent given her lack of cognitive ability, her high level of dysregulation [and] her low level of understanding”. However, against these matters, the Magistrate found that the “applicant deserves protection and needs protection in circumstances where he alleges there has been verbal abuse at work, continual presence outside his work…” After clarification from the respondent, the Magistrate also noted that there was an allegation of physical violence.

The Magistrate then refused the strike out application.

The appellant’s solicitor indicated that he could not explain the effect of any orders to the appellant, and accordingly could not agree to consent orders. The Magistrate responded:

I haven’t forgotten how difficult it is to have clients with such a low intellectual function. But the courts place a very high expectation on legal practitioners and their ability to explain orders to those that are intellectually disadvantaged.

The respondent’s evidence

The respondent then gave evidence in support of his application for the PPO.

In his evidence, the respondent explained that his first interaction with the appellant had occurred about six or seven years ago, when he started work at Woolworths. He thought that the appellant may have been shoplifting and asked to check her bag. The respondent said that the appellant “has gone off saying she wasn’t stealing at which point I just asked her to leave.” He said that since then, the appellant has “harassed” him about checking her bag. In particular, he said that when he is in other stores and not at work, the appellant would walk past him and say “Are you going to check my bag here too?”

The respondent explained that the incident on 11 May 2022 occurred when he was leaving the Canberra Centre. The appellant was walking into the Centre, and the respondent “went to avoid her”. The respondent said that the appellant yelled at him for checking her daughter’s handbag the week before. The respondent said that he went “to walk away quite quickly and she’s lashed out and hit me with the back of her hand”, hitting the respondent on the shoulder. At this time, the appellant was yelling at the respondent, and the respondent was yelling at the appellant to leave him alone.

At this point, security staff approached the pair. The respondent told security he was running late to work and left. The respondent then arrived at his work at Woolworths in Woden, where he said that police doing “an operation with catching people stealing”. The respondent informed the police about the incident that happened with the appellant at the Canberra Centre.

About 45 minutes after the respondent arrived at work, the appellant went to see the respondent’s manager, complaining that it was in fact the respondent who had abused and harassed her at the Canberra Centre. The police, who the respondent had just notified about what happened at the Canberra Centre, then arrested the appellant for assault.

The respondent said that a week later, he was at the Woden bus interchange when he saw the appellant and her daughter sitting and waiting for a bus. The appellant’s daughter went up to him and yelled at him for getting her mother arrested the previous week.

The respondent said that since then, the appellant would sit out the front of his work at Woolworths and would “glare” at him whilst he was working.

In cross-examination, the respondent said that the appellant had first come to his attention when his co-workers said that the appellant posed a shoplifting risk. He accepted that, about a week before the 11 May incident, there was a “little bit” of an exchange between him and the appellant, when he asked the appellant to show him her bag. The respondent denied that he said anything derogatory to the appellant at that time.

The respondent accepted that on 11 May, the appellant told him to leave her daughter alone, because he had recently checked the appellant’s daughter’s bag. The respondent agreed that he responded to the appellant by saying “piss off” or “fuck off”. He agreed that the assault occurred shortly after this.

The respondent explained that on 19 May 2022, he was passing the Woden Bus Interchange and the appellant’s daughter became agitated and approached him. The respondent accepted that the appellant did not make any accusations towards him that day.

The respondent said that, since that time, the appellant had been sitting “just outside of the 10 metre distance” that was required under the interim order. He said that because the appellant “wasn’t quite breaching the order”, he had not reported this to police, but that it was “very very close [to breaching the order]”, which was making him feel uncomfortable. The respondent said that at these times, the appellant was sitting in a café, within eyesight of where he was working at the checkout. The respondent said that the appellant did not attempt to talk to him whilst he was working, but that if he had to walk past her to come or go to work, the appellant told him to “keep away or that [he was] going to lose this court case.”

The respondent was then asked questions about the event that occurred on 13 November. He said that on that occasion, the appellant had entered Woolworths in breach of the interim order. The respondent was working at Woolworths at the time. The appellant did not say anything to him.

Ms Styles’ report

A psychologist report from Ms Wendy Styles, dated 13 November 2022 was tendered on behalf of the appellant. In her report, Ms Styles stated that she had had two lengthy interviews with the appellant in 2017, and two further lengthy interviews with the appellant in 2020.

Ms Styles reported that the appellant had been assessed as having a “significant cognitive impairment, particularly in the area of verbal comprehension.” She noted that the appellant repeated more than once during her contact “I’m disability and indigenous.” Ms Styles explained that the appellant had “fixed, simplistic views that enable her to navigate the world she inhabits and to participate in everyday conversations.” She said that the appellant is “capable of understanding information delivered in concrete terms and confined to a single idea that can be demonstrated in practice”.

Ms Styles reported that with the support and assistance of a number of generous spirited people, the appellant “has managed to live independently, to a degree.” She said that the appellant was impressive in her determination to live an independent life and

“had strong feelings when she, or anyone she cared about, was treated unfairly.
”

Ms Styles observed that the appellant’s “apparent facility with words masked her significant cognitive impairment”, in that the appellant was able to repeat various phrases, words, and opinions of other people, sometimes in appropriate contexts, and sometimes randomly. Ms Styles said that the appellant was aware of her limitations, but was “rightly angered when she is treated with derision or disrespect.”

Ms Styles’ opinion was that the appellant’s impairment was permanent, and that there was no likelihood that the appellant’s cognitive capacity or her verbal comprehension would improve. Ms Styles was of the view that the appellant was not capable of understanding what the PPO meant, its purpose or its future implications. In particular, the appellant could not comprehend the consequences of breaching an order, nor would she be capable of understanding the 10-metre distance requirement or retaining into the future any information that she might appear to have understood.

Ms Styles said that the appellant considers herself to be a truthful person and someone who tries to live by the rules of good behaviour that she has learned. However, because of her impairment, the appellant is capable of misreading situations.

Ms Styles concluded by expressing the opinion that the appellant would not be able to make decisions under the Act, and that she could not understand the nature and effect of the decisions that she might make in relation to the proceeding.

Dr Packer’s evidence

Dr Packer provided a support letter dated 15 January 2016 (which had been prepared for a previous proceeding) and gave oral evidence at the hearing before the Magistrate in support of the appellant. Dr Packer explained that she has known the appellant for approximately 20 years, when the appellant became her neighbour. Dr Packer has remained in touch with the appellant since the appellant moved to her present home in approximately 2013.

Dr Packer explained that the appellant does have a criminal record, but that most of her offending occurred between 1989 and 1997, when the appellant was in a violent marriage. All of those offences related to shoplifting. Dr Packer explained that when the appellant asked for money from her then husband to buy items for the children, she would be assaulted. The appellant’s solution was to shoplift, and she mostly took food items for her children. After the then manager at Woden Community Services taught the appellant how to lay-by goods, she has had no further convictions for shoplifting and “continues to lay-by prodigiously, planning far ahead for family events, birthdays and Christmas.”

Dr Packer explained she was aware of the interactions between the appellant and the respondent. She explained the appellant has a problem with self-checkout scanners because she is illiterate, and because of her history of shoplifting, the appellant “is terribly anxious to get things right”. Dr Packer said that the appellant believed the respondent, who was a staff member responsible for assisting customers with self-checkout scanners, had teased her about not being able to manage the scanners which the appellant found “humiliating”.

Dr Packer said she had heard about the incident at the Canberra Centre where the appellant approached the respondent. Dr Packer said she understood the incident to be a brief one where the appellant told the respondent that she no longer wanted him to bully her or her daughter. The appellant then pushed the defendant because she thought he was going to knock her glasses off and she panicked. Dr Packer said that with the appellant’s history of family violence, “anybody in her proximity can make her panic”.

Dr Packer noted that a particular difficulty for the appellant was that she “presents as articulate and more in control of her actions than is the case”. She said that the appellant’s “use of language sounds very impressive until you listen [to] what she says and her actual understanding of the meaning of words is not necessarily the accepted meaning of the words”. Dr Packer explained that the appellant has to be “hyper-alert” in all environments, so as to not miss cues and directions. Like Ms Styles, Dr Packer reported that the appellant has a strong sense of fairness for herself and others and is especially vigilant for those she perceives to be vulnerable.

Dr Packer said that she has not known the appellant to be violent, although the appellant can get loud when she is distressed. Dr Packer reported that the appellant has little or no recollection of what she has said when distressed, which was “in keeping with a strongly developed stress response in a chronically traumatised person.” Dr Packer said that she thought that the appellant could be violent “if she felt cornered and desperate enough.”

Dr Packer noted that the appellant had previously had a bad reputation at Woden Plaza. After a new manager was appointed, Dr Packer took the appellant to see him. The manager instructed the security guards to treat the appellant with respect, and the appellant rehearsed a plan to remove herself if things became heated. There have been no subsequent incidents, the appellant and security staff now exchange pleasantries, and security staff have thanked the appellant for her assistance on occasion.

When asked whether she believed the appellant had the capacity to comply with the order, including the 10-metre distance requirement, Dr Packer said that “her comprehension of distance is as confused as her comprehension of words.” When asked whether she believed the definition of personal violence under the Act could be explained to the appellant, Dr Packer said “you’d be struggling.” However, Dr Packer also gave evidence that “what [the appellant] can understand is she is not to go into Woolworths and my understanding is she has not been to Woolworths.” Dr Packer also noted that while the appellant regularly attends Westfield Woden, since the interim order had been in place she had “predominantly gone into Tuggeranong to do her shopping.”

Dr Packer also stated there is a consistency in the various psychological assessments of the appellant “which shows that her capacity to understand and learn has not improved over the intervening years.”

When the Magistrate asked whether the appellant has ever received an IQ estimate, Dr Packer said she had not but “she is certainly in the severely compromised range for understanding.” The Magistrate further asked if she was “quite severely mentally impaired.” Dr Packer responded “Yes, very definitely.”

Dr Packer further stated that the appellant’s behaviour “has to be described as childish” and that:

She in many ways behaves as a quite young child who wants to behave but needs guidance, who gets bewildered by strange situations and then is governed by her past experiences many of which unfortunately in her childhood were violent experiences and abandonment experiences which tends to make her panic and behave more like a panicking small child than a confident small child seeking reassurance and support.

Dr Packer concluded by saying that the appellant was a woman “with significant, but not overt, disabilities which seriously affect her ability to live an independent life.” She noted that the appellant’s disabilities mean that the appellant is frequently unprepared for the consequences of the circumstances in which she finds herself. Dr Packer stated that with “firm but sympathetic assistance” the appellant can manage her way out of most routine circumstances, “but her loud responses tend to antagonise rather than engage those present, particularly those in an official capacity, with unfortunate consequences.”

The parties’ submissions before the Magistrate

After hearing the evidence of Dr Packer, his Honour stated:

I think [the appellant] is not capable of complying with the distance order. So the present order is she’s not to be on premises at Woolworths Woden. What I’m considering doing is expanding that to be not on floor 1 of Westfield, Woden, so that you don’t have to worry about going to or from your work and you don’t have to worry about her being outside of your work…That would be the order that I’m thinking about imposing. So one to keep her off your floor at Westfield in Woden. It might inconvenience her for getting coffee on that level but I’m sure there’s many other places at Woden to buy coffee, is that right?

The appellant’s solicitor said he would require further instructions “about the specific location of Westpac to make sure that that’s not going to be an issue as well as ensuring there are no other essential amenities that the respondent requires on that floor.”

His Honour then said:

I’m trying to employ the least restrictive principle. One option was to exclude her from Westfield altogether which would be unfair to her because she needs special help with withdrawing money. I think this is a reasonable compromise and I’m not stopping you from making submissions otherwise. But [the respondent] needs to be able to go to work and be comfortable at work and it seems that [the appellant] is able to understand basic orders and this would hopefully be explained to her that she’s not to be on level 1…

The appellant’s solicitor responded:

I do have some concerns about whether [the proposed order] can be construed as the least restrictive condition to be imposed…The evidence given by Dr Packer was that she goes there because she likes coffee and I understand that there are many other places that she can go but to truncate her liberties for essentially doing what in her mind might not be in any way intended to be an offensive or malicious gesture, I think may potentially transgress upon the premise of the least restrictive principle.
I am just concerned that expanding to involve telling her that she can’t be on floor 1, we are dealing with somebody who has very compromised capacity to understand. It’s unclear whether she would even necessarily understand the scope of floor 1 of Westfield…I am just concerned that this would be potentially inviting an inadvertent breach on her part.

His Honour acknowledged the difficulty, but continued:

… you’ve got to balance the ability to put an order into its simplest terms possible and for me that was the simplest way as you are not to be on the same level as Woolworths. Pretty easy. Without belittling her I think that an average three or four‑year‑old child would probably be able to understand that. And I’m not - that’s not to be taken as denigrating her in any way but I think that a child that age would be able to understand.

The appellant’s solicitor said that he was concerned if the Magistrate had formed the view that the appellant only had the intelligence of a 3 or 4 year child, noting that s 69 of the Act stipulates that a child under the age of 10 cannot be the respondent to an order. He submitted that the Act did not permit the making of an order against such a person. Later in the proceeding, his Honour clarified that he did not intend to compare the cognitive ability of the appellant to that of a 3 or 4 year old child.

His Honour again expressed concern about protecting the respondent, noting:

There is because she’s an adult functioning generally independently and she understands at least some of the current protection order so she’s capable of understanding that. [The respondent] needs protection. [The appellant] is a vulnerable person with unique responses to threats that aren’t there and he deserves protection from that particularly at his workplace.

The matter was then briefly adjourned to allow the appellant’s representative to seek further instructions on her capacity to comply with the proposed order. The appellant’s representative then returned and informed his Honour that:

…the respondent will not be able to accommodate an order about not going to level 1 of Westfield Woden partly because of her understanding but partly because it is a core component of her everyday life that she goes to Woden for the purposes of coffee, things like that. The imposition of an order to change that would potentially be beyond her comprehension.
I’m also instructed to maintain the respondent’s position that the respondent is not capable of being subject to an order by way of the cognitive impairment. It is the instructions as well that it’s even unclear whether the respondent is aware that she’s not allowed at Woden Westfield. I know your Honour has heard evidence today that the respondent has indicated that she may understand that she’s not allowed to go to Woden Westfield.

The appellant’s solicitor referred to Ms Styles’ opinion that the appellant “would not comprehend the consequences of breaching an order nor would she be capable of retaining into the future any information that she might appear to have understood”, before continuing:

My submission would be that the imposition of a PPO would exacerbate that situation. Where there would be no order in place the police could adopt the role you have indicated of essentially separating the parties and allowing them to go about their business. This would avoid the risk of [the appellant] being subjected to the criminal justice system while simultaneously allowing the applicant to feel safe… If an order were put in place the police may find themselves in a position where their hands are effectively tied, of subjecting the respondent to ongoing criminal proceedings the consequence of which is highly adverse given her cognitive impairment.

The appellant’s solicitor again brought his Honour’s attention to AB v CD and drew parallels between that case and the present circumstances.

The respondent indicated that he wished that the appellant be excluded from Westfield Woden altogether.

The PPO decision

The Magistrate then delivered the following ex tempore decision:

In this matter there is an application for a final order in relation to allegations of personal violence. I accept the applicant as a witness of truth. He said that he has been assaulted by the respondent and also her continual presence outside his workplace causing him distress.
There is a practical difficulty with this matter in that the respondent is a woman who has a significant mental impairment. She has childlike behaviours but has the capacity to live independently. She has three children and is illiterate. In that sense the orders that I am going to make are going to need to be explained to her in appropriate language that she can understand.
Ultimately this was a difficult decision because of the unique impairments that the respondent suffers from but ultimately, in my view, the ability for the applicant to get on working in peace override the other considerations under the Act that I have had to take into account in relation to particular enforceability, practicality and the effect on the respondent. They are basic orders to ensure that this man can work without interruption.
The respondent is prohibited from, for a period of 12 months today, being on level 1 of Westfield Woden, corner of Hindmarsh and Melrose Drive, Woden. The reason for that is that the applicant works on level 1 and it is the simplest and most explainable order that I can think of to ensure that he is able to work without someone sitting outside his workplace or sitting at a coffee shop outside his workplace for repeated periods and disrupting his ability to concentrate at work.
The only other order I make is this: is that in the usual order where a preclusion from personal violence is imposed it will include this: that the respondent is not to talk to or yell at the protected person. Hopefully the simplicity of that order will assist her in understanding to stay away from the protected person.
In my submission [sic], a metre order, that is 10 metres or 50 metres or 20 metres, will not be explainable to [the appellant] so this was the only manner that I could think of to ensure that there is no communication between the two of them.
I have asked that if possible police serve the order in the presence of Dr Packer so that the order can be explained and it is not as confronting as it otherwise might be for the respondent.

The Magistrate made the order as set out at paragraph [2] above. The Magistrate also made directions for the order to be served on the appellant in the presence of Dr Sue Packer (if possible), and that a copy of the order be provided to the appellant’s disability guardian.

Further evidence sought to be adduced in the appeal proceedings

The further evidence sought to be adduced in the appeal proceedings is an affidavit of the appellant’s brother, AB (a pseudonym). In that affidavit, AB states that he has been appointed as the appellant’s litigation guardian.

AB explains that the appellant has lived with an intellectual disability since she was a child. The appellant receives a Centrelink disability support pension and is a beneficiary of the National Disability Insurance Scheme. She is completely illiterate and has an impaired capacity to understand and retain spoken information. AB’s experience is that the appellant will often repeat what someone has said to her, but cannot explain what they mean or what is required of her.

AB explains that the appellant has attended the Westfield Woden for the last ten years, which includes attending the NAB Woden and Coles Woden. Both of those premises make concessions for the appellant and provide assistance to help the appellant with her disability. AB states that without this assistance, the appellant “struggles or is unable to complete transactions or look after her day-to-day necessities”. NAB staff at Westfield Woden supports the appellant in making transactions. Specific employees at the bank are aware of the appellant’s cognitive impairment and provide assistance associated with withdrawing money. They will contact AB when the appellant has difficulties with funds not being available in her account.

In his affidavit, AB states that he had spoken to the appellant on 13 November 2022, when she attended Westfield Woden in breach of the order. AB states that on 28 November 2022, the appellant was arrested for the breach of the order and also for a breach of her existing bail conditions. She was remanded in custody to the ACT Magistrates Court and spent approximately two and a half hours in custody before being granted bail that day. AB states that the appellant has no awareness of this incident, and that she insists that she did not attend Woolworths on that day. He states that an application has been made pursuant to s 334 of the Crimes Act 1900 seeking that charges for this incident, and the earlier alleged assault, be set aside on the basis of the appellant’s intellectual impairment. That application is due to be heard on 11 January 2023.

Importantly, AB details his many attempts to explain the PPO to the appellant. He has told the appellant that she cannot go back to Westfield Woden. He has told the appellant that she might be arrested and that she might go back to jail. He reports that when he told the appellant this, she became upset and yelled at AB, saying “I don’t get it. I am allowed to go. You can’t stop me. I need to go there to do my banking.”

AB has attempted to explain the order to the appellant on many occasions. Sometimes the appellant is able to repeat back to him what he has said, and promises to try to go shopping in Tuggeranong instead. But at the same time, the appellant will maintain that there is nothing preventing her from going to Westfield Woden. On each occasion when AB tried to explain the order to the appellant, she became angry and distressed.

AB also notes that Dr Packer has had similar conversations with the appellant, where she has tried to explain to the appellant that she is not permitted to go to Westfield Woden. Dr Packer has told AB that the appellant was unable to understand the prohibition on her attendance, and that she became angry and distressed as a result of the conversation.

AB states that on 2 December 2022, he became aware that the appellant had attended Westfield Woden in contravention of the instructions that he and Dr Packer had given her. AB understands that the appellant was captured on CCTV attending Westfield to buy a coffee and shop. AB has since checked the appellant’s bank record, and found that the appellant withdrew money from the NAB at Woden on 30 November, 1 December and 2 December 2022.

AB states that on 5 December 2022, he again warned the appellant that she could only go to the NAB at Tuggeranong. He said that the appellant showed no indication of recalling the previous conversations he had had with her. The appellant was again distressed when AB tried to explain the order to her.

AB states that, as the appellant’s litigation guardian, he is concerned that the appellant is “simply not capable of understanding what the PPO means, its purpose or the implications of the order into the future.” He says that his experience of the appellant’s behaviour since the final order was made is that “repeated attempts to explain the order to her have little to no effect on altering her behaviour”, and that even when the appellant appears to comprehend what is required, her recent behaviour “demonstrates that any understanding is short-lived.” He explains that the appellant has lived in Canberra for at least 45 years and that she has a routine which is fairly entrenched, which unfortunately involves regular attendance at Westfield Woden.

Finally, the PPO imposed by the Magistrate prohibits the respondent from being on Level 1 of Westfield Woden. It is evident from the transcript that the intention of the Magistrate was to prohibit the respondent from being on the same floor as the Woolworths, so as to prevent any interaction between the appellant and the respondent. However, the affidavit of AB, which annexes a copy of the Westfield Woden shop directory shows that Woden Woolworths is actually located on Level 2 of Westfield Woden.

The application to adduce further evidence

It is appropriate to first consider the appellant’s application to adduce further evidence.

Section 87 of the Act confers a discretion upon the appeal to receive further evidence. That provision is not expressed to be limited in any way, and in particular, is not limited by any requirement that “special grounds” be shown before the evidence can be adduced: see similarly CDJ v VAJ [1998] HCA 67; 197 CLR 172 at [107], per McHugh, Gummow and Callinan JJ; see also at [52], per Gaudron J. In these circumstances, it is clear that the common law rules which govern the admission of fresh evidence do not exhaustively define the scope of the discretion under s 87: CDJ at [108], per McHugh, Gummow and Callinan JJ.

However, although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the Act, and the issues involved in the appeal will point to considerations which are, or are not, extraneous to the exercise of the power: CDJ at [108], per McHugh, Gummow and Callinan JJ.

As in CDJ (at [109]), the principal purpose of s 87 is to give this Court:

… a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot otherwise be remedied by the application of conventional appellate procedures.

Further evidence should not be admitted under s 87 “merely” because it is “useful”: CDJ at [114], per McHugh, Gummow and Callinan JJ. Similarly, because the power to admit further evidence is to be exercised after proceedings in which both parties have had an opportunity to present their cases and to be heard, ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing: CDJ at [55], per Gaudron J. In particular, where evidence is deliberately withheld, failure to call it will ordinarily weigh heavily against its admission: CDJ at [116]. However, further evidence may more readily be admitted where the evidence is not in dispute, and the Court is able to take it into account in considering the appeal without the necessity of having the proceedings reheard: CDJ at [114], per McHugh, Gummow and Callinan JJ.

In summary, in deciding whether to grant leave, the Court should consider:

(a) Whether the evidence was available or could reasonably have been obtained at the time of the hearing;

(b) Whether the evidence could have been used at the hearing and if it could have been, the reasons it was not adduced;

(c) Whether the evidence is contested and whether the evidence can be evaluated without the necessity for rehearing of the proceedings; and

(d) Whether the further evidence would likely affect the outcome/decision to be made by the Court at first instance.

See TS v DT [2020] ACTCA 43 at [57] – [58], citing Jovanovic v R [2015] ACTCA 29 at [21] – [23].

Applying those principles in the present case, I am satisfied that it is appropriate to admit the further evidence sought to be adduced on behalf of the appellant under s 87 of the Act. The affidavit of the appellant’s brother AB, whilst containing some introductory information about the appellant which could have been adduced in the proceedings below, is primarily focused on events which occurred after the imposition of the final order. Those further events demonstrate that, despite the best efforts of AB and Dr Packer, the appellant cannot understand the PPO that has been made against her. She simply does not have the cognitive capacity to comprehend the order, the reason why it was made, or its future implications.

Error in the Magistrate’s decision

The relevance of the appellant’s cognitive impairment

Some of the grounds of appeal (and aspects of the submissions advanced by the appellant’s solicitor before the Magistrate) tended to suggest that the appellant’s contention was that a PPO cannot be made against a person who has an impairment which renders them incapable of understanding the effect of such an order.

On the appeal, the appellant’s counsel (who was briefed to appear on behalf of the appellant by the appellant’s litigation guardian) did not advance this contention, and expressly accepted that a court has jurisdiction to make a PPO in such a case. The appellant’s counsel also accepted that the appellant’s lack of fitness to understand the nature of the proceedings or the nature of the order was not a basis to stay an application for a PPO. The appellant also disavowed any contention that R v Presser [1958] VR 45 applies to an application for a PPO; cf Farthing v Phipps [2010] NSWDC 317 at [32] – [33], per Lakatos DCJ.

These concessions were properly made.

The fact that the Act is intended to apply to persons who have serious cognitive impairments is made clear by Division 4.6 of the Act, which provides for the appointment of a litigation guardian or legal representation where a party to proceedings has “impaired decision making ability”: s 70. A party has impaired decision-making ability if the person “cannot make decisions in relation to a proceeding under the Act” or “does not understand the nature and effect of the decision the person makes in relation to the proceedings”: s 68(1) of the Act. Section 70(3) of the Act confirms that an interim order may be made against a respondent with impaired decision-making ability if the court is satisfied that there are grounds for making the order.

Further, the purposes of the Act include the prevention and reduction of personal violence and the facilitation of the safety and protection of people who fear or experience personal violence by, inter alia, providing a “legally enforceable mechanism to prevent personal violence”: s 6 of the Act. Those purposes can be met even where the person against whom an order is made does not understand the purpose or effect of the order: see similarly Critchley v Magistrates’ Court of Victoria [2019] VSC 435 at [90] and [96], per Daly AsJ.

For example, if person A were to regularly stalk and threaten person B, and there was a real reason to fear that person A would engage in physical or sexual violence towards person B, then the inability of person A to understand the effect of a PPO would not constitute a bar to its issue, even if their inability to understand the order stemmed from a cognitive impairment. Person B would still be protected by an order, which would enable police to take action before the commission of serious violence by person A.

Although the appellant’s counsel properly accepted that a PPO may be made against a person who cannot understand the effect of the order by reason of their intellectual impairment, she submitted that the fact that a respondent to an order cannot understand an order is a highly relevant consideration, both in considering whether a PPO should be made under s 26 of the Act, and in considering what conditions should be made under Division 3.6 of the Act.

This submission must also be accepted.

Section 26(a) of the Act provides that the Court may make a PPO if it is satisfied that the respondent to a PPO:

(i)Has used personal violence in relation to a person; and
(ii)May engage in personal violence in relation to the person during the time the order is proposed to operate if the order is not made.

“Personal violence” is defined in s 6 of the Act to mean physical violence or abuse, sexual violence or abuse, threatening behaviour, stalking, harassing, intimidating or offensive behaviour or damaging property.

In order for a PPO to be made, it is necessary that both of the criteria in s 26(a) be satisfied. However, as the appellant’s counsel further submitted, s 26(a) of the Act does not oblige or compel a court to make a final order if satisfied the criteria in s 26(a) of the Act have been met. The exercise of the power to enter an order remains discretionary, even where a positive finding is made that there has been personal violence.

In deciding whether to exercise the discretion to make a final order, the Court must consider the matters mentioned in section 11 of the Act. Those matters include:

(a) the objects of this Act in section 6;
(b) any hardship that may be caused to the respondent or anyone else by the making of the order;
(c) any previous family violence or personal violence by the respondent in relation to the affected person or anyone else;
(d) any previous protection order made in relation to the respondent;
(e) any previous contravention of a protection order by the respondent;
(f) the need to ensure that property is protected from damage.

The Court may also consider “anything else the Court considers relevant”: s 11(2) of the Act.

As Chief Magistrate Walker recognised in AB v CD at [38] – [50], the hardship of making an order against a person who, by reason of cognitive impairment, cannot understand the order or the implications of breaching it, is a significant consideration to be taken into account when determining whether to make a final order under the Act. Even where the consequences of a breach may be limited to an alternative disposition of the charge (such as under s 334 of the Crimes Act), there is real and significant hardship that is occasioned by subjecting the person to the criminal justice system and the stress associated with arrest and possible incarceration until the issue is considered by a Court. That stress is particularly heightened where the person is unable to understand the reason why he or she is being subjected to the criminal justice process.

It is also relevant that one of the purposes of the Act, namely, to “encourage perpetrators of violence to be accountable for their actions” has no application to a person who, by reason of their impairment, cannot understand an order to be made against them: s 6(c) of the Act. Accordingly, in determining whether to make an order against a person who is unable to understand the effect of the order, the Court may take into account the fact that the Act cannot operate in the way that it was primarily intended: namely, by self-regulation of conduct.

In summary, the fact that a respondent to an application for a PPO cannot, by reason of his or her disability, understand the order or its implications is a highly relevant consideration in the determination of whether to make an order under s 26 of the Act. However, it is not the determinative consideration. In some cases, where the probability of personal violence is heightened, and the likely consequences of personal violence are serious, an appropriate exercise of the discretion may be to issue the final order, despite the hardship that will result. In other cases, where the probability of personal violence is relatively low, and the likely consequences of personal violence are less serious, it may be appropriate to dismiss the application for an PPO.

The Magistrate’s decision

It is apparent from the Magistrate’s decision that the Magistrate formed the view that, despite some indications to the contrary in the evidence before him, the appellant was capable of understanding the PPO, provided that it was “explained to her in appropriate language that she can understand.” To this end, the Magistrate endeavoured to frame an order that was sufficiently clear for the appellant to understand.

The further evidence that has been tendered before me demonstrates that this finding was in error. With the benefit of the further evidence of AB, it is clear that the nature of the appellant’s cognitive deficits are such that she cannot understand the order, the reason for the order, or the effects upon her if the order is not complied with.

For the reasons outlined above, I consider that this is a highly relevant consideration in determining whether to exercise the discretion to make a final order under the Act. Accordingly, I am satisfied, on the basis of the further evidence, that there is error in the Magistrate’s decision. This error vitiates the exercise of the Magistrate’s discretion: House v The King at 505. Accordingly, it is necessary for me to reconsider whether a final order under the Act should issue: N v N (No 2) [2015] ACTSC 48 at [22], per Mossop M (as his Honour then was).

The Magistrate accepted the respondent as a truthful witness, and found that he had been assaulted by the appellant and that the appellant’s continual presence outside his workplace was causing him distress.

On the appeal, the appellant’s counsel did not concede that the assault described by the respondent had occurred. She informed the Court that, in view of the appellant’s impairment, instructions on this issue could not be obtained. She submitted that in determining whether an assault occurred, I should take into account the fact that the appellant was not a competent witness under s 13 of the Evidence Act2011 (ACT), and hence could not provide an answer to this allegation.

There are two difficulties with this submission. First, as the appellant’s counsel properly acknowledged, this issue was not raised in the proceedings before the Magistrate. There was no reason why this issue could not have been raised in those proceedings. Second, even accepting that the appellant could not give evidence (and noting in this respect that s 10A of the Act provides that the rules of evidence do not apply to proceedings under the Act), it does not follow that the Magistrate was not entitled to make a finding of fact on the issue. The Magistrate had the benefit of seeing and hearing the respondent give evidence. Counsel in the proceedings at first instance did not suggest to the respondent that the assault did not take place, nor did he submit to the Magistrate that the court should not be satisfied that an assault had taken place. In those circumstances, I will act on the factual determination that has been made by the Magistrate.

However, even accepting that the assault of 11 May 2022 took place in the way described by the respondent, it is clear that the assault was not serious in nature. It consisted of the appellant hitting the respondent with the back of her hand in the respondent’s shoulder. The appellant is 56 years old, and the respondent is 30 years old. He was not injured as a result of this event. Further, the circumstances of the assault must also be taken into account. Specifically, the assault occurred immediately after the respondent had told the appellant to “fuck off” or “piss off”. Whilst I accept that the experience of being loudly confronted in public was very unpleasant to the respondent, this is not a case where the appellant acted violently in an entirely spontaneous manner. Accordingly, even accepting that the appellant has used personal violence towards the respondent such that s 26(a)(i) is satisfied, the level of personal violence to which he was subjected was not high.

Secondly, when considering the second criterion under s 26(a)(ii), namely whether the appellant “may engage in personal violence in relation to the person during the time the order is proposed to operate”, it is relevant that the appellant has not engaged in any physical violence either before or after the events of 11 May 2022. The respondent’s continued apprehension is limited to the appellant looking at him when she is at a café whilst he performs his work and his fear that the appellant will again breach the order by entering Woden Woolworths. The evidence of the appellant talking to the respondent is limited to the appellant telling the respondent “keep away”.

The threshold under s 26(b) only requires satisfaction that the appellant “may” engage in personal violence if the order is not made. Personal violence may include harassing, intimidating, or offensive behaviour. As with s 26(a), accepting that the appellant “may” engage in harassment or intimidation of the respondent, it remains the case that, since 11 May 2022, such harassment or intimidation is limited to the appellant looking at, and sometimes speaking to, the respondent.

On the other hand, turning to the s 11 considerations, the imposition of a final order will occasion, and in fact, has occasioned, significant hardship to the appellant. She cannot understand the order. The order prohibits the appellant from shopping at a centre that she has attended for the last decade, and where she receives significant assistance in performing her daily tasks. Because she cannot understand the order, or retain information told to her about the importance of complying with the order, the appellant is bound to continue to breach the order, inadvertently or otherwise. Such breaches will, and indeed already have, occasioned distress the appellant, who has been arrested, charged and remanded in custody for some hours as a result of the breach. This distress is heightened because of the appellant’s cognitive impairment and prior experience of trauma and family violence.

Conclusion

With the benefit of the further evidence from AB, I am of the view that the Magistrate erred in finding that a final order should be made. Accordingly, I make the following orders:

1. The appellant is granted leave to adduce the affidavit of AB, affirmed on 12 December 2022.

2. The appeal is allowed.

3. The orders made by Magistrate Stewart on 24 November 2022 are set aside.

4. The interim order of 20 May 2022 is discharged.

The appellant additionally sought a declaration that “no finding of fact is made against the appellant as to whether she has perpetuated personal violence”. In making the final order, the Magistrate made a finding that the appellant engaged in the assault on 11 May 2022. As noted above, it was not submitted in the proceedings at first instance that no such finding should be made. The finding made by the Magistrate relating to the assault will not, of course, be binding in any criminal proceedings (which in any event attract a different standard of proof): see s 91 of the Evidence Act. In these circumstances, I decline to make the declaration sought.

I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Gallagher

Date: 23 December 2022

Amendments

31 January 2023	Replace “work” with “walk” in the phrase “if he had to work past her”	Paragraphs: [31]
31 January 2023	Replace “respondent” with “appellant”	Paragraphs: [47]
31 January 2023	Replace “n” with “on”	Paragraphs: [84]
31 January 2023	Replace “criteria” with “criterion”	Paragraphs: [105]

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Citations

Chelsey (a pseudonym) v Goodwin (a pseudonym) (No 2) [2022] ACTSC 364

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

3

CM v TM and Anor [2011] ACTSC 53

TS v DT [2019] ACTSC 295

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

[2022] ACTSC 364

16 December 2022