Conomy v Maden
[2016] WASCA 31
•18 FEBRUARY 2016
CONOMY -v- WESTERN AUSTRALIAN POLICE [2016] WASCA 31
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 31 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:114/2015 | 19 JANUARY 2016 | |
| Coram: | BUSS JA MAZZA JA MITCHELL J | 18/02/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JERROD JAMES CONOMY WESTERN AUSTRALIAN POLICE |
Catchwords: | Criminal law Application for leave to appeal from Supreme Court's decision to refuse leave to appeal Breach of violence restraining order Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), pt 2 div 3 Restraining Orders Act 1997 (WA), s 61 |
Case References: | Conomy v Maden [2016] WASCA 30 Conomy v Western Australian Police [2015] WASC 178 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CONOMY -v- WESTERN AUSTRALIAN POLICE [2016] WASCA 31 CORAM : BUSS JA
- MAZZA JA
MITCHELL J
- Appellant
AND
WESTERN AUSTRALIAN POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTINO J
Citation : CONOMY -v- WESTERN AUSTRALIAN POLICE [2015] WASC 178
File No : SJA 1010 of 2015
Catchwords:
Criminal law - Application for leave to appeal from Supreme Court's decision to refuse leave to appeal - Breach of violence restraining order - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), pt 2 div 3
Restraining Orders Act 1997 (WA), s 61
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Conomy v Maden [2016] WASCA 30
Conomy v Western Australian Police [2015] WASC 178
1 REASONS OF THE COURT: The appellant was convicted of breaching a violence restraining order, with which he had been personally served, by sending text messages to the complainant on 13 August 2013. The prosecution notice alleged that offence against s 61(1) of the Restraining Orders Act 1997 (WA), which provides:
A person who is bound by a violence restraining order and who breaches that order commits an offence.
2 The appellant admitted that, on 13 February 2013, he was served with an interim violence restraining order which named him as a person bound by the order,1 and which relevantly provided that the appellant must not:
Communicate or attempt to communicate with [the complainant] by any means whatsoever including SMS or text messages or other electronic means.
3 The complainant gave unchallenged evidence that, on 13 August 2013, she received three text messages from the phone number she has always known as the appellant's. The text messages, sent at 11.37 am, 2.21 pm and 2.47 pm, read:
I miss you!
97.3
I'll be at the quarry tomorrow between 1pm and 1.30pm. If your not there I'll know I need to forget you and move on …
4 The respondent, a police officer, gave unchallenged evidence that he attended Quarry Park in Meadow Springs at 1.04 pm on 14 August 2013 and found the appellant sitting in a parked vehicle. The appellant was arrested, and participated in a video-recorded interview with police (recorded interview). In the part of the recorded interview received as evidence, the appellant admitted sending the text messages,2 and accepted that his actions were in breach of the restraining order.3
5 The appellant was convicted of the offence after trial by a magistrate on 16 January 2015. The magistrate fined the appellant $1,200 and made a spent conviction order. The magistrate found that the appellant had been served with the interim violence restraining order and inferred that the order was still current on 13 August 2013. The magistrate was also satisfied that the appellant sent the text messages in breach of the order.4
6 On 29 May 2015 the primary judge refused the appellant's application for leave to appeal to the Supreme Court against his conviction and sentence, and dismissed his appeal.5
7 The appellant now seeks leave to appeal to this court against the primary judge's refusal to grant leave to appeal on grounds relating to his appeal against conviction. His grounds of appeal run to 11 closely-typed pages, and are not usefully reproduced in full here. In essence they raise four issues.
8 First, the appellant complained that the DVDs of the recorded interview should not have been admitted in circumstances where the discs he was given when served with disclosure material for the charge were labelled differently (discs 3 and 4, rather than discs 1 and 2) and were blank. There is no substance in that contention. The labelling of the discs was immaterial. The appellant made it clear at trial that he was aware of what was said at the interview.6 Even if the discs sent to the appellant were blank, he was clearly aware of their contents by some other means when the trial commenced. There was no issue about the authenticity of the recording. There is no challenge to the magistrate's finding that the appellant participated in the interview voluntarily after being given a caution that he did not need to participate, and understood the questions he was asked.7 The part of disc 1 which was tendered was played in open court, so the appellant was aware of the contents of the exhibit when he made his decision as to whether or not to give evidence at trial. The appellant did not apply for an adjournment of the trial, and indicated that he wanted the trial to proceed when told he might apply for an adjournment.8 There is no basis for contending that the DVD of the recorded interview was inadmissible, or that its receipt by the magistrate involved any unfairness to the appellant.
9 Secondly, the appellant says that the magistrate erred by basing his decision on the video evidence which was 'not worthy of any significant weight'. However, the magistrate based his decision on all of the evidence before him and indicated that, even without reference to anything the appellant had said in the recorded interview, there was a compelling case that he had breached the order.9 There is no basis for an argument that the magistrate made some error in the weight he gave to the evidence of the recorded interview.
10 Thirdly, the appellant contends that the evidence was not capable of establishing, beyond reasonable doubt, that the interim violence restraining order was still in force, and had not been amended, on 13 August 2013. The magistrate found that the irresistible inference on the evidence was that the order was still current at the time the alleged offending occurred.10 It was open to the magistrate to reach this conclusion.
11 The provisions of the Restraining Orders Act relating to the operation of the same order are noted in Conomy v Maden.11
12 It was implicit in the complainant's evidence that the interim order was still in force. The appellant made no suggestion to any witness in cross-examination that the interim order was not still in force. The statements by the appellant in his recorded interview acknowledging that he had breached the restraining order reflect his understanding that the order was still in force.12 Those answers were relevant as they tended to suggest the order had not been cancelled or materially amended as, if it had, the appellant would ordinarily have been aware of that fact.13 The answers also indicated that litigation about the restraining order was ongoing, giving rise to the inference that the final hearing in relation to the interim order was not complete.14 There was nothing in the evidence to suggest that the interim order had been cancelled or amended, or otherwise ceased to be in force. In these circumstances it was open to the magistrate to be satisfied beyond reasonable doubt that the interim order made in February 2013 was still current on 13 August 2013.
13 Fourthly, the appellant contends that the appeal to this court should be allowed on the basis that the primary judge's reasons were inadequate. There is no merit in those criticisms. The primary judge's reasons explain why he concluded that none of the grounds had any reasonable prospect of success. The basis for his decision is apparent from the reasons.
14 We have reviewed the evidence and the considerable detail of the appellant's grounds of appeal and submissions in this court and before the primary judge. Having done so, we are not satisfied that any of the appellant's grounds of appeal have any reasonable prospect of success. The application for leave to appeal and the appeal should be dismissed.
1 See the definition of 'person who is bound' in s 3 of the Restraining Orders Act.
2 Recorded interview disc 1, 0.23 - 0.25.
3 Recorded interview disc 1, 0.15.
4 ts 326 - 329 (16 January 2015).
5Conomy v Western Australian Police [2015] WASC 178.
6 ts 229, 231 (16 January 2015).
7 ts 307 (16 January 2015).
8 ts 274, 280 (16 January 2015).
9 ts 327 (16 January 2015).
10 ts 327 (16 January 2015).
11Conomy v Maden [2016] WASCA 30 [101] - [104].
12 Recorded interview disc 1 at 0.13 - 0.15 and 0.20.
13 Section 49(3) of the Restraining Orders Act.
14 Recorded interview disc 1 at 0.13 - 0.20.
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