Dawes v Coyne
[2000] WASCA 134
•19 MAY 2000
DAWES -v- COYNE [2000] WASCA 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 134 | |
| Case No: | SJA:1018/2000 | 3 MAY 2000 | |
| Coram: | MILLER J | 19/05/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Violence restraining order set aside | ||
| PDF Version |
| Parties: | BELINDA JANE DAWES HARLEY PETER COYNE |
Catchwords: | Violence restraining order Appeal from decision of Magistrate to place complainant on such order Power of Magistrate to make restraining order against "any other person who gives evidence" Restraining Orders Act 1997, s 63(2) Appellant not given any opportunity to be heard |
Legislation: | Restraining Orders Act 1997, s 29(3), s 32, s 63 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HARLEY PETER COYNE
Respondent
Catchwords:
Violence restraining order - Appeal from decision of Magistrate to place complainant on such order - Power of Magistrate to make restraining order against "any other person who gives evidence" - Restraining Orders Act 1997, s 63(2) - Appellant not given any opportunity to be heard
Legislation:
Restraining Orders Act 1997, s 29(3), s 32, s 63
Result:
Appeal allowed
Violence restraining order set aside
(Page 2)
Representation:
Counsel:
Appellant : Ms F S Tenna
Respondent : No appearance
Solicitors:
Appellant : Director of Legal Aid
Respondent : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: On 12 April 1999 the appellant obtained against the respondent in the Court of Petty Sessions, Albany a violence restraining order under the provisions of the Restraining Orders Act 1997 ("the Act"). This order was an interim order pursuant to the provisions of s 29(3) of the Act and it prohibited the respondent from (inter alia) committing or attempting to commit any violent personal offence as defined in the Act against the appellant; communicating or attempting to communicate by whatever means, apart from letters, with the appellant; entering upon any premises where the appellant lived (apart from certain exceptions which are not relevant to these proceedings) or behaving in an intimidatory or offensive manner towards the appellant. The order being an interim one, it was, on 14 May 1999, made a final order under the provisions of s 32 of the Act.
2 Meanwhile, on the night of 10 May and early hours of the morning of 11 May 1999, the respondent, in breach of the order, made contact with the appellant at her home in Albany. In consequence he was charged with four breaches of the order and also with having unlawfully assaulted the appellant. The breaches of restraining order respectively alleged that on 11 May 1999 the respondent had, in breach of the order, entered the property at 37 Stephen Street, Albany and communicated with the appellant (two charges); and breached the order by communicating with the appellant by telephone (a further two charges).
3 The complaints came before Mr R H Burton SM in the Court of Petty Sessions at Albany on 21 January 2000 when the respondent was present and represented by counsel. Evidence was given by the appellant who testified that she was a schoolteacher by occupation and had been in a relationship with the respondent for a period of approximately six years, that relationship ceasing "totally" on 18 September 1999. The appellant detailed the events of Monday night, 10 May 1999, and the early hours of Tuesday 11 May 1999. She said that she had received a telephone call from the respondent on the evening of 10 May in which the respondent asked the appellant whether she had received an e-mail from him requesting that she ring him back after he had been to work at about 11pm. The appellant did contact the respondent in accordance with this request but according to the appellant the respondent was angry that she rang him. She thereupon went to bed and next recalled being awoken by the telephone, discovering that it was the respondent who was calling. The appellant spoke with the respondent for five to ten minutes, left the telephone off the hook and eventually hung up. Thereafter she received a further call from the respondent whom she asked to leave her alone and hung up. She had no recollection of any further calls. The next she knew
(Page 4)
- was that the respondent appeared in her bedroom at a time which she had first thought was 12.30pm but upon reflection, considered must have been 2.30am. The appellant testified that the respondent had sat on her bed and become angry with her because she had not been at work that day. The respondent's son and the son's partner then arrived at the house and came into the room and at some time thereafter the respondent and his son left the house. The next thing that the appellant knew was that the respondent rang again, the time then being around 3.30am. Shortly after this, the appellant testified to having heard something out the back of the house and upon going to investigate she found the respondent standing on the other side of the back gate, whereupon he came into the property and grabbed the appellant around the neck demanding that he be able to take the car from the driveway. This he apparently did after the appellant had got away from him and gone inside and locked the door.
4 The appellant was extensively cross-examined by counsel for the respondent and it was put (inter alia) that the respondent's arrival at the appellant's home on the night in question on the first occasion was because of the respondent's concern for the appellant. A totally different account of events was put to the appellant, including the proposition that she had actually been at the respondent's house during the course of the early hours of the morning and it was there that he had grabbed her and shaken her, asking her what she was doing at his house. All of this was totally denied by the appellant. The respondent gave no evidence at the hearing but a video record of interview between the respondent and an investigating police officer was tendered in evidence and played to the Court.
5 Counsel for the respondent submitted to the learned Magistrate that it was necessary to look at the context of the relationship between the two parties and it was urged that the account of the respondent given in his video recorded interview was that which the learned Magistrate should accept, the result being that in essence the communications made by the respondent with the appellant were entirely consensual from the appellant's point of view and therefore could not constitute breaches of the order.
6 The learned Magistrate decided the matter after hearing submissions. He began by stating that it was a tragedy that "domestic matters of this sort get into the criminal court" and made the observation that "both parties had been causing trouble for the police who do not want to be involved in these sort of things". The learned Magistrate's observations that the matters in question were merely "domestic" and should not get
(Page 5)
- into the criminal court were entirely inappropriate. Allegations of unlawful assault and breaches of restraining order were matters properly the subject of a complaint and the proper place for the resolution of those complaints was in the Court of Petty Sessions. Further, the observation that both parties had been causing trouble for the police is difficult to understand from the evidence but whether it be true or not, it was wrong for the learned Magistrate to make the statement that police did not wish to be involved in matters of breach of restraining order and assault in the circumstances of this case.
7 The learned Magistrate pointed out that the testimony of the appellant in relation to the events in question differed markedly from the video recorded statement of the respondent and that the two accounts were "quite inconsistent with each other". He concluded that the content of the video recorded interview left him with "a doubt" which meant that the charge of assault must be dismissed. His Worship then referred to the issue of consent which he found to be a defence in relation to charges of breach of a restraining order. The learned Magistrate then dismissed the first charge because he believed there was "consent involved in that" but in relation to the charge of entering the bedroom of the appellant (the second of the charges) he found the charge proven and convicted the respondent, although stating that "he went there and both parties have acted with good will in this, albeit misdirected good will". Just what this meant it is difficult to understand.
8 The learned Magistrate then convicted the respondent on the third charge, which related to the telephone call made at 0049 hours (a time at which the respondent had contended in his video record of interview he was at the house, but which telephone records revealed a telephone call from his number to the appellant's number at that time). The Magistrate then dismissed the fourth charge but without explaining why. He then proceeded without warning to place the appellant on a violence restraining order. What his Worship said was as follows:
"HIS WORSHIP: Yes. I -- I convict him of count 3 and I dismiss the count 4. That is what I do. Then I also do something else. What I do and I have got the power to do it; I am going to place the complainant on a restraining order, a violence restraining order in exactly the same terms as the one that exists in relation to the defendant. That is all I wish to say. Yes; thank you. That deals with that matter thanks."
(Page 6)
9 The power of a Magistrate to make a restraining order during other proceedings is contained within s 63 of the Act. Section 63(2) provides that a court before which a person charged with an offence is appearing may make a restraining order against that person or any other person who gives evidence in relation to that charge. Section 63(3) provides that such a restraining order may be made at the request of a party or on the initiative of the court itself. However, there is a safeguard contained within s 63(4) which is as follows:
"(4) A court is not to make a restraining order under subsection (2) unless -
(a) the court is satisfied that there are grounds for making the order under section 11 or 34, as is appropriate to the case;
(b) the court has had regard to the matters set out in section 12 or 35, as is appropriate to the case; and
(c) the person is present when the order is made and has been given an opportunity to be heard on the matter."
11 In my view no good purpose would be served by sending the matter back to the Court of Petty Sessions for further consideration. Apart from the fact that it is difficult to glean from the transcript of the proceedings on 21 January why a restraining order should have been made against the appellant, the fact is that on 26 November 1999 a fresh violence restraining order was made against the respondent on the application of the appellant. This was a fully defended hearing at which the respondent had sought a violence restraining order against the appellant but his application in that regard was dismissed.
(Page 7)
12 For these reasons I allow the appeal and set aside the violence restraining order made by the learned Magistrate against the appellant in the Court of Petty Sessions at Albany on 21 January 2000.
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