Exner v Howe
[2023] VSC 603
•12 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03497
| BYRON EXNER | Plaintiff |
| v | |
| PAUL HOWE | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2023 |
DATE OF JUDGMENT: | 12 October 2023 |
CASE MAY BE CITED AS: | Exner v Howe |
MEDIUM NEUTRAL CITATION: | [2023] VSC 603 |
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ADMINISTRATIVE LAW — Judicial Review — Plaintiff convicted in County Court of entering premises in contravention of s 9(1)(e) of Summary Offences Act 1966 (Vic) — Whether conviction reasonably open — Whether irrelevant matters considered — No error — Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the First Defendant | S Clancy | Office of Public Prosecutions |
| For the Second Defendant | No appearance |
HIS HONOUR:
The plaintiff, Byron Exner, was in an intimate relationship with Donna van Doren from 2009 to 2017. There are two children of the relationship, who are now aged 13 and 8 years. The relationship ended acrimoniously. At various times, including in late 2017, van Doren obtained family violence intervention orders (‘FVIO’) against Exner.
Exner was charged with two offences contrary to s 9(1)(e) of the Summary Offences Act 1966 (Vic) (‘Summary Offences Act’) on the basis that in late 2019 he entered van Doren’s premises without authorisation or excuse. In April 2021 the Magistrates’ Court of Victoria sitting at Ballarat found him guilty of those offences and sentenced him to a period of imprisonment. Judge Riddell heard Exner’s appeal against his conviction and sentence in the County Court of Victoria in July 2022. On 15 July 2022 the trial judge found Exner guilty of the two charges, and re-sentenced him to a lesser period of imprisonment. That sentence did not result in a further period of incarceration because of time already spent on remand.
Exner seeks to review the decision of the trial judge on the following grounds:
The judgment was made without proper examination and consideration of the evidence presented to the court, As a result a ruling and judgement was made based on false and misleading evidence given under oath by the Complainant. I seek a review to determine a finding of not guilty or rehearing.
Exner argued that the trial judge should not have admitted and relied on certain evidence, and that the conclusion of guilt reached by the trial judge was not open to her, and was thus unreasonable. Exner made the following further submissions:
(a) critical evidence relied on by the prosecution was false;
(b) investigation by the informant and prosecution of the charges was inadequate in important respects; and
(c) his lawyers and counsel who appeared on his behalf at the County Court appeal did not follow his instructions and were incompetent.
Exner did not articulate how these complaints related to an arguable ground for judicial review.
Procedural history
On 3 March 2020, Exner was charged by police with two offences under s 9(1)(e) of the Summary Offences Act that he entered a private place without authority or excuse. The charges alleged that on 21 December 2019 and again on 24 December 2019 Exner entered the rear yard of van Doren’s premises ‘without express or implied authority from the owner or any lawful excuse’.
At the same time Exner was also charged with the offence of stalking under s 21A(1) of the Crimes Act 1958 (Vic) on the basis of his attendance at van Doren’s premises on 21 and 24 December 2019, and three charges of contravening a FVIO on 21 February 2020. The contravention charges related to telephone calls and text messages made by Exner to van Doren.
On 23 April 2021 Exner was found guilty of the two Summary Offences Act charges and two charges of contravening a FVIO. The Magistrate sentenced Exner to a total effective term of imprisonment of four months. It was noted that the 129 days Exner had spent on remand was reckoned as a period of imprisonment already served under the sentence.
Exner appealed to the County Court on both the conviction and sentence. The trial judge heard that appeal on 14 and 15 July 2022. Exner was represented by lawyers and counsel on the appeal.
At the commencement of the appeal the prosecution withdrew the two FVIO charges.
Exhibits tendered on the appeal included:
(a) an agreed statement of facts;
(b) screenshots of what were said to be text messages;
(c) a record of interview between the informant and Exner conducted on 9 March 2020.
The agreed facts included that on 21 and 24 December 2019 Exner attended van Doren’s premises.
A Federal Circuit Court of Australia order referred to in the agreed facts relevantly included:
(a) the mother have sole parental responsibility for the children of the relationship;
(b) the children live with the mother; and
(c) the children spend no time with the father.
On appeal, counsel agreed that the need to call van Doren’s children would be avoided by van Doren giving limited hearsay evidence about what they told her.
Evidence given by van Doren included:
(a) a FVIO current from late 2017 to late 2018 prohibited Exner from attending within 200 metres of her home;
(b) after their relationship broke up, she asked Exner by text and over the phone not to be at her premises;
(c) she sent the text messages to Exner, and he replied by text;
(d) she gave no indication to Exner between the text messages and 2019 that he was allowed to attend her property;
(e) she had provided CCTV footage showing Exner on her premises on 21 and 24 December 2019 to police;
(f) she identified the CCTV footage in the witness box.
There was no objection to the text messages and CCTV footage being tendered.
In cross-examination van Doren agreed that for a period in 2017 Exner had come to her house to pick up his children, that in late November 2017 she told Exner that he had two weeks to come to the house to collect some belongings, and that around the end of that period she obtained an interim FVIO. It was put to van Doren:
And I suggest to you that you might not have liked Mr Exner being at your house or around you, but you had told him that he could come to the house to see his kids and that he could come to your house to pick up his belongings?---Two years prior?
Yes?---Two years prior and then that was in 2017 and then I blocked him when the intervention I got, I blocked his number, I blocked him on social media and I had no conversations or any sort of contact with him until the day he turned up at my house two years later.
Van Doren said that while she had allowed Exner to come to her premises to see his daughters after they separated in early 2017, she revoked that permission in September 2017 when she sent the text messages.
Reasons
The fact that Exner attended van Doren’s property on 21 and 24 December 2019 was not in issue on the appeal. After setting out s 9(1) of the Summary Offences Act, the trial judge identified the matters in issue as follows:
The issue is whether he did so wilfully as a trespasser or with express or implied permission to enter, and, if he did attend without permission, whether the prosecution have established that he did not have a lawful excuse or legitimate purpose for his attendance.
The trial judge noted van Doren’s evidence that she had made it clear to Exner by text message, telephone and in person that she did not want him at the premises. The trial judge referred to the two tendered text messages. The first message, dated 14 August 2017 (‘August text exhibit’), was tendered in the following form:
The second text exhibit (‘September text exhibit’) is as follows:
At the appeal the exhibits were tendered without objection, and there was no challenge to the authenticity of them as text messages sent to Exner on the dates they bear.
In this proceeding Exner challenged the authenticity of the September text exhibit. He argued the lack of authenticity was obvious on the face of the exhibit and that, despite the lack of challenge by his counsel, the exhibit should not have been accepted by the trial judge as evidence of a text message sent by van Doren to him.
The trial judge noted van Doren’s evidence that Exner had not been present at her premises with her permission for any reason between October 2017 and December 2019. The trial judge noted that in cross-examination van Doren agreed that the September text exhibit included permission for Exner to attend her house to pick up his daughters for access visits, and that in November or December 2017 she had told Exner he had two weeks to collect belongings that were at her house. The trial judge noted that before the items were collected van Doren was granted an interim intervention order on 5 December 2017. It was not in issue that the intervention order remained in place for 12 months and prohibited Exner from attending van Doren’s premises. The trial judge referred to van Doren’s evidence that by late 2017 she had revoked any permission for Exner to come to her house.
The trial judge referred to Exner’s record of interview and his admission that he attended the premises on two occasions in December 2019. The trial judge referred to Exner’s statements that the only reason he attended van Doren’s premises was to see his daughters and to leave cards for them. The reasons record:
He was asked: ‘Do you feel that you’re welcome at the property?’ And answered:
Look, apart from the fact that my daughters there, welcome - I’d be welcomed by my daughters, but as far as Donna goes, no.
He agreed that he knocked on the door and, on getting no response, opened the back sliding door and placed the cards inside. On being shown CCTV footage, the accused acknowledged that he looked into the open garage, stating:
... to look and to see whether she still had my mower in there and other property of mine.
When asked, ‘What were you going to do if your mower was there?’ he stated:
I was gonna go, and my solicitor, and see if I can get it back.
When asked why he did not make contact before attending, he said:
I mean, she could have rung me and said, ‘Yeah, what do you want’, you know, and I would’ve said, ‘I just want to see my girls for Christmas’. Further, I didn’t go there to commit offences. I didn’t go there to break no laws. All I did was go to see my daughters and I looked in the garage to see if my stuff was there.
When asked how he thought Ms van Doren would respond, he said:
She would create a situation. Okay. Granted. I created the situation by going there. Yep. Shouldn’t have. In hindsight, I shouldn’t have gone there.
The trial judge concluded that by 14 September 2017 van Doren gave limited permission to Exner to attend at her premises for the purpose of picking up his daughters, but that that permission did not extend to a right to come onto the premises. The trial judge said arrangements to meet in a public setting for the purpose of Exner seeing his daughters, and obtaining an intervention order in December 2017 that positively prohibited Exner from being within 100 metres of her premises, was evidence of van Doren’s desire to limit Exner’s attendance at her premises. The trial judge said:
I accept Ms van Doren’s evidence that she had told the accused a number of times, in person and on the phone prior to October 2017, that she did not want him at her house. … At no time between then and December 2019 had the position changed. In fact, Ms van Doren stated in evidence that the state of the relationship was worse as at the December 2019 period.
The trial judge noted that in the period between October 2017 and December 2019 Family Court proceedings had been commenced and the Federal Circuit Court orders had been made. The trial judge noted that contact between Exner and van Doren during this period was limited to court hearings.
The trial judge concluded:
For clarity, I find beyond reasonable doubt that there was no express or implied authority given by Ms van Doren for Mr Exner to attend the property as at December 2019. I am satisfied beyond reasonable doubt that any earlier limited permission to do so had been revoked by Ms van Doren a long time prior. In my view, the factual circumstances here are of the kind contemplated by s9(1C)(a), namely that he was previously warned not to enter.
Turning to the accused’s state of knowledge, I am satisfied that he was aware he had no authority to be present on the property. I reach that point of satisfaction on the basis, firstly, of the communications made to him, secondly, on the basis of what he said in his record of interview.
The trial judge rejected a submission put for Exner that saying he would not be welcome at the premises by van Doren was not an acknowledgement by him of the lack of permission to attend. The trial judge said:
The accused also reiterated a number of times that he knew Ms van Doren was not at the house at the time he attended, which in my view supports my interpretation of his comments that he knew he would not be welcomed by her if she was present, that he did not have her permission to be there.
At no time during the interview did he say he had permission to attend or protest when the informant put to him that he should not be there. For example, when the informant said: ‘But if you knew that you weren’t supposed to be at the address, why did you go there?’ He answered: ‘To give them the cards.’
At the very least, I find the accused is reckless as to any authority to attend, that is, he believed that it was probable, not simply possible, that he had no right or authority to enter onto the premises.
The record of interview occurred after van Doren obtained a further FVIO against Exner in early 2020. Exner argued that in the record of interview he was talking about whether he was welcome or had permission to attend van Doren’s premises given the 2020 FVIO, and that he was not speaking about his understanding of that permission when he attended the premises on the two occasions in December 2019. Exner argued the trial judge’s construction of the record of interview was not open, and was unreasonable.
The trial judge concluded Exner did not have a lawful excuse or legitimate purpose for attending van Doren’s premises:
In circumstances of a relationship breakdown characterised by animosity, where there are family legal proceedings on foot, where there has previously been an intervention order and where there were no orders for contact for the father, it is not legitimate for him to arrive uninvited and unannounced in order to access his children. He acknowledged in the record of interview that: ‘Two and a half years ago, Donna refused to let me see the kids.’
Submissions
Exner submitted that for the following reasons the conclusion of guilt reached by the trial judge was not open on the evidence and therefore unreasonable. First, that the trial judge erred in accepting the September text exhibit as evidence of a text message sent to him by van Doren. Exner submitted that comparing the two text exhibits, it can easily be seen that the September text exhibit is not a text message. He submitted ‘that this typed note on van Doren’s phone was a deliberate act by her and the prosecution to deceive the court’.
Second, the trial judge erred by admitting into evidence and relying upon CCTV footage as evidence showing Exner at van Doren’s premises on 21 and 24 December 2019. Exner argued the footage had not been obtained by the informant direct from a hard drive, but was downloaded, doctored and false. He submitted the trial judge was wrong to rely on the footage. Exner submitted that the video footage was in extreme slow motion and there was a significant difference in clarity between the footage and still shot images. He argued the footage had been doctored, the dates had been changed, and ‘there was no accurate continuity of the evidence’. He submitted that a sufficient number of these matters should have been obvious to the trial judge such that the evidence should have been rejected.
Third, Exner submitted the trial judge was wrong to admit into evidence his record of interview without the attendance of the informant to prove the document. Further, Exner argued the trial judge was wrong to construe the content of the interview as an acknowledgement by Exner that he did not have permission to attend van Doren’s premises in December 2019, in circumstances where the record of interview was conducted after the 2020 FVIO. Exner argued any acknowledgement of lack of permission related to the prevailing circumstances in light of that order. In an affidavit filed in this proceeding, Exner said:
31.I consider the Court has accepted and wrongly interpreted the evidence and applied it to the offence of trespass. I believe the court has misunderstood evidence given in the record of interview. The court has not completely considered the timeline of events, the circumstance and misrepresentation of the informant at the time of the arrest and interview.
32. The fact is I was never denied access to the complainant’s property.
Analysis
Exner represented himself in this proceeding. Understandably, he did not formulate his application in terms of an accepted ground for judicial review. However, it is very difficult to understand the logic of his challenge to the trial judge’s decision. Exner accepts that he went on to van Doren’s premises on 21 and 24 December 2019. I had the following exchange with Exner at the hearing:
On the basis of that evidence, how could the trial judge have come to any other conclusion but that you didn’t have authority to attend the premises?---Because I went to the premises to actually seek permission to be at the premises, but there was no one home.
The first defendant characterised Exner’s complaint to be that it was not reasonably open for the trial judge to find him guilty of the two offences based on the evidence submitted on the County Court appeal. I accept the first defendant’s submission that on such a case Exner must demonstrate that the trial judge’s findings were legally unreasonable, in that there was no evidence to support the decision, or that the decision was illogical or irrational, or lacked an evident and intelligible basis.[1]
[1]Rees v County Court [2011] VSC 67, [20]–[26] (Cavanough J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [26]–[29] (French CJ), [63]–[72] (Hayne, Kiefel and Bell JJ), [88]–[90] (Gageler J); Marijancevic v Mifsud [2020] VSC 69, [7] (Richards J).
Another way of considering Exner’s case for review is that he was alleging jurisdictional error by the trial judge taking into account evidence that should have been rejected, and was therefore an irrelevant consideration.
Considered in either way, for the following reasons, Exner’s application for judicial review is without merit.
First, counsel for Exner did not object to the tender on appeal of the September text exhibit, the CCTV footage, or the record of interview. Nor was there any challenge to the authenticity of any of these exhibits. In relation to the record of interview, counsel appearing on the appeal reached a specific agreement that it could be tendered without the need for the informant to attend to give evidence.
Second, Exner’s counsel relied on the September text exhibit to demonstrate that in that period van Doren had consented to Exner attending at her premises for the purpose of collecting his daughters. Further, Exner’s counsel placed some reliance on aspects of the record of interview.
Third, there is no basis for an argument that the tendered exhibits were demonstrably false or lacking in authenticity, such that they should not have been admitted into evidence by the trial judge. In this proceeding Exner argued that the August text exhibit was clearly, on its face, a series of text messages, while the September text exhibit was not a text and could have been produced by van Doren on her phone as a note. Van Doren’s evidence was that she sent the September text exhibit to Exner. She was not challenged on this point. Whether the exhibit was in the form of sent messages stored in van Doren’s mobile phone is not to the point. There was no error by the trial judge in admitting the September text exhibit into evidence.
Exner’s objection to the slow speed and poor quality of the CCTV footage is not a basis for finding the trial judge was in error in admitting the exhibit into evidence. Exner’s fundamental complaint about the footage, and van Doren’s evidence in relation to it, was that it showed events on the wrong days. In other words, Exner argued that what van Doren said was footage of him on her premises on 21 December 2019 in fact showed him on the premises on 24 December 2019, and vice versa. There was no challenge to the footage on that basis on the County Court appeal.
Fourth, the reasons show the trial judge placed little if any reliance on the September 2017 text exhibit. There was ample evidence supporting the trial judge’s conclusion that there was no express or implied authority given by van Doren for Exner to attend her premises as at December 2019. Given van Doren’s evidence that Exner had not attended the premises for any purpose from October 2017, that she obtained an intervention order prohibiting his attendance in December of that year, and that she and Exner were involved in an acrimonious family law dispute in the period leading up to December 2019, it is not possible to see how the trial judge could have reached any other conclusion. Given Exner admitted going onto the premises, the trial judge had no need to rely on the CCTV footage.
Fifth, there is no basis for Exner’s complaint that the trial judge should not have accepted the tender of the record of interview without the attendance of the informant to give evidence, in circumstances where this course was agreed to by Exner’s counsel.
Sixth, there was nothing illogical or irrational about the trial judge’s treatment of the record of interview. In the interview the informant asked Exner questions about events on 21 December 2019, and stated that on that date there were no orders in place between van Doren and Exner, to which Exner agreed. Exner further agreed that he attended van Doren’s premises on 21 and 24 December 2019, and said that because no intervention order was in place he knew he would not be committing any offences. Exner said the only reason he went to the property was to see his daughters. He agreed he had not been invited to the property, and that he would be welcomed by his daughters ‘but as far as Donna goes, no’. Contrary to Exner’s submissions the reliance placed by the trial judge on the record of interview was logical and rational. The content of the record of interview supported the trial judge’s conclusion that Exner was aware he had no authority to be present on van Doren’s premises.
Three further complaints were made by Exner about his prosecution and the appeal. First, he argued, for reasons already explained, that the September text exhibit and CCTV footage was false evidence given by van Doren. Exner also alleged van Doren gave false evidence about the timing of her complaint to police after him going to her property in December 2019.
Second, Exner complained that an adequate and fair investigation by the informant would have demonstrated the falsity of van Doren’s evidence, thus undermining her credit as a witness. Exner argued this would have been relevant to whether van Doren’s evidence that she had repeatedly told Exner in 2017 that he did not have permission to attend the premises was accepted. Exner complained that instead of acting fairly the prosecution charged him with a ‘hamburger with the lot’.
Third, Exner complained that his lawyer and counsel failed to follow his instructions by not challenging van Doren’s evidence, in particular about the CCTV footage, and by failing to require the informant to attend for cross-examination. Exner complained that counsel who represented him on the appeal was incompetent.
It is difficult to see any substance or possible relevance in these complaints. The factual dispute in relation to the charges was understandably narrow. It was not in issue that Exner had attended van Doren’s premises on the two occasions in late 2019. Nor were the December 2017 intervention order, the Federal Circuit Court orders in relation to the children, or the fact that Exner had not attended van Doren’s premises for over two years up to December 2019 in issue.
Exner is bound by the forensic decisions made by his counsel in the conduct of the appeal.[2] He made no complaint about the conduct of the appeal by the trial judge in respect of these further matters. He did not allege that deficiencies in the conduct of the investigation by the informant, or the conduct of his defence on the appeal by his lawyers, were such that a failure by the trial judge to intervene resulted in a miscarriage of justice. Nor did Exner explain how these complaints translated into a ground for judicial review of the decision of the trial judge. Had that argument been made by Exner, it would have been without basis.
[2]Koch v The Queen [2013] VSC 677, [25] (Emerton J).
Conclusion
The proceeding will be dismissed.
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