Hiscox v Guildersleeve - [2011] WASC 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HISCOX -v- GUILDERSLEEVE [2011] WASC 229

CORAM: MURRAY J

HEARD: 25 AUGUST 2011

DELIVERED : 31 AUGUST 2011

FILE NO/S: SJA 1029 of 2011

BETWEEN: ANTHONY ROSS HISCOX
Appellant
AND
TROY DOUGLAS GUILDERSLEEVE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
Citation  :POLICE -v- HISCOX
File No  :BU 1290 of 2010

Catchwords:

Criminal law and procedure - Charge of breach of restraining order - Court found accused had no case to answer - Court acceded to application by prosecutor to reopen case - Admission by accused of fact in issue - Whether magistrate made error of law - Whether procedure involved a miscarriage of justice

Legislation:

Nil

Result:

Appeal dismissed with costs

Category: B

Representation:

Counsel:

Appellant: Mr I MacFarlane
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Ian MacFarlane
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Burgoyne v Earl [1999] WASCA 154
Henning v Lynch [1974] 2 NSWLR 254
May v O'Sullivan (1955) 92 CLR 654
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Prashar v The Queen (1989) 1 WAR 190
R v Birks (1990) 19 NSWLR 677
The State of Western Australia v Wood [2008] WASCA 81
Williams v Berini [1960] WAR 21

MURRAY J:

The charge and the appeal

The respondent police officer charged the appellant with breaching a violence restraining order at Boyanup on 9 February 2010, contrary to s 61(1) of the Restraining Orders Act 1997 (WA), an offence for which the penalty is a fine of $6,000 or imprisonment for 2 years, or both. In the result, after a trial in the Bunbury Magistrates Court before Magistrate Pontifex, the appellant was convicted and fined $2,000.
He appeals against the conviction, relying on two grounds as follows:
1.The learned Magistrate erred in law by not entering a directed acquittal after finding that the Appellant had no case to answer.
Particulars
At the close of the Prosecution case Counsel for the Appellant made a submission to the Court that there was no case to answer: this application was successful. Notwithstanding that the Learned Magistrate held that there was no case to answer, she then considered an application by the prosecutor that the prosecution case should be allowed to be reopened: the Learned Magistrate ruled that the prosecution could reopen its case. This, it is submitted, is an error in law, because once the ruling was made that there was no case to answer the Learned Magistrate was obliged by law to dismiss the charge and acquit the Appellant.
2.The learned Magistrate erred in law by allowing the Prosecution to split its case.
Particulars
At the close of the prosecution case Counsel for the Appellant made a submission to the Court that there was no case to answer. During the no case to answer submission, the prosecutor made submissions that the prosecution should be allowed to reopen its case, which the Learned Magistrate ruled it could do. It is submitted that by allowing the prosecution to reopen its case the Learned Magistrate fell into error in law in that she allowed the prosecution to split its case.
The appeal is brought under the Criminal Appeals Act2004 (WA), s 8(1). The appellant's contention is that in two related respects her Honour the magistrate made an error of law in connection with her ruling that the appellant had no case to answer, firstly by offering to allow the prosecutor's application for an adjournment so that consideration might be given to the need to call additional evidence, and secondly, by effectively allowing the prosecution to reopen its case to cure an evidentiary defect, thereby, so it is contended, allowing the prosecution to split its case.
Leave to appeal upon the grounds set out above has been granted. The question for me, therefore, is whether the appeal should be allowed on the ground of the errors of law identified by the appellant, or, on the more particular ground which, in my opinion, fairly emerges from ground 1 as formulated, that if it was open as a matter of law for her Honour to accede to the prosecutor's application for an adjournment to enable him to reopen his case, then the exercise of the court's discretion in that way constituted a miscarriage of justice in terms of the Criminal Appeals Act, s8(1)(b), which would not be capable of being cured on the ground that there has been no substantial miscarriage of justice: Criminal Appeals Act, s 14(2).

The trial and its result

An offence against s 61(1) of the Restraining Orders Act is committed by a person, 'who is bound by a violence restraining order and who breaches that order'. The elements of the offence are therefore blindingly simple. At the relevant time, in this case on 9 February 2010, the alleged date of the offence, there needs to have been a violence restraining order in force, binding the accused because it has been served upon him: Restraining Orders Act, s 16(1).
The question then will be whether the accused has breached the order by his conduct, having regard to its terms. There were here no particulars given by the prosecutor, but, in opening the prosecution case, the prosecuting sergeant referred to the terms of the order and the facts to be proved to establish the breach.
The violence restraining order (exhibit 2) describes itself on the face of the document as a final order made against the appellant, whose home address is given as East Fremantle, in favour of a young woman who, as the evidence revealed, was the estranged former partner of the appellant. The order is dated 22 July 2008. A certificate of service appended to the order was proof that it was served on the appellant by post on 24 July 2008.
So far as material, the terms of the order were that the person bound by the order, the appellant, must not:
•cause or attempt to cause damage to the property of the protected person, or in possession of the person protected,
•behave in an intimidatory, offensive or emotionally abusive manner towards the person protected,
It was provided by the order that an exception to its operation was the need to comply with a family order, 'that seeks to regulate the time spent by either party with their child or children'. There is a child of the relationship who, on the date when the offence was alleged to have been committed, was aged 4 years, and there was tendered in evidence before the magistrate an order of the Family Court made on 16 February 2009 which, as I read it, apart from various special occasions, ordinarily allowed the child to be with the appellant for a two‑day period each alternate week.
According to the way in which the prosecutor opened the case before the magistrate, the incidents relied upon to establish the alleged breach of the restraining order happened on an occasion when the child was to be delivered by its mother, the protected person, into the possession of its father, the appellant, as authorised by the order of the Family Court.
The address in Boyanup where the offence was allegedly committed was a property owned by the mother of the appellant's former partner. The young woman and the child were living there at the time. The appellant was said, when he arrived, to have driven his vehicle across the front lawn. Having parked it, he came to the front door and began banging loudly on the door. His former partner opened the door. She said that she had just sent the child to the toilet (presumably the car journey was to be from Boyanup to Fremantle). The woman shut the door.
According to the prosecutor's opening, about 30 seconds later the appellant again began thumping loudly on the door. It took about two minutes before the mother and child came to the door. As she opened it, the appellant was said to have come into the house, pushing the door into his former partner and saying loudly to her, 'You're a bitch. You're a pig of a thing.'
He took the child from her, got into the car and accelerated heavily to drive away. His wheels spun, damaging the lawn, and he drove over a garden bed, leaving tyre marks.
The prosecutor suggested that the damage to the garden was damage to the property in the possession of the person protected, within the terms of the violence restraining order. But more importantly, the contention was that by banging loudly on the door when there was no need to do so, by entering the house with some violence in the way described, and by saying the words alleged, the appellant breached the order by behaving in an intimidatory, offensive and emotionally abusive manner towards his former partner, the protected person.
Ultimately, in reasons for decision delivered on 28 February 2011, her Honour the magistrate found the charge to be proved, and recorded a judgment of conviction. It is clear that the prosecution case depended, in relation to the factual question of whether or not there had been a breach of the order, upon the evidence of the appellant's former partner and her mother, against which was placed the evidence of the appellant, who gave a version of the events which, it is sufficient to say, if accepted, would have substantially contradicted the prosecution evidence and would have made it impossible to find the prosecution case proved beyond reasonable doubt.
The conflict of evidence was resolved in favour of the acceptance of the evidence of the young woman and her mother, and the rejection of the evidence of the appellant as a reliable account of what occurred. To put it shortly, in the result, the facts as found by her Honour were essentially those opened by the prosecutor.
Her Honour concluded that the appellant's behaviour on the occasion in question was intimidating and did, in fact, cause the child's mother to become apprehensive and distressed because she was concerned about the safety of the little boy in the company of his father, the appellant, who had been acting in what her Honour described as a somewhat irrational and aggressive way when he took possession of the child. There is, of course, having regard to the grounds of appeal, now no complaint about the magistrate's reasoning, her findings of fact or her conclusion that the conduct of the appellant constituted a breach of the order.

Was the appellant bound by a restraining order then in force?

The question with which the appeal is concerned is the issue at trial, whether, on 9 February 2010, the appellant was bound by the restraining order made on 22 July 2008.
Section 16(5) of the Restraining Orders Act provides:
Subject to Part 5, a final violence restraining order remains in force for -
(a)in the case of an order made at a final order hearing -
(i)the period specified in the order; or
(ii)if no period is specified, 2 years,
from the date on which the final order came into force;
(b)in the case of a telephone order which became a final order under section 32 - 3 months from when the telephone order came into force or such shorter period as is specified in that order; and
(c)in the case of any other interim order which becomes a final order under section 32 -
(i)the period specified in it; or
(ii)if no period is specified, 2 years,
from the date on which the interim order came into force.
No period during which the order was to remain in force was specified in the order. Under s 32 of the Restraining Orders Act, if an interim order is made, whether by telephone or otherwise, that order will become a final order unless, within 21 days of being served with the order, the respondent returns to a registrar a copy of the order endorsed with an objection to the order finally coming into force.
Therefore, under s 16(5), there are three different periods during which a final order may remain in force, and there was nothing on the face of this order to show which it might be. The first period, under s 16(5)(a), if this was a final order made at a final order hearing, was a period of 2 years from the date of service upon which the order came into force, 24 July 2008. On that basis, the order would have been in force so as to bind the appellant to obey it on the date of offence, 9 February 2010.
That would clearly not be the case under s 16(5)(b) if this was a final order resulting from an interim order made as the result of an application by telephone. Further, it was impossible to say, on the face of the order, what the position would be under s 16(5)(c), because the period of 2 years which would run in relation to a final order derived from an interim order under s 32 would commence on the date when the interim order came into force, and there was nothing in the prosecution evidence to prove when that might have been.
It is certainly the case, as Mr MacFarlane says, that at the outset of the trial (7 October 2010, ts 6 ‑ 9) he made it very clear that the defence did not admit that on the alleged day of the offence the appellant was bound by the restraining order tendered in evidence as exhibit 2 because that order was then in force. However, that exchange having preceded the prosecutor calling his witnesses, no evidence on the point beyond the tender of the restraining order was led.
Mr MacFarlane says that he took care in cross‑examining the prosecution witnesses, the young lady who was the protected person and her mother, not to go into areas of fact which might result in evidence being given that this was a final order operating for a period of 2 years, commencing on a date which would have caused it to remain in force on 9 February 2010.
On the hearing of the appeal I received in evidence an affidavit sworn by Mr MacFarlane. He deals with this point in pars 12 ‑ 15. He gives two examples. He says he took care in cross‑examining the appellant's former partner, when questioning her about the Family Court proceedings, not to specifically relate those proceedings and the orders made in the Family Court to the making and the finalisation of the restraining order.
He also refers to the evidence of this witness that, arising out of the visit by the appellant when he took the child, she was so worried that the child might be in danger that she telephoned the police and asked them to do a check on her son's wellbeing. Mr MacFarlane cross‑examined her on the point. He started by asking the witness why she let her son go with the appellant if she was worried by his behaviour. Why did she not just think to ring the police and get their support to refuse to let the child go? She volunteered, 'I've rung the police lots of times' (ts 31).
She denied that she rang the police 'ad nauseam' and said that she only did so on occasions when her former partner had breached either the Family Order or the violence restraining order, although she conceded that this was the only occasion when the appellant had been charged with breaching the restraining order. Her evidence was that it was not her understanding that because of the terms of the Family Court order, and because of the exclusion in the restraining order in respect of the operation of the Family Court order, the restraining order did not apply at all on the occasion in question (ts 33).
I presume Mr MacFarlane's proposition is that he refrained from putting specific occasions when the witness had rung the police to make a complaint about the appellant's behaviour. As I understand it, he says he did so because in answering those questions, the witness may have given evidence which established the start date for the final restraining order, putting the incident on 9 February 2010 within the 2‑year period of the operation of the order.
I confess that I find that difficult to understand. She had already said that she only rang the police on occasions when the appellant was guilty of a breach of the order. What the defence were hoping to establish was that, on the contrary, the number of calls and the circumstances in which they were made, despite the fact that they were made during the period of the operation of the restraining order, would show that she was a serial complainant who sought, without adequate justification, to make life difficult for the appellant by making him the subject of numerous police investigations.
The proposition appears to be that for the appellant, counsel declined to try that line of cross‑examination so as to preserve what then appeared to be an emerging gap in the prosecution evidence in relation to the question whether, at the relevant time, the appellant was bound by the order.
It is not for me to comment on the wisdom of that decision. But it is evident that the decision was a matter of tactical judgment, and there can be no suggestion that the appellant is not bound by the forensic decision made. This is not a case, by any means, in which it might be said that to make the decision under discussion reveals any lack of competence which, of itself, might ground a challenge to the resultant conviction on the ground that a miscarriage of justice has occurred: R v Birks (1990) 19 NSWLR 677; The State of Western Australia v Wood [2008] WASCA 81; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9].
In relation to this point, it is also noteworthy, I think, that when the case continued and the defence was called upon, after a no case submission had been made and dealt with, no application was made on behalf of the appellant for leave to have the prosecution witnesses recalled for further cross‑examination.

The no case submission and its aftermath

At the conclusion of the prosecution case, the trial was adjourned because the appellant advised that he elected to give evidence and the lateness of the hour prevented the matter being finalised on the day in question. When the trial resumed, defence counsel made his no case submission. He raised the point about the lack of proof that the restraining order relied upon was in force and bound the appellant on the date when it was allegedly breached.
In his response, the prosecuting sergeant made three points. He argued that on the proper interpretation of the relevant provisions of the Restraining Orders Act, the order in evidence had to be a final order made after a final order hearing, within the meaning of the Act. He submitted that the evidence in support of that conclusion was provided by the document which was exhibit 2, which said it was a final order. That had to be accepted at face value, the prosecutor submitted.
Finally, the prosecutor relied on the provisions of s 62 of the Criminal Procedure Act2004 (WA). That section applies in relation to prosecutions in courts of summary jurisdiction where what are described as listed simple offences are charged. Such offences are prescribed by regulation. The prosecutor observed that the offence charged in this case was a listed simple offence.
That being the case, the prosecutor argued, s 61(4)(c) required the accused, at least 14 days before the trial date, to serve upon the prosecutor, 'written notice of the factual elements of the offence that the accused may contend cannot be proved'. This was, at best, a technical argument in view of the oral notice of the potential difficulty in proving that the restraining order was in force to bind the appellant on the date of the commission of the alleged breach of the restraining order.
More fundamentally, however, the argument lacked merit because there was nothing to cause the appellant to suppose, up to 14 days before the trial date, that the prosecutor could not prove the fact in issue, rather than that he might simply fail to do so.
However, based on the argument that there had been a failure by the defence to comply with its disclosure obligation, the prosecutor foreshadowed an application, under s 63(2) of the Criminal Procedure Act, for the trial to be adjourned for a period sufficient to allow the prosecutor to investigate the matter which had been ultimately disclosed, 'and to obtain any further evidence that may be necessary as a result of the disclosure'. The prosecuting sergeant said that he would make that application if his other arguments failed and if the court felt that it was necessary for the prosecution to reopen its case in order to prove the fact in issue to the necessary standard (15 November 2010, ts 6).

Her Honour reserved her decision and adjourned the trial. Upon resumption, she gave oral reasons for her conclusion that the relevant fact in issue had not been proved. She said:
I would therefore find that the accused does not have a case to answer on the prosecution case as it was closed on 23 August 2010 (14 December 2010, ts 4).
Her Honour then turned her attention to what she described as the prosecutor's application for an adjournment to enable him to reopen his case and gather such additional evidence as may be required.
Her Honour took the view that to grant such an application to allow the prosecution to reopen should only be exercised with caution, when it was in the interests of justice to do so (ts 5). Nor did she consider (rightly, in my view) that to allow the application would involve any splitting of the prosecution case. She considered that to allow the application would involve minimal prejudice to the appellant, but not to allow it would, of course, be fatal to the prosecution.
As soon as her Honour the magistrate gave that decision, defence counsel asked for a moment to obtain instructions. When the hearing resumed, counsel announced that he was instructed that an admission would be made formally, pursuant to s 32 of the Evidence Act 1906 (WA), 'that there was a violence restraining order in place at the relevant time; that is, 9 February' (ts 7).
In his affidavit, counsel explained that he thought it was pointless to delay the trial, which he hoped could be continued on that day, so as to allow the prosecutor to investigate whether there was evidence available to prove the fact in issue. It seems that it is accepted that the fact that the violence restraining order was in force on the date upon which it was alleged the order was breached could be readily proved.
The admission was made because counsel took the view that the no case submission having succeeded and her Honour the magistrate having ruled in favour of the appellant, the decision to grant an adjournment to enable the prosecutor to reopen his case was appellable upon the grounds now advanced. Essentially, the view counsel took was that the no case submission having succeeded, the court was obliged to acquit.

The merits of the appeal

The parties are, rightly, both of the view that the no case submission had to succeed. The prosecutor had failed to prove an essential element of the charge, the binding force of the restraining order on the date of the commission of the offence. It is trite law to say that the question was whether the appellant could, on the state of the evidence, lawfully be convicted: May v O'Sullivan (1955) 92 CLR 654, 658.
Where, upon the close of the prosecution case, the judge finds that an accused has no case to answer, he may be acquitted. If there is a jury, the jury is to be discharged: Criminal Procedure Act, s 108. The procedure in the Magistrates Court is the same: Criminal Procedure Act, s 65(4)(b).
Here, her Honour the magistrate concluded that she 'would' uphold the no case submission. The proper interpretation of what her Honour said may be that, subject to the question of the grant of an adjournment to enable the prosecutor to see if he could cure the omission, she was prepared to uphold the no case submission. It may be that her Honour's conclusion should be interpreted in that way, rather than that she made the finding that the appellant had no case to answer.
But in my opinion, whether that is the proper view of what her Honour said, or whether she is to be taken as making the finding that there was no case to answer, matters not. It cannot, I think, be the case that her Honour was then functus officio, in the sense that she had no jurisdiction or power to do anything other than to enter judgment of acquittal and discharge the appellant. She had the power, I think, to rule upon the adjournment application, foreshadowed if her Honour took the view that the arguments presented by the prosecutor should be rejected and that the proper conclusion was that there was no case to answer.
If, ultimately, the prosecution was to be permitted to reopen its case, in my view that involved no splitting of the case, sandwiching any part of the defence case. The effect would simply be the effective withdrawal of the formal closure of the prosecution case to allow its continuation for the limited purpose of adducing evidence to prove an essential matter of fact upon which the prosecution depended.
The court had ample power to adjourn the charge when it did. It could take that course, 'for any good reason': Criminal Procedure Act, s 75(3). It might be a good reason to adjourn the case to allow the prosecution to reopen its case: Burgoyne v Earl [1999] WASCA 154 [9] (McKechnie J).
The binding force of the restraining order at the relevant time was not simply a technical matter. It was an essential substantive element of the prosecution case, but it was not the matter truly at issue between these parties. The issue was whether the behaviour of the appellant should be found to be a breach of the restraining order, in accordance with the evidence of the appellant's former partner and her mother, or whether his evidence should be preferred or, at least, if it could not be rejected, whether that would properly give rise to a reasonable doubt in relation to the establishment of the breach.
The course her Honour took amounted to permitting the respondent to reopen his case, which would then be adjourned, to determine whether the prosecutor could prove the binding force of the restraining order at the relevant date. He had failed to provide that proof, in effect in the mistaken belief that no evidence other than that which had been adduced was required. In those circumstances, in my view, the decision to allow the prosecutor to reopen his case was clearly justified: Henning v Lynch [1974] 2 NSWLR 254, 259; Williams v Berini [1960] WAR 21, 22.
The interests of justice clearly favoured that course. If the binding operation of the restraining order could be proved, the court could focus its attention upon the question of its breach. In that event, the appellant suffered no relevant prejudice. If it could not be proved, he would ultimately be entitled to his acquittal.
However, I cannot overlook the fact that the binding force of the restraining order was admitted, and by that means the proof was provided. It was open to the court to have regard to that evidence. It was evidence which negated the conclusion that there had been any miscarriage of justice: Prashar v The Queen (1989) 1 WAR 190.
The appeal must be dismissed.