Dorian v Police - [2011] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DORIAN v POLICE
[2011] SASC 60
Judgment of The Honourable Justice Sulan
14 April 2011
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - OTHER ORDERS
Appeal against conviction for failure to comply with restraining order - whether defendant attending outside the premises constitutes a contravention of the order - whether Magistrate erred in inferring a wide interpretation of order - express terms of order not incapable of achieving specific purpose - Magistrate erred in applying purposive construction to imply additional restraints - appeal conceded by Crown - appeal allowed - conviction set aside and verdict of acquittal entered.
Summary Procedure Act 1921 (SA) s 99(3), s 99(4), s 99A(2), referred to.
McIntosh v Police [2007] SASC 24, distinguished.
Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182; Krakouer v The Queen (1998) 194 CLR 202, considered.

DORIAN v POLICE
[2011] SASC 60
Magistrates Appeal: Criminal

SULAN J: The defendant, Colin David Dorian, was found guilty by a Magistrate that on 22 January 2011 he failed to comply with a restraining order which had been imposed in the Holden Hill Magistrates Court on 1 October 2008. The restraining order had been issued upon the application of Ms Zapris, the defendant’s former partner. The order restrained the defendant from attending any premises at which Ms Zapris resided or worked. The defendant was observed outside the home at which Ms Zapris resided.
At the hearing of the appeal on 23 March 2011, the respondent conceded that the appeal should be allowed. I allowed the appeal, and ordered that the conviction be set aside. I now publish my reasons.
Background
The defendant’s former partner sought and obtained a restraining order, pursuant to section 99 of the Summary Procedure Act 1921 (SA), to restrain the defendant from attending at her premises. Subsections 99(3) and 99(4) provide:
99 – Restraining orders
…
(3) A restraining order may impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner.
…
(4) The Court may make a restraining order restraining the defendant from entering premises, or limiting the defendant’s access to premises, whether or not the defendant has a legal or equitable interest in the premises.
The terms of a restraining order can be limited or can be broad, having regard to the circumstances of a particular case. Subsection (4) empowers the Court to make orders restraining a person from entering specific premises.
The restraining order was varied from time to time. On 30 April 2009, the restraining order was varied as follows:
Other than by invitation or prior arrangement, defendant is not to attend any premises that Mary Louise Pip Zapris may from time to time reside or work. (underlining is mine)
It is alleged that the defendant attended at Ms Zapris’ premises at around 9 pm on Friday, 22 January 2011. Police were present at the time, after…

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 Dorian v Police

Details

AGLC: Dorian v Police [2011] SASC 60
Case: [2011] SASC 60
Decision Date: 14 April 2011

CaseChat Overview and Summary

In the matter of Dorian v Police, the appeal was brought against the defendant’s conviction for failing to comply with a restraining order. The restraining order, obtained by the defendant’s former partner, prohibited the defendant from attending at her premises unless by invitation or prior arrangement. The dispute arose from an alleged contravention of this order when the defendant was said to have attended at the premises on a specified date. The appeal was heard and determined by the court, which ultimately allowed the appeal and set aside the conviction, entering a verdict of acquittal.

The central legal issue before the court was whether the defendant’s presence on the footpath adjacent to the premises constituted a contravention of the restraining order. Specifically, the court had to determine whether the terms of the order could be interpreted to include restrictions on the defendant's presence on the footpath. The restraining order explicitly limited the defendant’s access to the premises, but did not mention the footpath. The court was tasked with deciding if the order’s purpose could be sufficiently achieved by implying additional restraints beyond the explicitly stated terms.

The court found that the Magistrate had erred in applying a purposive construction to the restraining order that implied additional restraints beyond its express terms. The court emphasised that the terms of the restraining order were specific and could achieve the purpose of preventing the defendant from acting in the apprehended manner without needing to imply further restrictions. The Magistrate’s interpretation of the order as prohibiting the defendant’s presence on the footpath was deemed an overreach, as it extended the explicit terms of the order without justification. The Crown conceded the appeal, leading the court to allow the appeal, set aside the conviction, and enter a verdict of acquittal.

The final orders of the court were to set aside the conviction and enter a verdict of acquittal, reflecting the court's determination that the defendant’s presence on the footpath did not contravene the specific terms of the restraining order.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of the appeal on 23 March 2011, the respondent conceded that the appeal should be allowed. I allowed the appeal, and ordered that the conviction be set aside. I now publish my reasons.Background The defendant’s former partner sought and obtained a restraining order, pursuant to section 99 of the Summary Procedure Act 1921 (SA), to restrain the defendant from attending at her premises. Subsections 99(3) and 99(4) provide:99 – Restraining orders…(3) A restraining order may impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner.…(4) The Court may make a restraining order restraining the defendant from entering premises, or limiting the defendant’s access to premises, whether or not the defendant has a legal or equitable interest in the premises. The terms of a restraining order can be limited or can be broad, having regard to the circumstances of a particular case. Subsection (4) empowers the Court to make orders restraining a person from entering specific premises. The restraining order was varied from time to time. On 30 April 2009, the restraining order was varied as follows:Other than by invitation or prior arrangement, defendant is not to attend any premises that Mary Louise Pip Zapris may from time to time reside or work. (underlining is mine) It is alleged that the defendant attended at Ms Zapris’ premises at around 9 pm on Friday, 22 January 2011. Police were present at the time, after which they briefly spoke to the defendant and arrested him. The issue at trial was whether or not it had been proven beyond reasonable doubt that the defendant attended the premises. I will briefly deal with the facts. The exact location of the defendant on the relevant night was in contention at trial. The defendant’s ex-partner gave evidence that she saw the defendant on her driveway speaking to police. A police officer, Constable Gough, gave evidence that he first saw the defendant on or about the position in which there are two stormwater drains leading from the adjoining properties out on to the street. The defendant had not entered the land or premises. The position was identified by the witness on a diagram as a position on the footpath adjacent to the neighbouring property. The defendant gave evidence that he was outside the premises on the footpath.Findings of the Magistrate The Magistrate was satisfied beyond reasonable doubt that Constable Gough’s recollection of the position of the defendant was accurate. However, he considered it possible that the defendant could have been on the driveway, as described by Ms Zapris, and that Constable Gough did not see this. He made no positive finding of that fact beyond reasonable doubt. Having been satisfied beyond reasonable doubt that Constable Gough’s evidence was accurate, he found the defendant guilty. Counsel for the Police accepts that the conclusion to be drawn from the Magistrate’s reasons is that he was satisfied beyond reasonable doubt that the defendant was on the footpath adjacent to the neighbouring property, close to but not within the border of the relevant premises. The Magistrate concluded that the defendant, being on the footpath near the driveway, constituted a contravention of the restraining order.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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