Conomy v Maden
[2015] WASC 178
•29/05/15
CONOMY -v- WESTERN AUSTRALIAN POLICE [2015] WASC 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 178 | |
| Case No: | SJA:1010/2015 | 14 MAY 2015 | |
| Coram: | MARTINO J | 29/05/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend grounds of appeal granted Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JERROD JAMES CONOMY WESTERN AUSTRALIAN POLICE |
Catchwords: | Criminal law Appeal against conviction and sentence Breach of restraining order |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 10, s 40 Criminal Procedure Act 2004 (WA), s 60, s 61, s 63 Criminal Procedure Regulations 2005, sch 4 Evidence Act 1906 (WA), s 79C Restraining Orders Act 1997 (WA), s 61(1) |
Case References: | Beamish v The Queen [2005] WASCA 62 Conomy v Maden [2015] WASC 179 Lutey v Jacques [2010] WASC 78 Rowe v Gaunt [2013] WASC 90 Topic v Lynch [2012] WASC 446 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
WESTERN AUSTRALIAN POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE D TEMBY
File No : MH 3335 of 2013
Catchwords:
Criminal law - Appeal against conviction and sentence - Breach of restraining order
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 10, s 40
Criminal Procedure Act 2004 (WA), s 60, s 61, s 63
Criminal Procedure Regulations 2005, sch 4
Evidence Act 1906 (WA), s 79C
Restraining Orders Act 1997 (WA), s 61(1)
Result:
Leave to amend grounds of appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D E Leigh
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Beamish v The Queen [2005] WASCA 62
Conomy v Maden [2015] WASC 179
Lutey v Jacques [2010] WASC 78
Rowe v Gaunt [2013] WASC 90
Topic v Lynch [2012] WASC 446
1 MARTINO J: The appellant, Mr Conomy, appeals against his conviction for breaching a Violence Restraining Order (VRO) and for the fine of $1,200 that was imposed for the offence of which he was convicted. The conviction and fine were imposed on 16 January 2015 following a trial which took place on that day. The appellant appealed within time by an appeal notice date 27 January 2015. He attached to his appeal notice grounds of appeal which he described as draft grounds of appeal, which he said would be finalised once the transcript was received and advice obtained. On 10 February 2015, Mr Conomy filed an application for leave to amend his grounds of appeal and his finalised grounds of appeal.
2 At the hearing of the appeal before me, both parties proceeded on the basis that the grounds of appeal were those filed by Mr Conomy on 10 February 2015.
3 Section 10 of the Criminal Appeals Act 2004 (WA) requires that an appeal to a single judge must be commenced by lodging with the Supreme Court an application for leave to appeal that sets out the grounds of the appeal. Section 40(1)(k) gives the Supreme Court power to amend or add a ground of appeal. There is no restriction contained in the legislation as to the exercise of that power. It is often the case that the party will not be permitted to amend or add a ground of appeal until the court is satisfied that the proposed ground is properly expressed and has some merit. However, as I have said in Conomy v Maden,1 there is no requirement for the court to be so satisfied. In this case where the parties have proceeded on the basis that the grounds of appeal are contained in the document dated 10 February 2015, I conclude that it is appropriate to permit Mr Conomy to amend his grounds of appeal in terms of that document and review the merits of the grounds as I am required to do under s 9 when deciding whether to grant leave to appeal.
4 The prosecution notice by which Mr Conomy was charged was dated 14 August 2013. It alleged that on 13 August 2013 he, having been personally served with a VRO 2013 00098, breached that order by sending text messages to the complainant. The prosecution was under s 61(1) of the Restraining Orders Act 1997 (WA). A prosecution under that section is a prosecution for a listed simple offence under sch 4 of the Criminal Procedure Regulations 2005 (WA). The prosecution, therefore, had a duty of disclosure under ss 60 and 61 of the Criminal Procedure Act 2004 (WA).
The trial
5 At the trial, the prosecution called the complainant. She gave evidence that, on 13 February 2013, she obtained a restraining order against Mr Conomy,2 and that, on 13 August 2013, she received three text messages from him.3 A photograph of her phone showing those text messages was tendered and accepted in evidence as Exhibit 1. The three text messages were:
I miss you!
97.3
I'll be at the quarry tomorrow between 1 pm and 1.30 pm. If your not there I'll know I need to forget you and move on …
6 In answer to a question in cross-examination by Mr Conomy, the complainant said that the VRO that she obtained was an interim order.4 The prosecution then called Sergeant Leon Robert Charles Birch to prove service of the VRO on Mr Conomy. Mr Conomy informed the presiding Magistrate that he admitted being served with the interim VRO.5 The certificate of service of the VRO on Mr Conomy was, nevertheless, tendered as Exhibit 2. It included a copy of the terms of the VRO. One of those was that Mr Conomy was prohibited from communicating or attempting to communicate with the complainant by any means whatsoever 'including SMS or text messages, or any other electronic means'.
7 The prosecution then called First Class Constable Christopher Maden. Constable Maden gave evidence that, on Wednesday, 14 August 2013, he attended the Quarry Park located on Pebble Beach Boulevard in Meadow Springs at approximately 1.04 pm. Mr Conomy was sitting in a motor vehicle at that park.6
8 Constable Maden then gave evidence that he arrested and cautioned Mr Conomy, conveyed him back to the Mandurah Police Station where an electronic record of interview was conducted.7
9 The prosecutor then proposed to play the video record of interview. Mr Conomy objected. There were two bases to that objection, both related to the prosecution duty of disclosure. The first basis was that the two discs which the prosecution proposed to play were numbered 1 and 2; whereas the discs that had been served on Mr Conomy were numbered 3 and 4 and were so described in the unified physical material list that had been served on him.8 The second basis of objection was that the discs served on Mr Conomy were blank.9
10 After Mr Conomy had informed the learned Magistrate of his objection based on the numbering of the discs, the prosecutor proposed that the DVDs be played to ascertain whether they contained the interview of Mr Conomy.10
11 Mr Conomy objected but the learned Magistrate ruled that the DVDs would be played and he would then determine his objection.11
12 After part of the first DVD had been played the prosecutor informed the learned Magistrate that the balance of the interview contained only one reference to the VRO.12
13 Mr Conomy informed the learned Magistrate that he maintained his objection to the admissibility of the interview, but he had no objection to the prosecutor's proposal that the remainder of the interview not be played.13
14 The learned Magistrate asked Mr Conomy if the DVD that had been played was different to the DVDs that had been served on him. Mr Conomy then informed his Honour that the discs served on him were blank.
15 As part of the hearing to determine the admissibility of the interview the prosecution called one of the investigating officers, Andrew Whittall. Mr Whittall gave evidence that the disc had been entered incorrectly in the incident report by another police officer.14 In that process, they had been numbered 1 and 2. When the entries were corrected, the original numbering was retained for audit purposes and the discs with the correct entry were numbered 3 and 4.15 In giving this evidence, Officer Whittall referred to the police incident report and the unified physical material list to explain his evidence as to what had occurred. Mr Conomy objected to the documents going into evidence on the basis of non-disclosure16 and Evidence Act 1995 (Cth).17 His Honour did not accept Mr Conomy's objections and he accepted the Unified Physical Material List as Exhibit 3 and the Police Incident Report as Exhibit 4. The learned Magistrate informed Mr Conomy that he was accepting the Police Incident Report not as evidence of the content of the document, but only as to the continuity and numbering. Mr Conomy informed his Honour that he had no objection to the Police Incident Report being admitted into evidence solely on the issue of the admissibility of the video evidence.18
16 His Honour ruled that the interview was admissible, ruling that the numbering of the discs did not have anything to do with the authenticity of the video record of interview and that the DVD clearly showed Mr Conomy being interviewed and that he was given a caution that he did not have to participate.19
17 The prosecution then recalled Constable Maden. Mr Conomy again informed his Honour that he had no objection to part only of the interview being played, but he maintained his objection to the admissibility of the video evidence.20
18 Shortly afterwards, Mr Conomy said that he would like to give evidence during the voir dire.21 He then gave evidence in which he maintained that he was not mistaken about the numbering of the discs that had been served on him. His Honour then maintained his decision that the DVD was admissible.22 The prosecution then closed its case.
19 Mr Conomy elected not to give evidence.
The learned Magistrate's decision
20 The learned Magistrate gave his decision. He referred to the complainant's evidence that she obtained a VRO,23 Exhibit 1 which contains details of the service of the VRO on Mr Conomy and the terms of that VRO.24 The learned Magistrate then referred to the complainant's evidence that she received the text messages on 13 August 2013. He found her to be a truthful witness.25 His Honour said he was satisfied that the text messages came from the accused. His Honour noted that the VRO was an interim order and said that, whether it was an interim or a final order, it still applied to Mr Conomy and there was no evidence that it did not continue to apply at 13 August 2013. His Honour said that, even if he were to disregard the video record of interview, there was compelling evidence that Mr Conomy had breached the order.26 His Honour said that the prosecution case was fortified by the fact that the last message received by the complainant on 13 August 2013 requested a meeting at a rendezvous point and the police went to that point where they found Mr Conomy in his motor car waiting. His Honour said that the evidence of Mr Conomy being at the point nominated in the third text message linked him to that message.27 He found the charge proved.
21 His Honour then heard submissions as to penalty. He said that when a person obtains a restraining order, they are entitled to be content that they have the benefit of that order and will not have to be challenged by the bound person.28 His Honour imposed a fine of $1,200 and granted Mr Conomy's application for a spent conviction order.29
Grounds of appeal
22 Mr Conomy's first ground of appeal is 1A. It relates to the admissibility of the video evidence. He contends that the learned Magistrate
erred in law by basing his decision on evidence which was inadmissible or not worthy of any significant weight in his decision. This was in contravention of common law and the Evidence Act 1906. This error led to the Magistrate declaring the video evidence admissible which was the only alleged proof that VRO 98 of 2013 was in force with conditions restricting sms communications at the time of the messages being sent.
23 By his outline of submissions Mr Conomy expands upon this ground. He says that his complaint is the admission of the Police Incident Report, Exhibit 4, and that the report was inadmissible by reason of s 79C(4)(d) of the Evidence Act 1906. He also contends that the evidence of Mr Whittall that the discs had been served on him was hearsay and inadmissible as Mr Whittall was not the person who served the discs. Further, Mr Conomy submits that the Unified Physical Material List, Exhibit 3, was also inadmissible as proof of service of the video recorded interview as there was no signature by any party on that page to suggest those items had been served.
24 The outline of submissions makes it clear that this ground is closely related to ground 1B, which is that the learned Magistrate
erred in fact and law by finding that the video evidence had been served on the accused when, in fact, the evidence before his honour was that the accused had not been served with the video evidence and he had objections to that evidence being admitted on that basis.
25 Section 79C(4)(d) of the Evidence Act 1906 does not render evidence inadmissible. The subsection 'does not exclude evidence that is admissible otherwise than under s 79C'.30 In any event, as I have already noted, Mr Conomy did not object to the Police Incident Report being admitted into evidence solely on the issue of the admissibility of the video evidence.
26 It is clear, in my view, that there is no substance to these grounds of appeal. As I have noted, this prosecution was a prosecution for a listed simple offence and the prosecution had a duty of disclosure to Mr Conomy. If Mr Conomy had not been served with a copy of the audio-visual recording of his interview then, under s 63 of the Criminal Procedure Act 2004, Mr Conomy was entitled to an adjournment of the trial if he required further time to investigate the evidence and to obtain any further evidence as a result of the disclosure of the visually recorded interview. The learned Magistrate informed Mr Conomy of the possibility of his applying for an adjournment and Mr Conomy said he would not be doing that.31 The reason why Mr Conomy did not need an adjournment of the trial was that he knew exactly what was on the audio-visual recording of his interview. He said at page 229, in response to an enquiry by the learned Magistrate as to whether he had anything to say about only part of the interview being played:
My case is prepared around the opinion of the disk that I was served with. In my opinion, by you just seeing that particular part of the evidence … you're going to miss other parts of the interview that will assist my case, I believe. So I have an objection to watching that in partial.
27 And page 231:
I do feel that by watching just certain portions of the evidence there could be statements made by me in relation to - there was a statement in the video where I say 'I know I've breached the order.' What I meant to say was 'I know I've been arrested for breaching an order.' … And there's no reference to what act I'm talking about. So if the prosecution were to show that particular statement, and then fast forward through and show the alleged sending of a text message, that could be associated incorrectly by watching the video out of its natural context.
28 Grounds of appeal 1A and 1B have no reasonable prospect of success individually or combined. In his outline of submissions Mr Conomy said that he no longer relies upon ground 1C.
29 By ground 2 Mr Conomy contends that the learned Magistrate
erred in fact and law by finding that Restraining Order 98 of 2013 was in force at the time of the alleged text messages being sent … when, in fact, the only proven evidence before his honour relating to Restraining Order 98 of 2013 was of an ex-parte interim VRO having been served on the accused approximately six months prior to the alleged text messages being sent.
30 The evidence before the learned Magistrate was that the interim VRO had been obtained on 13 February 2013 and been served on the same day. There was no evidence before his Honour that the interim VRO was not in force on 13 August 2013, nor that its terms had been amended in any way. The learned Magistrate was correct to conclude that the interim VRO was in force on 13 August 2013 and that it prohibited Mr Conomy communicating with the complainant by any means, including SMS or text messages.
31 In the course of his submissions Mr Conomy referred to two decisions of this Court where appeals against convictions for breach of restraining orders were allowed. In Rowe v Gaunt,32 the appeal was allowed because the restraining order had expired before the date of the alleged breach. In Topic v Lynch,33 the appeal was allowed because the terms of the interim violence restraining order had been amended before the date of the alleged breach of it and the conduct of the appellant was not in breach of the restraining order as amended.
32 The facts of those two cases are different from the facts of this case. In this case, there is no evidence that the restraining order had expired or been amended by 13 August 2013. This ground of appeal has no reasonable prospect of success.
33 Mr Conomy's third ground of appeal is that the learned Magistrate erred by issuing him with a fine of $1,200. He says that the fine 'is far and beyond reasonable punishment for the alleged offence' and that no fine should have been imposed. The maximum penalty for the offence is a fine of $6,000 or imprisonment for two years or both.34 Where a violence restraining order has been made and a court is satisfied that an accused person has breached it, it is important that the court impose a penalty that ensures that violence restraining orders play their role of protecting the persons for whose benefit they have been granted. As Simmonds J said in Lutey v Jacques,35 the Restraining Orders Act 1997
is social legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135 [13] (Miller J); it is essential the courts ensure their orders are not ignored: Kenny v Lewis (Unreported, WASC, Library No 990133, 12 March 1999) (Kennedy J) 10; and violence restraining orders are notoriously difficult to enforce, and the need for general and individual deterrence will ordinarily outweigh subjective or other mitigating considerations: Dominik v Volpi [2004] WASCA 18 [80] (Roberts-Smith J).
34 Mr Conomy breached the VRO by sending to the complainant three text messages on one day. In my view, the fine of $1,200 was an entirely appropriate sentence for the breach of an important court order and this ground of appeal has no reasonable prospect of success.
35 As none of Mr Conomy's grounds of appeal have any reasonable prospect of success, leave to appeal is refused in respect of each of them and his appeal is dismissed.
1Conomy v Maden [2015] WASC 179.
2 ts 243 (16 January 2015).
3 ts 249 (16 January 2015).
4 ts 254 (16 January 2015).
5 ts 255 (16 January 2015).
6 ts 261 (16 January 2015).
7 ts 262 (16 January 2015).
8 ts 263 (16 January 2015).
9 ts 270 (16 January 2015).
10 ts 264 (16 January 2015).
11 ts 265 (16 January 2015).
12 ts 267 (16 January 2015).
13 ts 268 (16 January 2015).
14 ts 275 (16 January 2015).
15 ts 276 (16 January 2015).
16 ts 277 (16 January 2015).
17 ts 290 (16 January 2015).
18 ts 278 (16 January 2015).
19 ts 306 - 307 (16 January 2015).
20 ts 309 (16 January 2015).
21 ts 311 (16 January 2015).
22 ts 316 (16 January 2015).
23 ts 326 (16 January 2015).
24 ts 326 - 327 (16 January 2015).
25 ts 327 (16 January 2015).
26 ts 327 (16 January 2015).
27 ts 321 (16 January 2015).
28 ts 340 (16 January 2015).
29 ts 341 (16 January 2015).
30Beamish v The Queen [2005] WASCA 62 [168].
31 ts 274 (16 January 2015)
32Rowe v Gaunt [2013] WASC 90.
33Topic v Lynch [2012] WASC 446.
34Restraining Orders Act 1997 s 61(1).
35Lutey v Jacques [2010] WASC 78 [62].
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