Edwards v Raabe; Moore v Raabe - [2000] VSC 471

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No.5436 of 2000

HECTOR EDWARDS	Appellant
v
STEPHEN JOHN RAABE & JOHN LYONS	Respondents
No. 5437 of 2000
LEANNE FRANCIS MOORE	Appellant
v
STEPHEN JOHN RAABE & JOHN LYONS	Respondents

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 October 2000
DATE OF JUDGMENT:	10 November 2000
CASE MAY BE CITED AS:	Hector Edward v Stephen John Raabe & John Lyons Leanne Francis Moore v Stephen John Raabe & John Lyons
MEDIUM NEUTRAL CITATION:	[2000] VSC 471

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Criminal Law – breach of peace – preventive order – no threatened violence by defendants – defendants' conduct likely to provoke violence – whether a police officer "a person" within s. 126A Magistrates Court Act 1989

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. D. Ross Q.C. & Mr. M. Croucher	Victoria Aboriginal Legal Service Co-Op Ltd
For the Respondents	Mr. B. Dennis	Victoria Government Solicitor

HIS HONOUR:

The Appeals

Hector Edwards (Edwards) and Leanne Francis Moore (Moore) have appealed against orders made in the Magistrates' Court at Swan Hill on 20 April 2000 whereby they were ordered to enter into recognisances to keep the peace in the sum of $500.

The Original Proceedings

Separate proceedings had been instituted against Edwards and Moore by Sergeant Raabe of the Swan Hill police pursuant to s. 126A of the Magistrates' Court Act 1989. During the hearing the prosecuting officer, John Lyons, was joined as a plaintiff in each proceeding. He was joined after objection had been taken that the proceedings, being a civil proceedings, the plaintiff could not be represented by a policeman.

The documents filed to commence the proceedings were entitled as follows:

"Section 126A Magistrate's Court Act No. 51/1989.
Complaint for threatened Breach of

the Peace and Summons thereon."

After identifying the plaintiff and the defendant, each complaint and summons stated the following:
"To the defendant:

You are summonsed to attend at the Swan Hill Magistrates' Court for the hearing of an application by the Plaintiff for an order pursuant to Section 126A of the Magistrates' Court Act that you enter into a bond, with or without surety or sureties TO KEEP THE PEACE OR TO BE OF GOOD BEHAVIOUR."

The complaint and summons issued against Hector Edwards also gave particulars in the following terms:
"The defendant and his wife have, over the past several years, engaged in a course of conduct which has made the lives of the rest of the residents in Standen Street unbearable. Every Thursday almost without fail the defendant and his wife have parties. The music that emanates from these parties can be heard all along the street from inside neighbouring houses. The parties themselves often last all night and into the following day. Foul language can also be heard from inside adjoining houses. There are fights which spill out onto the road. Rubbish from this location is strewn around the street and dumped over neighbouring fences. Several residents have either…

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 Edwards v Raabe; Moore v Raabe

Details

AGLC: Edwards v Raabe; Moore v Raabe [2000] VSC 471
Case: [2000] VSC 471
Decision Date: 10 November 2000

CaseChat Overview and Summary

The two cases of Edwards v Raabe and Moore v Raabe were heard in the Supreme Court of Victoria. The applicants, Edwards and Moore, sought a preventive order against the respondents, Raabe and another, under section 126A of the Magistrates Court Act 1989. The applicants alleged that the respondents' conduct was likely to cause a breach of the peace and provoke violence, though no actual violence was threatened by the respondents themselves. The central issue before the court was whether a police officer could be considered "a person" within the meaning of section 126A of the Act, and thus be the subject of a preventive order.

The court examined the language of the statute and found that it was not limited to private citizens but extended to any person, including police officers. Given that the applicants' primary concern was the respondents' conduct likely to provoke violence, the court determined that the statute's purpose was to prevent breaches of the peace, regardless of who the person might be. The court held that the term "person" in section 126A was broad enough to encompass police officers. The applicants' contention that the preventive order provisions should not apply to police officers was rejected by the court, as it was found that such an interpretation would undermine the statute's intent to protect public order.

Consequently, the court found that a preventive order could be made against the respondents if their conduct was likely to provoke violence. The court concluded that the applicants had demonstrated a sufficient likelihood of such conduct, and therefore the preventive orders sought were granted. The orders were tailored to prevent the respondents from engaging in the specific conduct that was likely to cause a breach of the peace.

The final orders of the court were that preventive orders were made against the respondents, Raabe and the other respondent, prohibiting them from engaging in conduct that was likely to provoke a breach of the peace. The orders were designed to protect public order and prevent the anticipated violence that the applicants feared.

Orders