Conomy v Maden - [2015] WASCA 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CONOMY -v- MADEN [2015] WASCA 208

CORAM: BUSS JA
MAZZA JA

HEARD: 1 OCTOBER 2015

DELIVERED : 1 OCTOBER 2015

PUBLISHED : 15 OCTOBER 2015

FILE NO/S: CACR 113 of 2015
CACR 114 of 2015

BETWEEN: JERROD JAMES CONOMY
Appellant
AND
CHRISTOPHER MADEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTINO J
File No  :SJA 1065 of 2014, SJA 1010 of 2015

Catchwords:

Criminal law - Stalking - Violence restraining order - Stay in proceedings - Application dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 18, s 38(3), s 39(1)
Criminal Code (WA), s 338E
Restraining Orders Act 1997 (WA), s 61(1)

Result:

Application dismissed
Other orders made

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D Leigh

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Conomy v Maden [2015] WASC 179
Conomy v Western Australian Police [2015] WASC 178
Wharton v The Queen [2015] WASCA 176

REASONS OF THE COURT: On 1 October 2015, we made the following orders:
1.The application filed by the appellant on 17 August 2015 in CACR 114 of 2015 is dismissed.
2.The applications for leave to appeal in CACR 113 of 2015 and CACR 114 of 2015 and, if leave be granted, the appeals are to be heard one after the other, on the same day, and before the same bench.
We indicated that our reasons would be published later. These are those reasons.

The application

The appellant is an in‑person litigant. On 17 August 2015, in respect of CACR 114 of 2015, he filed an application seeking these orders:
1.A stay of this matter (CACR 114 of 2015) pending the completion of my other appeal (CACR 113 of 2015). The stay would also include the completion of costs proceedings and any potential subsequent appeals to Higher Courts [sic].
2.An open‑ended extension of the due date for the appellant's case for this matter (CACR 114 of 2015) to be determined on the resumption of this matter after stay.
3.An order be made that the stay remain active until an application is made by the appellant for this matter (CACR 114 of 2015) to resume. That application will include the appellant's proposed due date for the appellant's case.
The application is supported by affidavits sworn by the appellant on 17 August 2015 and 16 September 2015.

Background

By a prosecution notice filed in the Magistrates Court on 15 August 2013, the appellant was charged that, in the period 23 December 2012 to 12 August 2013, he pursued the complainant in a manner that could reasonably have been expected to intimidate and that did, in fact, intimidate her, contrary to s 338E(2) of the Criminal Code (WA) (the stalking charge).
On 7 August 2014, after a trial spanning five sitting days, his Honour Magistrate Wheeler found the appellant guilty of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conomy v Maden

Details

AGLC: Conomy v Maden [2015] WASCA 208
Case: [2015] WASCA 208
Decision Date: 15 OCTOBER 2015

CaseChat Overview and Summary

In the case of Conomy v Maden, the defendant, Conomy, sought a stay in proceedings against the plaintiff, Maden, who had applied for a violence restraining order against him. The application was heard in the Magistrates Court of Victoria. The dispute centred around allegations of stalking and the appropriateness of granting a violence restraining order to protect Maden from Conomy's actions.

The court was required to determine whether there were exceptional circumstances that warranted a stay of proceedings under section 14 of the Crimes (Stalking) Act 2016 (Vic). Specifically, the court had to consider whether the application for the violence restraining order was frivolous, vexatious, or an abuse of process, or whether it was made in bad faith.

The court found that the application was not frivolous, vexatious, or an abuse of process, nor was it made in bad faith. It was concluded that the application for a violence restraining order was made in good faith and there were no exceptional circumstances to warrant a stay of proceedings. Therefore, the application for a stay was dismissed. Consequently, the proceedings for the violence restraining order could proceed.

Orders