Goodacre v Lumbers - [2019] WASC 184

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…

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 Goodacre v Lumbers

Details

AGLC: Goodacre v Lumbers [2019] WASC 184
Case: [2019] WASC 184
Decision Date: 28 MAY 2019

CaseChat Overview and Summary

The appellant, Goodacre, appealed against his conviction and sentence for breaching a Family Violence Restraining Order under section 61(1) of the Restraining Orders Act 1997 (WA). The order was breached when Goodacre contacted the protected person, who was his former partner, in contravention of its terms. The case was heard in the Supreme Court of Western Australia. Goodacre pleaded guilty to the offence before the Magistrates Court, which sentenced him to a two-month imprisonment term, wholly suspended, and a one-year good behaviour bond.

The primary legal issue before the court was whether, given the admitted facts, Goodacre could be considered guilty of the offence under the statute. The court needed to examine the principles of interpreting the terms of a Family Violence Restraining Order. The appellant argued that the terms of the order were ambiguous, which led to his actions not being a clear breach. The court had to determine if the terms of the order were indeed clear and unambiguous and if the appellant's actions unequivocally contravened them.

The court found that the terms of the Family Violence Restraining Order were clear and unambiguous, and Goodacre's actions unequivocally contravened them. The order specifically prohibited Goodacre from contacting the protected person directly or indirectly. The court held that there was no ambiguity in the order's terms, and the appellant's contact with the protected person was a clear breach. Consequently, the appeal against the conviction was dismissed, and the sentence was confirmed. The court held that the appellant's actions constituted a breach of the order, and he was rightly convicted and sentenced.

Orders