Farthing v Phipps

[2010] NSWDC 317

CITATION:	Farthing v Phipps [2010] NSWDC 317
HEARING DATE(S):	18 October 2010
JUDGMENT DATE:	18 October 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Lakatos SC DCJ
DECISION:	Appeal allowed; Orders of Magistrate quashed
CATCHWORDS:	CRIMINAL LAW - Appeal against Apprehended Violence Order - MENTAL HEALTH - Utility of order made against mentally ill person - Capacity to understand terms of order
LEGISLATION CITED:	Crimes (Domestic and Personal Violence) Act 2007
CASES CITED:	R v Presser [1958] VR 45 John Fairfax Publications Pty Limited v The Ryde Local Court (2005) 62 NSWLR 512
PARTIES:	B Farthing K Phipps
FILE NUMBER(S):	2010/47914
COUNSEL:	M J Ierace SC P R Coady

JUDGMENT

1 HIS HONOUR: On 7 June 2010 the learned Local Court Magistrate, Mr Cheetham, made an order at the Manly Local Court pursuant to s 16 of the Crimes (Domestic and Personal Violence) Act 2007 directed towards the appellant Ms Phipps. The person in need of protection was Mr Farthing. The appellant has appealed to this Court against the making of the order.

2 I have read the short transcript of the Local Court hearing and also an extensive number of exhibits which were tendered before his Honour. There was a measure of common ground, in fact a great measure of common ground between the parties in the present appeal. Both Ms Phipps, the appellant, and Mr Farthing, the person in need of protection, are handicapped persons. Both of them in 2005 or thereabouts, were thrown together in a common accommodation situation, notwithstanding apparently some serious concerns, which were expressed by those persons who knew both of them, about the compatibility of the living arrangement. In that respect it is regrettable about how this turned out, because it appears that the parties were put together not through their own choice but by, no doubt, well meaning persons but apparently not well informed ones concerning potential problems which were to arise. Indeed, the problems did arise and they resulted in, if I can put it neutrally, the abuse and assault by Ms Phipps upon her housemate, Mr Farthing. That apparently was not a one off situation. It appears that there had been some considerable problems prior to that, all of which stem not from any malicious intent by either person involved it appears, but by a function of their psychological makeup.

3 The substance of the facts which were conceded are set out in Mr Farthing’s two affidavits, which were exhibits 1 and 2 before the Local Court. In the first affidavit of 16 March Mr Farthing says that in 2005 the Department of Ageing Disability and Homecare decided that a fellow client, namely Ms Phipps, of the House of No Steps Independent Living Program should move into his apartment. He says that she continued on a regular basis to verbally abuse and threaten him. Furthermore, he said that she often hit him and made threats including the use of a knife.

4 On the relevant day which gave rise to the events necessitating the apprehended violence order, namely 10 February 2010, it appears that a further argument took place. A Homecare assistant, Ms Wishart, arrived at the premises and overheard or saw part of what went on. There was yelling and abuse and it appears that Ms Phipps struck Mr Farthing with her open hand across the back of his head and neck. That caused Mr Farthing, understandably, distress and ultimately he brought these proceedings for an apprehended violence order.

5 Mr Ierace SC who appears for the appellant, indicates that since that time Ms Phipps and Mr Farthing have been separated. They live in different locations, still in the Northern Beaches area, that the likelihood of their coming into contact is on three occasions, and on those occasions those supervising them will take extra steps to ensure that there is no repeat of any abusive conduct by Ms Phipps towards Mr Farthing.

6 I should say that exhibit 2, which was the affidavit of Mr Farthing of 7 June 2010, indicated that as of that time, and I presume presently, that he maintains that he is still in fear of abuse and violence from Ms Phipps. He indicates that they may come into contact at certain social events including the Manly Leagues Club and also at the Warringah Shopping Mall where apparently both parties attend from time to time.

7 There is little doubt, as the learned magistrate found, that absent matters of intellectual capacity, there were good grounds for the making of an apprehended violence order. In particular, it seems plain, based on that evidence, that there was material on which the Court could be satisfied on the balance of probabilities that a person, namely Mr Farthing, who had a domestic relationship, had reasonable grounds to fear and in fact feared personal violence by another person.

8 I note that the term “domestic relationship” is defined in s 5 of the Act. Relevantly s 5D says that a person is in a domestic relationship with another where they are living or have lived in the same household in effect, and that of course was the situation in February 2010.

9 The critical issue in the Court below and indeed in this Court was whether by reason of Ms Phipps’ mental deficiencies, if I can put it without any connotations, that an order of the kind which the learned magistrate made ought to have been made. His Honour considered a significant quantity of medical material, and ultimately determined that the operative factor in the Act was the protection of the person who was in fear. In his Honour’s view, by reason of that operative factor and notwithstanding the significant material concerning Ms Phipps’ mental issues, he determined that an apprehended violence order for a term of six months should be made. In my view, with the greatest respect to his Honour, his Honour failed to take into account a matter which I consider to be centrally relevant here.

10 In the present case Mr Ierace SC, who appeared for Ms Phipps, put his argument on two bases. The first was by reference to the test in the well known case of R v Presser about fitness to plead, that the proceedings were in the Local Court and are in this Court, substantially and unreasonably unfair to Ms Phipps because her mental condition does not allow her to properly participate in the process of the making of the order. He contends that by reason of that matter the order should not have been made. In the alternative he argues that because the evidence, or the weight of it suggests that Ms Phipps is unable to properly comprehend the intricacies of the order made by his Honour, that accordingly it would be unfair to impose such a requirement on any person given that he or she may contravene the orders unknowingly, and that such contravention would lead to the imposition of a criminal sanction, perhaps even a custodial term. Mr Ierace SC argues that these are in the nature of criminal proceedings.

11 As I indicated in the course of argument, I have much sympathy for the philosophy which underpins the submissions on behalf of the appellant. However for reasons which I will express, in my view I am not, given my position in the judicial hierarchy, the judge or judicial officer to advance the law by a step which in my view, it has not advanced up-to-date based on the authorities that have been provided to me.

12 The evidence in this Court, comprised the transcript of the Court below as well a substantial number of medical reports by various treating and other treating psychiatrists and psychologists who have had contact with Ms Phipps.

13 A member of the Guardianship Board gave evidence in the Court below and she was Ms Amelia Masaka. She told the Court that the tribunal hears applications as to guardianship and set out the tests which the tribunal applies. She also indicated that the Guardianship Board was assisting in the finding of alternative accommodation. She was relevantly asked at page ten of the transcript: “The other matter I wanted to ask you is does Ms Phipps understand the domestic violence legislation?” Her answer: “No”, and then it’s not transcribable, and there is another answer which does not elaborate on that matter. I apprehend that the substance of Ms Masaka’s evidence was that Ms Phipps did not understand the domestic violence legislation.

14 There are two other sources of evidence in relation to this. Firstly, the oral evidence of Ms Carly Armitage given in this appeal and also Mr Michael Heffernan. Ms Armitage is a support worker and I will review her evidence in a moment. Mr Heffernan is Ms Phipps’ solicitor, or has been in the Local Court. And secondly, the psychiatric report of Dr Peter Wurth of 18 August 2010.

15 Ms Armitage in the present case gave evidence that she was a community support worker with the House of No Steps and has been employed in that capacity since July 2008. She has a number of qualifications including a Certificate Three in Disabilities. She has had contact with Ms Phipps for approximately seven to eight hours on an average over the time that she has been dealing with her, although the hours can vary depending on the activity involved. Ms Armitage said that in her experience Ms Phipps can follow instructions, that she was good in relation to one-step procedures but when there were two-step procedures or more complicated tasks she needed prompting. She gave evidence and produced a file note that on 2 March 2010 she had a conversation with Ms Phipps about apprehended violence orders, and it was to the effect that Ms Phipps said that she needed such an order because she hears voices in her head. Ms Armitage asked Ms Phipps whether she understood domestic violence orders or AVOs and Ms Phipps said yes. Ms Armitage also gave evidence that there were quite a few other conversations about apprehended violence orders. In particular, Ms Armitage said that Ms Phipps has told her that if she breaks an apprehended violence order she would have to go to court and have to go to gaol. Ms Armitage said she did not explain to Ms Phipps the detail of apprehended violence orders but left that to the solicitor or the individual from the Intellectual Disabilities Rights Service who was advising Ms Phipps about this AVO. Ms Armitage said, quite frankly and candidly, that she did not have the qualifications to understand if Ms Phipps understood the matters that she was speaking about concerning apprehended violence orders, and for that matter the effect of the Guardianship Tribunal orders. She attended at court with Ms Phipps, at the Manly Local Court, and agreed with the proposition that it was a mystery to Ms Phipps as to the role that was played by the various persons there. Ms Armitage gave evidence in the respondent’s case.

16 Mr Heffernan is the appellant’s solicitor and he is a solicitor in private practice in Manly. He said that he was contacted in March 2010 by the IDRS to appear for Ms Phipps. He appeared at the Manly Local Court on a number of occasions including on 7 June 2010 when the final orders were made. He said that he attempted to explain to Ms Phipps the terms of an apprehended violence order and he did not consider that he was successful in imparting that explanation to her. He arrived at this conclusion because he said at times when he gave an explanation she would answer in the affirmative, and at a later time when the same issue arose she would say she did not know. Accordingly, he concluded that she did not understand the terms of the AVO. His evidence was that she did not appear to understand the nature of the proceedings at the Manly Local Court nor of the process of the Court. I asked him whether or not she understood or would be inhibited by the effect of any order made by a court, and he indicated that an order was in the nature of a signpost, namely, as I understood his evidence, it would wave a flag to her but she would need further prompting to obey that signpost.

17 Dr Peter Wurth in his report of 18 August 2010 says this in the final two paragraphs of his report:

“She” - referring to Ms Phipps - “has no idea of the functional running of the Court, no idea of the roles of the personnel involved and no idea of the concepts of the different pleas available to her, nor of the options available to the judge or magistrate. Her level of understanding in these areas is totally consistent with her tested level of intellectual functioning.
In summary, she has no conception of the meaning of the AVO and no capacity to meaningfully comply with this.”

18 I should say that Dr Wurth is a well credentialed psychiatrist who indicates at the beginning of his report that he first met Ms Phipps in 2002 and has been regularly seeing her since 2005. He also indicates that she has a moderate level of intellectual disability, that is an IQ in the range of thirty-five to fifty.

19 That then is the evidence as to whether or not Ms Phipps has any understanding and if so what it is, of both the Court process and an apprehended violence order. In my view the evidence is essentially consistent. With due respect to Ms Armitage, who I accept as an honest witness but she herself has indicated her lack of ability to assess whether or not Ms Phipps fully understood what was being said, the evidence appears to be totally in one direction, namely that if Ms Phipps understands what an apprehended violence order is, it is a rudimentary understanding of it and in no sense could it be possible to conclude that she would understand the detail and/or the technical meanings which are naturally included in orders of this kind.

20 Accordingly, Mr Ierace’s submission on her behalf, that it would be fundamentally unfair to impose an order which she may breach because she does not understand its terms, has in my view considerable force.

21 The Crimes (Domestic and Personal Violence) Act 2007 has in my opinion a number of indicators which support the proposition that it is the effect or the effectiveness of an order under the Act which is centrally important, and which in my view, is a significant matter a court should take into account in determining whether to impose it or not. As I have indicated to Mr Coady, who appears for the respondent, the terms of ss 7 and 8, being the meanings of the terms “intimidation and stalking” are perhaps of warm comfort to lawyers but cold comfort to lay people, let alone people with cognitive difficulties. In my view it would be extremely difficult for even lay people let alone persons with cognitive difficulties to have a full comprehension of the extended definition of those terms.

22 Section 14(1) refers to the offence of “knowingly contravening a prohibition”. Even though the “knowingly” must refer to contravention in my opinion it is implicit in that particular notion that one cannot knowingly contravene something if one does not understand what the prohibition is. Relevantly s 17 of the Act says that “a court in deciding whether or not to make an apprehended domestic violence order must consider the safety and protection of the protected person.” That of course is paramount. In my view if the making of an order was such that the protected person’s safety was in fact looked after, then even though there might be intellectual deficits of the defendant, there may well be occasions for the making of an order.

23 Section 17(2) says that “without limiting subs (1) in deciding whether or not to make an order, the Court is to consider,” and I pass over (a) to (c) and move to subs (d) “any other relevant matter.”

24 Section 30(1) of the Act requires “the authorised officer who makes a provisional order to inform the applicant of the terms of the order and the date and time when the order was made.” Once again underscoring the fact that the information is to be passed to the prospective defendant.

25 Section 35(1) sets out the prohibitions and restrictions which can be imposed by an apprehended violence order. And once again it seems to me that they are extensive and require an understanding of them for a person to properly and in an informed way make a decision not to contravene such an order. So too s 36 which includes the standard conditions for every apprehended violence order.

26 Of significance is s 76(1) which says that “a court which makes a final apprehended violence order or an interim order must explain to the defendant and the protected person the effect of the order.” Once again in my view that underscores that it is not only some empty token that the Court mouths what an order means, but the object of the exercise is that the person who must abide by the responsibilities, must be taken to know and understand what he or she is required to do.

27 Section 77(4) says that “in so far as it is reasonably practicable to do so, an explanation under the section is to be given in language that is likely to be readily understood by the person given the explanation.” Once again the object of that subsection in my view is clear, namely that the person who is bound by the order must as best a court can achieve it understand what he or she must do to comply with it.

28 In some respects there are consistencies between such orders and other orders made by a court which may result in contempt of court proceedings. The law in the latter case has always been it is incumbent upon the Court to make clear what the prohibitions are, because to allow any citizen to potentially breach a court order which is ambiguous or unclear would be unfair on that person. In my view those considerations apply with equal force to this legislation.

29 The issues then in the present appeal appear to me to be as follows, in summary: (a) whether the Presser test applies so that any hearing which takes place is fundamentally unfair and therefore the proceedings should stop at this point, or (b) whether there is any other reason why an apprehended violence order should not be made.

30 The appellant, through Mr Ierace SC, contends that the imposition of an apprehended violence order are either criminal proceedings or are in the nature of criminal proceedings, and draws in aid reference to the title of the Act, the fact that an appeal in this Court is treated as a conviction appeal, and lastly, that any breach of the order results in prima facie a criminal conviction and a custodial term.

31 In my opinion the proceedings are not criminal proceedings in strict terms. It is clear that the primary object of the Act is directed towards the protection of persons in need of protection. The standard of proof required for an order to be made is on the balance of probabilities; see s 16(1). Furthermore, in my view the sentiments of the Spigelman CJ in John Fairfax Publications Pty Limited v The Ryde Local Court (2005) 62 NSWLR at 512, at particularly 519 indicate in my view that there is a clear distinction between a clearly criminal matter and a matter such as this.

32 It is certainly true that the attributes of a hearing for an order under this Act have relevant similarities to many criminal proceedings. This includes the giving of evidence and the cross-examination in the relevant case. It is no quantum leap to suggest that to exercise the rights under this Act similar cognitive and intellectual abilities may be required to be used by a party to it. Accordingly, there is much merit in the appellant’s argument that a minimum standard of intellectual capacity as referred to in Presser should also apply. There is also much to be said for that proposition and notions of fairness and justice. However, in my view the Presser test in terms applies to committal proceedings whether conducted on indictment or summarily. Its extension to committal proceedings, which are an adjunct in my view of criminal proceedings in any event, is one which can fairly be described as intricately connected with criminal proceedings.

33 Notwithstanding these notions of fairness, in my opinion it is inappropriate for a Judge of the District Court to extend the application of the common law in the way which the appellant seeks. That in my view is the province of the legislature or the higher courts. However, of course that is not the end of the matter. Section 17, as I have said, allows a court, including this Court, to take into account any other relevant matter in determining whether or not to make an order. As I have said, the object of the Act is the protection of persons from domestic violence, intimidation and stalking. The Act proceeds on the basis that an order by the Court directed to the defendant would be understood by that defendant and acted upon, and I refer to my earlier references to the various sections of the Act. As a matter of principle it follows that if the Court concludes that the making of an order will not have the desired primary effect, then that will be a substantial reason in accordance with s 17 not to make the order. Furthermore, if the Court concludes that a person against whom the order is made cannot properly comprehend the terms of its order, so that the effect might be that he or she unwittingly breaches the order and therefore exposes him or herself to imprisonment, that in my view would also be a sufficient other reason why an order should not be made.

34 In my opinion the state of the evidence is that Ms Armitage has given evidence of her conversations with Ms Phipps, but for the reasons which I have earlier expressed, in my view that is not determinative. Dr Wurth has given his opinion and, as I say, that is an opinion of a person who is an expert in the field and who has had significant contact with the appellant. Furthermore, Mr Heffernan has also given a view of a layman, albeit an intelligent one, consistent with Dr Wurth’s understanding. Also the person from the Guardianship Board, Ms Masaka, has given a view consistent with the last two mentioned witnesses. I note the fair concessions, as I have said earlier on, by Ms Armitage that she is unable to say whether Ms Phipps truly understands the order of the Court.

35 It follows in my opinion that the weight of the evidence supplemented by the extensive medical reports, which were exhibits in the Local Court, lead me to the inevitable conclusion that such understanding as Ms Phipps has, is not such as would allow her to properly comply with the orders. I should say that at least the report which is exhibit 5 in the Court below of Drs Gail and Alexander, they both being psychiatrists at the Manly Hospital, indicate:

“Based on Kathleen’s cognitive impairment it is clear that she lacks the capacity to make decisions about her management and she has little or no understanding of the current legal processes that are currently in progress.”

36 Despite the fact that that refers to her ability to understand the legal processes, in my view it further gives weight to the conclusion which I have expressed.

37 As I say, with the greatest deference to his Honour in the Court below, in which his Honour gave a reasoned judgment, I am unable to agree with the conclusions his Honour reached. I conclude that it is not appropriate to make a domestic violence order, because the weight of the evidence convinces me that such an order and its terms would not be properly understood by Ms Phipps, and accordingly that she would place herself at risk of breaching those orders in a fashion which is unintended by her. Furthermore, I conclude that the making of any order would not serve to protect Mr Farthing but it would simply expose Ms Phipps to the criminal process in circumstances where given her cognitive capacity, it would be unfair to do so.

38 For all of those reasons therefore, I allow the appeal by the appellant against the order made by the learned magistrate and I quash the order made by his Honour.

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