Goodacre v Lumbers
[2019] WASC 184
•28 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GOODACRE -v- LUMBERS [2019] WASC 184
CORAM: DERRICK J
HEARD: 27 MAY 2019
DELIVERED : 27 MAY 2019
PUBLISHED : 28 MAY 2019
FILE NO/S: SJA 1020 of 2019
BETWEEN: TERRY WILLIAM GOODACRE
Appellant
AND
GRIFFIN LUMBERS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G RANDAZZO
File Number : PE 66946 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on plea of guilty of an offence of breaching the term of a Family Violence Restraining Order contrary to s 61(1) of the Restraining Orders Act 1997 (WA) - Whether upon the admitted facts the appellant could in law have been guilty of the offence - Principles of construction of terms of violence restraining orders
Legislation:
Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Result:
Application for extension of time granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr H W Glenister |
| Respondent | : | Mr J F Bennett |
Solicitors:
| Appellant | : | Cathal Smith Legal Pty Ltd |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
De Bono v Southam [2018] WASCA 218
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Horvath v Sharples [2018] WASC 315
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Perry v Carrier [2013] WASC 299
Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454
Samuels v The State of Western Australia [2005] WASCA 193
Topuz v The State of Western Australia [2017] WASCA 186
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
De Bono v Southam [2018] WASCA 218
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Samuels v The State of Western Australia [2005] WASCA 193
Topuz v The State of Western Australia [2017] WASCA 186
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 29 December 2018 the appellant was convicted in the Magistrates Court on his plea of guilty of one offence of breaching a Family Violence Restraining Order number 2018 02650 (the FVRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the Act).[1] On the same date the magistrate fined the appellant $200 for the offence and ordered him to pay costs of $107.50.[2]
[1] ts 2, 29 December 2018.
[2] ts 4, 29 December 2018.
The appellant applies for an extension of time within which to appeal and for leave to appeal against his conviction.[3]
[3] The applications are made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 14 March 2019 Strk AJ ordered that the appellant's application for an extension of time within which to appeal and his application for leave to appeal be heard together with the appeal.
The appellant's single ground of appeal, the particulars of which are referred to below, is that he could not in law, on the basis of the admitted facts, have been guilty of the offence.
The respondent concedes the appellant's ground of appeal although not on the particularised basis put forward by the appellant.
For the reasons that follow it is my opinion that the application for an extension of time within which to appeal should be granted, that the application for leave to appeal should be allowed and that the appeal should be allowed.
The application for an extension of time
The last day for the appellant to appeal against his conviction was 26 January 2019.[4] The appellant filed his appeal notice on 13 February 2019, that is, 18 days late.
[4] CAA s 10(3) and 10(4).
The appellant's solicitor has affirmed an affidavit dated 13 February 2019 in support of the appellant's application for an extension of time. In his affidavit the appellant's solicitor affirms that due to the Christmas period, the annual leave that he has recently taken and other work commitments he was unable to lodge the appeal notice within time.
The appellant's solicitor's explanation for the late filing of the appeal notice is not particularly satisfactory. Nonetheless, it would appear from the contents of his affidavit that the delay in the filing of the notice is not due to any fault on the part of the appellant.
The respondent consents to the application for an extension of time.
Ultimately, the question is whether it is in the interests of justice to grant an extension of time. There may be cases where an extension of time is not granted even where there is merit in a ground of appeal.[5]
[5] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
The delay in filing the appeal notice while not insignificant is not particularly lengthy. Further, I do not consider that the appellant should be penalised due to the conduct of his solicitor. In addition, and for the reasons I expand upon below, the ground of appeal has merit. In these circumstances I am satisfied that it is in the interests of justice to grant the requested extension. I therefore grant the extension of time within which to appeal.
Leave to appeal
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[6] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[7] If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.[8]
[6] CAA, s 9(3).
[7] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[8] CAA, s 9(3).
Ground of appeal
The appellant's single ground of appeal against his conviction is expressed as follows:
The appellant could not in law, on the basis of the admitted facts, have been guilty of the offence.
Particulars
a.The clause of the Family Violence Restraining Order that [the appellant] was said to have breached was: 'harass the Person Protected by any electronic means, including by using the internet and any social network application (such as "facebook") to depict or refer in any manner to the person protected'; and
b.[The appellant] was dealt with in the Magistrates Court on the basis that he referred to the person protected and not on the basis he harassed her (ts 3 ‑ 4).
The appellant therefore alleges that a miscarriage of justice occurred by reason of him being convicted of an offence which he could not in law have been guilty of.[9]
[9] CAA, s 8(1)(b).
The relevant term of the FVRO and the terms of the charge
The FVRO was made final on 3 October 2018.[10] The relevant term of the FVRO specified in Part A of the order is as follows:
EXCEPT AS SET OUT IN PART B YOU MUST NOT:
harass the Person Protected by any electronic means, including by using the internet and any social network application (such as 'facebook') to depict or refer in any manner to the person protected.
[10] The FVRO was made on an interim basis on 13 August 2018 pursuant to s 29(1)(a) of the Act and became a final order pursuant to s 32 of the Act.
Part B of the FVRO specifies certain situations in which despite the terms specified in Part A the person bound by the order will not be in breach of the order. Part B of the FVRO is of no relevance in the present context.
The charge to which the appellant pleaded guilty to, and was convicted of, alleged that on 23 November 2018 at East Perth the appellant
being bound by Family Violence Restraining Order No 2018 02650, breached the order by sending text messages to multiple people and referring to the protecting (sic) person, contravening a clause not to 'harass the protected person by any electronic means … to depict or refer in any manner to the person protected'.
Thus the charge as pleaded did not specify in its entirety the term of the FVRO that the appellant was alleged to have breached. The charge omitted the words 'including by using the internet and any social network application (such as "facebook")'.
The hearing before the magistrate
At the commencement of the hearing before the magistrate his Honour was informed by the appellant's counsel that there would be a plea of guilty to the charge.[11] The magistrate then read the charge to the appellant.[12] The appellant pleaded guilty.[13] The magistrate entered a judgment of conviction.[14]
[11] ts 2, 29 December 2018.
[12] ts 2, 29 December 2018.
[13] ts 2, 29 December 2018.
[14] ts 2, 29 December 2018.
The facts of the offence the subject of the charge were then read to the magistrate by the prosecutor. The facts as read were as follows:[15]
Record should be before your Honour. It's a first breach. Subject to a violence family restraining order. 2.55 pm, 23 October, the [appellant] sent two text messages from his phone to seven people on his contact list, including three of his adult children. The message spanned over several paragraphs and referred to the protected person several times. I don't have information on what those text messages refer to, your Honour. He was arrested on 28 December and admitted to the offence.
[15] ts 2, 29 December 2018.
After the facts had been read the appellant's counsel said the following to the magistrate:[16]
Yes your Honour. That's accepted. Just to make clear the basis of the plea of guilty, it's not accepted that simply referring to her in a text message would be a breach of the terms of the restraining order, but it does say in there that there's a - that he's not to refer to her on any social media platform. Social media network, I think it says.
[16] ts 2 ‑ 3, 29 December 2018.
The magistrate responded to the appellant's counsel's statement by pointing to the wording of the charge, by expressing uncertainty as to whether the charge had been 'fully completed' given the gap between the words 'means' and 'to', and by asking the appellant's counsel what she said the position was.[17]
[17] ts 3, 29 December 2018.
The appellant's counsel purported to answer the magistrate's question by stating that the charge was poorly worded and by pointing out that the facts of the offence as read by the prosecutor did not assert that the appellant had harassed the person protected in any way.[18] She stated that what the appellant had done was to refer to the person protected using a social media network.[19] She stated that the appellant was speaking about the person protected 'to clear his name', and that he had referred to the person protected 'but not in a demeaning way'.[20]
[18] ts 3, 29 December 2018.
[19] ts 3, 29 December 2018.
[20] ts 3, 29 December 2018.
At this point in the hearing the magistrate indicated to the appellant's counsel that he would deal with the matter on 'that basis' unless the prosecution was seeking an adjournment.[21] The magistrate then confirmed that the prosecution was not seeking an adjournment.[22] The appellant's counsel then added to what she had already said by stating that the appellant had 'simply … sent text messages to a group of people, his family, to try and clear up some allegations that have been made around the separation of him and his wife'.[23] She also informed the magistrate that the appellant was very remorseful and had spent a night in custody.[24]
[21] ts 3, 29 December 2018.
[22] ts 3, 29 December 2018.
[23] ts 3, 29 December 2018.
[24] ts 3, 29 December 2018.
Having heard from the appellant's counsel the magistrate proceeded to deal with the appellant for the offence. In doing so he said the following to the appellant:[25]
I'm dealing with you on the basis that what you did was making reference to the protected person. There's nothing to suggest that there was any threat or anything of that nature.
…
I'm making it clear to you I'm dealing with you on the basis that it is a simple reference to her …
[25] ts 3 ‑ 4, 29 December 2018.
The magistrate then proceeded to refer to the appellant's plea of guilty, the fact that he had spent one night in custody, the fact that he had made admissions when speaking to the police, and his limited record before imposing on the appellant the above referred to fine for the offence.[26]
[26] ts 4, 29 December 2018.
His Honour concluded his sentencing remarks by telling the appellant that he needed to be 'very, very careful to stick to the very strict letter of the restraining order'.[27]
[27] ts 4, 29 December 2018.
It is apparent from my above recitation of the proceedings before the magistrate that despite the appellant's counsel's quoted initial statement to the magistrate following the reading of the facts by the prosecutor, the appellant was dealt with on the factual basis that a simple reference to the protected person by text message constituted a breach of the relevant term of the FVRO.
Appeal against conviction after guilty plea - applicable legal principles
Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been entered.
In Lawson v The State of Western Australia [No 2][28] the well‑established principles relating to an appeal against conviction entered after a plea of guilty were stated by the Court of Appeal in the following terms:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence [Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141].
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner, a person may plead guilty for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after a plea of not guilty [Meissner (157)]. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred [Meissner (157)].
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like [Vella v The State of Western Australia [2006] WASCA 129 [26]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [154]]. [29]
[28] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [19].
[29] The statement of the applicable principles in Lawson v The State of Western Australia was recently reaffirmed in De Bono v Southam [2018] WASCA 218 [18]. See also Topuz v The State of Western Australia [2017] WASCA 186.
As is apparent from the terms of the ground of appeal, the appellant is relying on the second of the well‑recognised circumstances identified in Lawson in which courts are prepared to set aside pleas of guilty.
The submissions of the parties
The appellant's submission in support of the ground of appeal is, in essence, that when the relevant term of the FVRO is interpreted in light of the relevant provisions of the Act, it is clear that in order for him to have acted in breach of the term he must have engaged in conduct that constituted harassment of the person protected, and that as he did not engage in such conduct he did not breach the term and therefore could not in law have been guilty of the offence of which he was convicted.
The respondent's submissions and reasons for conceding the ground of appeal may be summarised as follows:
1.On an ordinary reading of the relevant term of the FVRO the behaviour prohibited is harassing the person protected by electronic means;
2.The second part of the term commencing with the words 'including by' clarifies the initial part of the term by identifying a particular way in which harassment may occur, namely by depicting or referring in any manner to the person protected by using the internet and any social network application. Thus the ordinary and natural meaning of the word 'harass' is expanded by the second part of the term;[30]
[30] The ordinary and natural meaning of the word 'harass' as used in the context of the relevant term of the VRO is 'to disturb persistently; torment'; to 'trouble and annoy continually or repeatedly': Macquarie Dictionary (6th ed, 2013) 678; Australian Concise Oxford English Dictionary (4th ed, 2004) 637.
3.It follows that a mere reference to the person protected using the internet and any social network application amounts to a breach of the term;
4.The words 'internet' and the phrase 'social network application' are not defined by the FVRO and should therefore be given their ordinary natural meaning;
5.The ordinary and natural meaning of the word 'internet' is 'the communication system created by the interconnecting networks of computers around the world';[31]
6.The ordinary and natural meaning of the words 'social network' with reference to the internet is 'a supportive group … with similar interests, etc … whose point of contact is an online website, allowing for the sharing of conversations, information, film and television viewing, etc';[32]
7.Taking these definitions together, and keeping in mind that a breach of the term requires use of 'the internet and any social network application', a breach of the term by the mere reference to the person protected requires use of a website on the communication system created by the interconnecting networks of computers around the world (whether through a computer browser, or via an application on a mobile phone);
8.On the admitted facts of the offence, the appellant's references to the person protected were made in text messages sent from his mobile phone;
9.The ordinary and natural meaning of the term 'text message' is 'a message sent by mobile phone using SMS' (that is, short message service);[33]
10.While it is possible for mobile phones to send text messages over the internet, it is accepted that a reference to a message being sent by phone ordinarily suggests that the message has been sent via SMS;
11.Taking the above definitions into account, although the text messages sent by the appellant using his mobile phone were sent by electronic means, the appellant did not send the text messages by 'using the internet and any social network application'. That is, the appellant did not make use of a website on the communication system created by the interconnecting networks of computers around the world (whether through a computer browser, or via an application on a mobile phone);
12.Given that the text messages were not sent by 'using the internet and any social network application' the mere references made in the messages to the person protected did not amount to harassment of the person protected within the expanded meaning given to the word 'harass' by the second part of the term. It follows that the appellant could not, on the basis of the admitted facts, in law have been guilty of the offence of which he was convicted; and
13.Accordingly, a miscarriage of justice has occurred and there is no basis for the operation of the proviso.[34]
[31] Macquarie Dictionary (6th ed, 2013) 775. The respondent also refers in this context to the substantially similar definition of the word 'internet' contained in the Oxford English Dictionary.
[32] Macquarie Dictionary (6th ed, 2013) 1390. The respondent also refers in this context to the substantially similar definition of the term 'social network' contained in the Oxford English Dictionary.
[33] Macquarie Dictionary (6th ed, 2013) 1520. The respondent also refers in this context to the definition of 'text message' contained in the Oxford English Dictionary which is, 'a written message which is transmitted electronically, esp. a short, keyed message sent from one mobile phone to another, or via the Internet'.
[34] CAA, s 14(2).
The respondent further contends that his construction of the relevant term of the FVRO is consistent with the applicable provisions of the Act.
Analysis - has there been a miscarriage of justice?
The statutory framework
The relevant term of the FVRO, as is acknowledged by both parties, must be interpreted in light of the relevant provisions of the Act. It is therefore convenient to commence my consideration of the parties' competing submissions by referring to the relevant provisions of the Act.
Family violence restraining orders are dealt with in pt 1B of the Act. Part 1B is comprised of s 10A to s 10H.
Section 10A sets out the objects of pt 1B. The section specifies the objects to include:
1.Maximising the safety of persons who have experienced, or are at risk of, family violence; and
2.Preventing or reducing to the greatest extent possible the incidence and consequences of family violence.
The term 'family violence' is defined in s 5A(1) of the Act. Section 5A(1) provides:
A reference in this Act to family violence is a reference to ‑
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
Section 5A(2) provides, so far as is presently relevant:
Examples of behaviour that may constitute family violence include (but are not limited to) the following -
…
(c)stalking or cyber stalking the family member;
…
The term 'cyber stalking' is defined in s 3 of the Act in the following terms:
… in relation to a person, means stalking, monitoring the movement or communications of, or repeatedly communicating with or harassing, the person using electronic means. (emphasis added)
Section 10B(1) specifies the matters that a court must have regard to in performing a function under the Act relating to family violence restraining orders. Two of the matters that are specified are as follows:
1.The need to ensure that persons at risk of family violence are protected from that violence; and
2.The need to prevent behaviour that could reasonably be expected to cause a person to apprehend that they will have family violence committed against them.
Section 10D provides:
(1)A court may make an FVRO if it is satisfied that -
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
Section 10F(1) specifies the matters that a court is to have regard to when considering whether to make a family violence restraining order and the terms of any such order. The first two matters specified are:
1.The need to ensure that the person seeking to be protected is protected from family violence; and
2.The need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
Finally, s 10G relevantly provides as follows:
(1)In making an FVRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent -
(a)committing family violence against the person seeking to be protected; or
(b)if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
(c)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
(2)Without limiting the restraints that may be imposed under subsection (1), a court may restrain the respondent from doing all or any of the following -
…
(d)stalking or cyber stalking the person seeking to be protected;
…
As is apparent from the above referred to sections of the Act, pt 1B is concerned with the prevention of family violence, the protection of persons from behaviours that constitute 'family violence' and the prevention of behaviours that could reasonably cause in a person an apprehension of 'family violence'.
It is also apparent from the above referred to definition of 'cyber stalking' contained in s 3 of the Act, that the relevant term of the FVRO was imposed pursuant to s 10G(2)(d) of the Act.
Principles relating to the construction of restraining orders
In Horvath v Sharples[35] Hall J said the following in relation to the principles relating to the construction of restraining orders:[36]
It does not appear that principles relating to the construction of restraining orders have been considered by the Court of Appeal. I agree with the approach taken by Beech J in Sturt v Ball [[2013] WASC 343 [18]]:
'Breach of a restraining order is an offence rendering a person liable to up to 2 years imprisonment under s 61(1). Consequently, a restraining order, like an injunction, must clearly identify the conduct that is restrained. In that framework, a court will be, to say the least, cautious to imply additional restraints into the terms of a restraint order [18].'
Given that a breach of the order may give rise to imprisonment, and in order to promote certainty as to the prohibited conduct, courts should interpret restraining orders according to their plain and ordinary meaning and should be slow to imply additional words or restraints into the orders.
[35] Horvath v Sharples [2018] WASC 315 [18] ‑ [19].
[36] Horvath v Sharples [18] ‑ [19].
I respectfully agree with the principles of construction referred to, and stated by, Hall J in Horvath v Sharples.
Interpretation of the relevant term
Against the background of the above referred to statutory provisions, and with the applicable relevant principles of construction in mind, I turn to the interpretation of the term of the FVRO that the appellant was convicted of breaching.
As I have already pointed out, the term commences with the words, 'Except as set out in Part B you must not harass the Person Protected by any electronic means …' (emphasis added). Therefore, and as the respondent acknowledges, it is the harassment of the person protected by any electronic means that the term prohibits the person bound by the order from engaging in. This prohibition is, of course, consistent with the objects of pt 1B of the Act as specified in s 10A, the above referred to matters to which the court is to have regard to in performing a function under the Act in relation to family violence restraining orders as specified in s 10B(1), the above referred to matters that the court is to have regard to in considering whether to make a family violence restraining order and the terms of the order as specified in s 10F(1), and one of the particular forms of conduct that the Act specifies as constituting 'family violence', namely 'cyber stalking' or more specifically 'repeatedly … harassing the [person protected] using electronic means'. When the second part of the term commencing with the words 'including by' is read in this context, that is, in the context of what the term as a whole is directed at prohibiting, it is clear, in my view, that it should not be read as providing some sort of extended definition of the ordinary and natural meaning of the word 'harass', but rather as making clear that the harassment of the person protected by any electronic means that the term prohibits includes harassment constituted by using the internet and any social network application to depict or refer in any manner to the person protected. Whether or not the use of the internet and any social network application to depict or refer in any manner to the person protected constitutes harassment of the person protected will depend on the circumstances.
In my opinion, to interpret the second part of the term in the manner contended for by the respondent ignores the clear purpose behind the term, namely to prevent the harassment of the person protected by electronic means, and also the context in which the words comprising the second part of the term appear. The respondent's contended for interpretation of the term in effect treats the second part of the term as creating a stand‑alone prohibition notwithstanding that the relevant words appear as part of a term prohibiting harassment of the person protected by electronic means. If the intention was to prohibit the person bound by the order from using the internet and any social network application to depict or refer in any manner to the person protected regardless of whether or not the depiction or reference constituted harassment of the person protected then, assuming for present purposes without deciding that the imposition of such a term could properly be imposed under s 10G(1)(c) of the Act on the basis that it was a term that was directed at preventing behaviour that could reasonably cause the person protected to apprehend that they will have family violence committed against them, it could reasonably be expected that the second part of the term would have appeared in Part A of the FVRO as a stand‑alone term. That is, the FVRO would have provided, 'Except as set out in Part B you must not use the internet and any social network application (such as "facebook") to depict or refer in any manner to the person protected'.
Finally, to interpret the term in the way contended for by the respondent leads to what is in my view the somewhat absurd result, which is of course the result that the respondent contends is arrived at in the present case, that a person acts in breach of the relevant term if they merely refer to the person protected by using the internet and a social network application (for example, Facebook messenger) but not if they merely refer to the person protected by SMS. There is no apparent logical reason for this to be the case.
For the reasons I have given, I do not accept the respondent's submission that on an ordinary reading of the term of the FVRO that the appellant was convicted of breaching a mere reference to the person protected by the use of the internet and any social network application constitutes harassment for the purposes of the term. To the contrary, in my opinion the term of the FVRO did not prohibit the appellant from using the internet and any social network application to depict or refer in any manner to the person protected in circumstances where the depiction or reference did not constitute harassment of the person protected.
It follows from my above expressed conclusion that the appellant could not in law have been guilty of the offence of which he was convicted unless, by any electronic means, including by use of the internet and any social network application, he harassed the person protected. There is no dispute that by using his mobile phone to send the text messages the appellant made use of electronic means to refer to the person protected. However, and as is apparent from my above summary of the proceedings that took place before the magistrate, his Honour dealt with the appellant on the factual basis that all that the appellant did was to refer to the person protected without in any way threatening or otherwise harassing her. In these circumstances I am satisfied that upon the admitted facts the appellant could not, in law, have been guilty of the offence of which he was convicted by the magistrate and that consequently there has been a miscarriage of justice. I therefore uphold the ground of appeal on this basis.
If, however, contrary to my above expressed conclusion the respondent's contended for interpretation of the relevant term of the FVRO is correct, with the result that the term does prohibit the use of the internet and any social network application to depict or refer in any manner to the person protected regardless of whether or not the depiction or reference constitutes harassment of the person protected, then I am, subject to one qualification, persuaded for the reasons put forward by the respondent to which I have referred that the appellant did not act in breach of the term. That is, I am satisfied that the appellant did not, by using his mobile phone to send the text messages by SMS, 'use the internet and any social network application … to depict or refer … to the person protected'.
The one qualification to which I have referred relates to the respondent's contention that the word 'and' where it appears between the words 'internet' and 'any social network application' in the second part of the term should be read conjunctively, that is, as stipulating that in order for the person bound by the order to be in contravention of the term they must make use of both the internet and any social network application to depict or refer to the person protected. Although the context in which the word 'and' appears will commonly dictate that it should be read conjunctively, there will be cases in which the context dictates that the word should be read disjunctively.[37] This, in my view, is one of those cases. Given that a person can depict or refer to a person by the use of the internet without making use of a social network application, for example by email, it does not make sense or serve any purpose to read the reference in the term to 'the internet and any social network application' (emphasis added) as requiring that the person bound by the order must use both the internet and a social network application at the same time to depict or refer to the person protected in order to be in contravention of the term. Indeed, given that a social network application is by definition an online website, that is, something that can only be accessed through the internet and therefore involves the use of the internet, if the word 'and' is read conjunctively the consequence is that the reference to the internet is rendered otiose. Rather, the more sensible interpretation is that the word 'and' as used in the term should be read disjunctively so that if the respondent's contention as to the overall construction of the term is, contrary to the view I have expressed, correct the prohibition is on the use of the internet, whether through a social network application or in some other way, to refer in any manner to the person protected.
[37] Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454 [20] ‑ [54], [98] ‑ [101], [112] ‑ [115]; Pearce and Geddes, Statutory Interpretation in Australia, (8th ed, 2014) [2.30].
My above expressed view as to the appropriate interpretation of the word 'and' as used in the term does not alter the fact that the appellant did not, by using his phone to send the text messages, 'use the internet and any social network application to depict or refer in any manner to the person protected'. By sending the text messages the appellant did not make use of a social network application (that is, an online website allowing for the sharing of conversations and information) or make use of the internet (that is, the communication system created by the interconnecting networks of computers around the world) in some other way.
In summary, if contrary to the conclusion I have arrived at the respondent's contended for interpretation of the term is correct, I am satisfied that the appellant could not on the admitted facts in law have been guilty of the offence because he did not, within the meaning of the term, 'use the internet and any social network application to depict or refer in any manner to the person protected', and that consequently a miscarriage of justice has occurred.
Proviso
If a miscarriage of justice has occurred, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred.[38] However, given my conclusion that on the admitted facts the appellant could not in law be guilty of the offence of which he was convicted there is clearly room for the application of the proviso.[39]
[38] CAA, s 14(2).
[39] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] ‑ [45]; Perry v Carrier [2013] WASC 299 [16] ‑ [20].
Orders
For the reasons I have stated, and having heard from the parties on the issue of costs, I will make orders in the following terms:
1.The application for an extension of time within which to appeal is allowed;
2.The application for leave to appeal is allowed;
3.The appeal is allowed;
4.The appellant's conviction for the offence the subject of charge PE66946/2018 (the charge) is set aside and substituted with a judgment of acquittal;
5.The appellant is discharged from the charge;
6.The costs order made by the magistrate is set aside; and
7.Pursuant to s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973 the appellant is entitled to costs fixed in the sum of $3,500.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick28 MAY 2019
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