Gralak, Christopher Anthony v Brown, Graeme Maxwell
[1998] TASSC 76
•29 June 1998
76/1998
PARTIES: GRALAK, Christopher Anthony
v
BROWN, Graeme Maxwell
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 19/1998
DELIVERED: 29 June 1998
HEARING DATE/S: 17 June 1998
JUDGMENT OF: Wright J
CATCHWORDS:
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Breach of Interim Restraint Order - Defective complaints - Whether any prejudice to the applicant - Whether convictions were unsafe and unsatisfactory - Draft child access agreement - Alleged breach of Family Court Order - Onus of proof - Whether an honest and reasonable mistake of fact - Whether penalties were manifestly excessive.
Kelly v O'Sullivan (1994) 5 Tas R 446, He Kaw Teh v R (1984 - 1985) 157 CLR 523, applied.
Justices Act 1959 (Tas), ss31, 106I(1), 106B(1) and 106J.
Evidence Act 1910 (Tas), s110.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: D F M Zeeman
Respondent: F C Neasey
Solicitors:
Applicant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 76/1998
Number of pages: 5
Serial No 76/1998
File No LCA 19/1998
CHRISTOPHER ANTHONY GRALAK v
GRAEME MAXWELL BROWN
REASONS FOR JUDGMENT WRIGHT J
29 June 1998
The applicant was prosecuted on seven charges of contravening an Interim Restraint Order in breach of the Justices Act 1959, s106I(1). The Interim Restraint Order in question was made on 25 September 1997 and the breaches are alleged to have occurred in the following chronology:
On 25 September 1997, after the order was made, the applicant approached his former wife and his two sons at about 5pm at Lindisfarne.
On 26 September 1997, the applicant indirectly approached his former wife by making a telephone call to her.
On 27 September 1997, the applicant indirectly approached his former wife and his two sons by making another telephone call to the household.
On 29 September 1997, the applicant indirectly approached his former wife by sending her a letter.
5 and 6On 14 October 1997, the applicant indirectly approached his sons, Victor and Rafal by sending them a letter at their respective schools (two counts).
On 27 October 1997, the applicant directly approached his son Victor at school.
The provision in the Interim Restraint Order relied upon by the prosecution in each case was the following clause:
"2 that you must not directly or indirectly approach including by telephone Boguslawa Gralak, Rafal Gralak or Victor Gralak in any way except for the purposes of contact with Rafal Gralak and Victor Gralak as permitted by an Order or Consent Order of the Family Court of Australia or by an agreement registered by or judicially approved by the Family Court of Australia or by written agreement with the parties or their solicitors, or for the purpose of attending the Family Court of Australia, Family Court Counselling or a Legal Aid Conference;"
The offence in each case was alleged to have arisen from Mr Gralak making the approach complained of "when there was no Order or Consent Order in force". In fact the evidence given at the trial clearly established that a Family Court Order was in force at all relevant times. This order was dated 18 July 1997 and pars8 and 9 thereof provided as follows:
"8That the children of the marriage, Rafal Andrezej Gralak (born on 21 November 1983) and Victor Adam Gralak (born on 15 December 1986) reside with the wife.
9That the husband have contact with the said children by agreement between the parties."
Before the Family Court Order was made on 12 June 1997, the applicant and his former wife had consulted an organisation known as Community Mediation Service Tasmania (Inc) for the purpose of negotiating access arrangements. A document was prepared by the mediators which purported to spell out the access and custody arrangements that the parties had agreed upon. During the applicant's trial for breaches of the Interim Restraint Order, it was common ground that this agreement, although not signed by either the applicant or his former wife, had formed the "basis" of their parenting arrangements for some time. It is plain from the document prepared by the mediation service, as well as the Family Court Order which was made subsequently, that considerable flexibility in the access arrangements was contemplated.
At the trial of the applicant which took place before a magistrate in the Court of Petty Sessions at Hobart on 4 March 1998, the applicant was unrepresented by counsel during the proceedings and he was convicted on all matters of complaint to which I have referred on page 1 of these Reasons, except those which I have numbered 4 and 7, which were dismissed. He was fined the sum of $500 and a Restraint Order, which effectively confirmed the provisions of the Interim Restraint Order and extended its operation for a period of two years, was made against him. On 23 March 1998, the applicant lodged a notice to review on the following grounds:
"1The learned Magistrate erred in law in misdirecting himself as to the evidence in that he satisfied himself beyond reasonable doubt that the Applicant had approached Boguslawa Gralak, Rafal Gralak and Victor Gralak when there was no Order of Consent Order in force when in fact at all material times a Consent Order of the Family Court of Australia made on the 25th day of July 1997 was in force and consequently, his findings that the counts in the Complaint were proved was unsafe and unsatisfactory.
2The learned Magistrate erred in law in making the Restraint Order on Complaint No 38323/97 pursuant to the Justices Act 1959, S106J when he could not be satisfied on the balance of probabilities on the hearing of Complaint No 13052/97 as to the matters set out in the Justices Act 1959, 106B (1).
3The fine imposed was manifestly excessive."
The notice to review came before me on Wednesday 17 June 1998. After hearing submissions by counsel, I upheld ground 2 and gave oral reasons for doing so. I reserved my decision on the other two grounds which I now turn to consider.
Relying on Kelly v O'Sullivan (1994) 5 Tas R 446, Mr Zeeman of counsel for the applicant, attacked his client's convictions on the basis that they were unsafe and unsatisfactory. He submitted that the complainant's evidence had been imprecise, it lacked particularity and was inconsistent. He pointed out that Mrs Gralak had said that for a short period of time after the parties saw the Tasmanian Mediation Service, she and her husband had a verbal agreement between them as to his contact with the children but that this had caused problems and after two or three weeks the agreement was no longer observed. A perusal of the transcript of proceedings before the learned magistrate reveals that Mrs Gralak's evidence was plainly unsatisfactory in a number of respects. Not only was it often prompted by leading questions, it was often non-responsive to the questions that had been asked. This is not to say that I should doubt her general credibility which appears to have been accepted by the learned magistrate, but, in my opinion, the evidence, as a whole, fell short of providing a firm basis upon which it could have been found proved beyond reasonable doubt that at the time of the alleged breaches there was no agreement in existence between the parties governing the matter of Mr Gralak's contact with the children. Non-observance by one party or the other does not mean that an agreement no longer exists. As already pointed out, the Family Court did not decide the question of access when it made its order. Unwisely, perhaps, this was left to the parties to agree upon. The learned magistrate seems to have been prepared to accept that the applicant believed that he was acting in accordance with some such agreement, but his Worship found that such an agreement did not in fact exist. In my opinion, the evidence upon which the learned magistrate appears to have made this assessment was altogether too insubstantial to have allowed such a finding to be made, particularly as his Worship did not make specific findings adverse to the applicant's credit. It should be noted that the Interim Restraint Order did not forbid the applicant to have any contact whatsoever with his wife and children. It forbade him to do so except so far as any Family Court Order may provide otherwise. The Family Court Order permitted contact by agreement. In its terms, the Order neither contemplates nor requires a formal written agreement. The essence of the complaints against the applicant should have been that he made contact with family members at a time and in circumstances as to which there was either no agreement in force or there was a breach of an existing agreement. As already pointed out, there was no written agreement at the relevant time. This was common ground.
There was no suggestion in the present case that the applicant had been violent to his wife or children or that he had threatened violence to any of them. Any person who initiates a process which seeks to impose criminal or quasi-criminal sanctions upon a citizen, must establish the essential ingredients of the alleged offence beyond reasonable doubt. It is not incumbent upon anyone in the applicant's position to prove the existence of an agreement, it is for the prosecution to prove that an agreement of the relevant kind does not exist. No doubt this was a difficult task in the circumstances of the present case, the difficulty being brought about by the combined effect of the Family Court Order and the Interim Restraint Order. Nonetheless, the onus of proof lay upon the prosecution. This was clearly not a situation in which the prosecution could rely upon the Evidence Act 1910, s110, in aid of its case. Indeed, Mr Neasey did not submit to the contrary.
During the hearing of the notice to review, I was not referred by either counsel to the contents of the video interview between the Constable Herbert and the applicant which took place on 4 November 1997 and which was tendered in evidence as part of the prosecution case in the court of petty sessions. Nonetheless, I have viewed that video tape and have found it very illuminating. It is perfectly clear from that interview that the applicant claimed throughout that he had an agreement with his former wife as to access to the children on the occasion of the contact between them which gave rise to the first matter of complaint on 25 September 1997. The applicant also referred to a conversation which he claimed to have had with a police officer who spoke to him following the applicant's own complaint to the police that same afternoon to the effect that his former wife was not honouring the agreement pursuant to which he was to have contact with the children at that particular time. The applicant said during the interview that the police officer went to Mrs Gralak's residence and spoke to her on his behalf and he was told by that policeman that his wife did not dispute the agreement but that she was upset following the Interim Restraint Order proceedings earlier in the day and had suggested that the applicant speak to her about access to the children the next day. On the basis of this invitation, the applicant said that he spoke to his wife and children by telephone the next day. This approach gave rise to complaints 2 and 3.
The evidence given by Mrs Gralak, herself, tended to confirm what the applicant told the police interviewer about the circumstances which gave rise to complaint number 1. She acknowledged that the day before the court hearing she had been in touch with the applicant to arrange for him to have contact with the children on 25 September. She gave no evidence about her contact with the police officer, who appears to have tried to act as an intermediary between the disputing parties, so the applicant's version of the role played by that officer has not been contradicted. On the basis of the prosecution evidence in respect of count 1, which, of course, included the applicant's interview with Constable Herbert, the conviction of the applicant was, in my opinion, plainly unsafe and unsatisfactory. In reaching this conclusion it is unnecessary to rely upon the applicant's own evidence to the court. Even if that evidence is ignored, the conviction cannot stand because of the way the case stood at the conclusion of the prosecution case. It should, however, be noted that the learned magistrate did not find the applicant to be an untruthful witness. Indeed, his Worship seems to have accepted that the applicant genuinely believed that he was acting within the scope of an agreement which he had with his former wife at the relevant time. At the very least, the applicant should have been acquitted on the basis that it had not been established by the prosecution that he was not acting pursuant to an honest and reasonably held mistake of fact (He Kaw Teh v R (1984 - 1985) 157 CLR 523). The same result should have followed in respect of counts 2 and 3.
As counts 4 and 7 were dismissed there is no need for me to consider the evidence relating to those matters. This leaves complaints 5 and 6.
At the close of the prosecution case, no evidence had been given as to the contents of the letters to the two children which lay at the heart of these complaints, although the applicant had admitted to the interviewing police officer that he had written a letter to each of his two sons. The letters were not actually tendered in evidence until the applicant was cross-examined and acknowledged them during the later stages of the trial. Until then, the contents of the letters had not been revealed to the Court. This was plainly a major defect in the procedure, but, of itself, is not a sufficient basis to say that the prosecution failed to make out a prima facie case or to vitiate the convictions on complaints 5 and 6, per se. To sustain a conviction it is necessary to find that writing letters to his two sons constituted a "direct or indirect approach" by the applicant to them which was not sanctioned by any agreement between Mr and Mrs Gralak. It seems to me that there was no evidence which could justify a finding that this method of approach by the applicant to the children was dealt with or was within the contemplation of any agreement between the applicant and his former wife. It therefore cannot be said that his approach was one which was permitted by an order of the Family Court, and, despite the applicant's insistence that he had an agreement with his wife as to his access to the children, he was unable to point to any term thereof which gave him a right to communicate in this way. Prima facie the learned magistrate was entitled to find these complaints proved.
However, before resolving the matter, it is necessary to consider an issue which arose during discussion with counsel. As I have already indicated from my opening comments, I consider that each of the complaints in this case was defective, as they alleged the non-existence of an order of the Family Court whereas they should have alleged the non-existence of an agreement pursuant to the order of the Family Court sufficient to have justified the applicant's contact with members of his family at the relevant times, but I do not think that it can be said that the complaints failed to disclose an offence by taking the form which they did. On their face the complaints alleged offences although the evidence led by the prosecution tended to prove offences of a somewhat different kind. In considering what the result should be, one must consider the provisions of the Justices Act 1959, s31.
Mr Neasey submitted that, notwithstanding deficiencies in the form of the complaints or discrepancies between the complaints and the evidence led by the prosecution, if the evidence led at the trial disclosed the commission of an offence of a similar kind to that alleged and there did not appear to be any prejudice to the person charged by reason of any defect or variance between the complaint and the evidence led in support thereof, the deficient complaint should not be dismissed but should be determined on its merits according to the evidence. I think he is correct. There is nothing to show that the applicant was prejudiced in any way by the discrepancies between the allegations in the complaint and the evidence led at the trial, notwithstanding that the complaints were never amended during the course of the proceedings. It follows, therefore, that notwithstanding the many deficiencies which attended this prosecution, the applicant's convictions upon complaints 5 and 6 cannot be impugned.
It is therefore necessary for me to consider ground 3 of the notice to review relating to sentence. Having regard to the fate of counts 1, 2 and 3, and the general circumstances in which the letters forming the basis of complaints 4 and 5 were written and delivered by the applicant to his children, and, in particular, having regard to the messages of affection and concern which the applicant expressed in those letters, I am in little doubt that a fine of $500 and the making of a two year Restraint Order were manifestly excessive penalties. I have already held the Restraint Order to have been invalidly made when ruling upon ground 2 of the notice to review on 17 June. Taking all relevant circumstances into account, I think that the appropriate penalty in relation to complaints 5 and 6 is to simply record a conviction against the applicant and remit the costs. I regard each breach as very minor indeed.
Accordingly the motion to review will be allowed in respect of complaints 1, 2 and 3 and those complaints will be dismissed. The motion to review the convictions on complaints 5 and 6 will be dismissed, but the penalties imposed in respect thereof will be quashed as being manifestly excessive. In lieu thereof, convictions will be recorded and costs in the lower court will be remitted. The applicant will, however, be ordered to pay a victim of crime compensation levy of $40 to the Clerk of Petty Sessions at Hobart within thirty days.
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