Horsman v Breese
[2000] WASCA 244
•31 JULY 2000
HORSMAN -v- BREESE [2000] WASCA 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 244 | |
| Case No: | SJA:1173/1999 | 31 JULY 2000 | |
| Coram: | MURRAY J | 31/07/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | BARRY STANLEY HORSMAN ANN PAULINE BREESE |
Catchwords: | Courts of summary jurisdiction Application for violence restraining order Whether order justified on the evidence Turns on own facts |
Legislation: | Restraining Orders Act 1997, s11, s12 |
Case References: | Garrett v Nicholson (1999) 21 WAR 226 Low v Weber [1999] WASCA 274 Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ANN PAULINE BREESE
Respondent
Catchwords:
Courts of summary jurisdiction - Application for violence restraining order - Whether order justified on the evidence - Turns on own facts
Legislation:
Restraining Orders Act 1997, s11, s12
Result:
Appeal allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr R K Williamson
Respondent : Mr R W Bower
Solicitors:
Appellant : Williamson & Co
Respondent : Corsers
Case(s) referred to in judgment(s):
Garrett v Nicholson (1999) 21 WAR 226
Case(s) also cited:
Low v Weber [1999] WASCA 274
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999
(Page 3)
1 MURRAY J: The appeal brought by leave granted by Heenan J on 23 March 2000 is against a decision of the Court of Petty Sessions at Kalgoorlie given on an application, by way of complaint, for a violence restraining order, that application being made by the respondent to the appeal against the appellant. The application for the violence restraining order identified as the ground of application, not that the present appellant was likely to commit a violent personal offence against the respondent, but that he was likely to behave in a manner to cause that person to fear that the respondent would commit a violent personal offence against the protected person. The document contained reference to the possession of firearms on the part of the appellant.
2 That was an application under the terms of the Restraining Orders Act 1997, and relevantly for present purposes it is sufficient, without going in detail to the procedural provisions of the Act, to refer to the substantive matters dealt with in s 11 and s 12. Section 11 provides:
"A court may make a violence restraining order if it is satisfied that -
(a) unless restrained, the respondent is likely to -
(i) commit a violent personal offence against the applicant; or
(ii) behave in a manner that could reasonably be expected to cause the applicant (or if the application is made by another person on behalf of the applicant, that other person) to fear that the respondent will commit such an offence;
and
(b) granting a violence restraining order is appropriate in the circumstances."
3 The relevant ground in this case that was to be made out was that the appellant was likely to behave in a way which might reasonably cause the respondent to fear that the appellant would commit a violent personal offence against her. Generally speaking a violent personal offence is defined by the Act to mean what the term suggests: some form of physical attack or activity of that kind upon the applicant for the order. If such a ground is made out and the court thinks that granting a violence
(Page 4)
- restraining order is appropriate in the circumstances, then it may make the violence restraining order.
4 Section 12 provides a series of matters which are or may be relevant and to which the Court is to have regard to in considering whether or not to make a violence restraining order and the terms of the order, as follows:
"(1) When considering whether to make a violence restraining order and the terms of the order a court is to have regard to -
(a) the need to ensure that the applicant is protected from personal violence;
(b) the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;
(c) the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;
(d) the accommodation needs of the respondent and the applicant;
(e) hardship that may be caused to the respondent if the order is made;
(f) any family orders;
(g) other current legal proceedings involving the respondent or the applicant;
(h) any criminal record of the respondent;
(i) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and
(j) other matters the court considers relevant.
(2) A court is to have regard to the matters set out in subsection (1) (a), (b) and (c) as being of primary importance."
(Page 5)
5 So the scheme of the Act seems to me to be abundantly clear. It is designed as a protective mechanism to enable a court to intervene before violence actually occurs to prevent that, or the fear of such violence being reasonably engendered. So it is to protect against reasonable fear as well as to protect against the occurrence of the violent offence and the likelihood of that occurrence.
6 It is necessary before going to the proceedings to look at two affidavits which the respondent wishes to place before the court. The first is an affidavit of Ms Breese herself and it is primarily concerned to place before the court the full transcript of the hearing, firstly, on 31 May 1999 which was when the substantive matter was actually heard and is a date to which I shall return. Then it is concerned to place before the court transcript of a later hearing on 2 July 1999 before a different Magistrate when a number of matters were finally dealt with including, relevantly, two alleged breaches of the violence restraining order, one on 22 June 1999 by entering work premises, to which a guilty plea was entered, and one on 28 May 1999 by entering the residential premises of the respondent, to which a plea of not guilty was entered and in respect of which the appellant was ultimately acquitted.
7 Then there are matters concerned with firearms, the discovery and delivery up of firearms, conditions in relation to the holding of firearms and matters of that kind, to which offences pleas of guilty were entered, but which are the subject of further appeal and two other matters which are not the subject of the appeal at all. So far as Ms Breese's affidavit puts before the Court the full content of the proceedings of 31 May, it may, I think, be taken into evidence on the hearing of the appeal as part of the context, although it refers to other legal proceedings, but in the end, as will appear, it seems to me that that provides little assistance to the Court in determining the appeal.
8 So far as the proceedings before the Court of Petty Sessions on 2 July 1999 are concerned, it seems to me that this material should not be admitted into evidence and there is no argument, in my respectful opinion, which would support its admission as fresh evidence. It is simply concerned with matters upon which adjudications were made at a time subsequent to the making of the orders which are now challenged in this particular appeal. That material is not, in my view, in these proceedings admissible and I will exclude it.
9 The further aspect of the affidavit to which I should refer is that the respondent makes some observations directing the attention of this Court
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- to the fact that the Magistrate had before him a number of proceedings concerning the appellant and the firearms and the history, at times contemporaneous with the making of the orders. So much is indeed the case but to my mind to make that observation assists the court not at all to resolve the appeal because it does no more than focus upon the need, if the court below is to make appropriate orders under the Restraining Orders Act, to ensure that it has before it matters which provide a sound evidentiary basis upon which to ground the making of the orders, particularly having regard to the terms of s 12(1)(g) of the Act.
10 The final paragraph of Ms Breese's affidavit is, I think, objectionable. She expresses a continuing fear of the applicant and she makes some observations about the present state of the applicant and his present character. Those are matters upon which, seems to me, I may not rely in finally determining the appeal.
11 Then there is the affidavit of Constable Webb which seeks to place before the Court a picture to the effect that there were firearms, it appeared three in number; a revolver and two repeater rifles, about which the officer formed the view in speaking to the appellant that the appellant was unwilling to assist the police in relation to the whereabouts of the weapons, that he was evasive when asked direct questions. The officer says that, in circumstances which are not entirely clear to me, he charged Mr Horsman with two counts of breaching the violence restraining order which in an interim form, at least, it would appear was at that time in existence.
12 The affidavit contains in its expression of those conclusions some objectionable material but to my mind, so far as it refers to admissions made by the applicant, it is to be dealt with on a different basis. It is difficult to determine where these matters fit in the appropriate chronology of events and that is not made abundantly clear by the affidavit itself. However, when it is put together with transcript it seems that the location of the firearms on the farm at York was disclosed on 31 May 1999. That is my recollection of that and that is the extent to which I will admit in evidence the second affidavit of Ms Breese. It is from there that I get the information.
13 Constable Webb's affidavit identifies material which was before the learned Magistrate and, except to the extent that it expresses a view about Mr Horsman's dealing with the police and the officer's view of that, it seems to me to contain material which is admissible on the hearing of the appeal as being material which describes the position of the appellant with
(Page 7)
- respect to the firearms at a time contemporaneously with the proceedings concerning the violence restraining order. I would conclude from that material that the appellant was certainly unwilling to disclose the location and to give up the weapons which have been identified. The further question of course which requires to be addressed is where that takes the court, or where that should have taken the Court of Petty Sessions.
14 That brings me particularly to the appeal and its grounds. The first is that the decision of the learned Magistrate should be set aside on the ground that he gave no reasons for it. The second says that substantively the decision is insupportable having regard to the evidence before the court.
15 It is necessary to look briefly at the proceedings as they developed. The application for the violence restraining order to which I have referred was before the court first on an ex parte basis on 23 April 1999. There the respondent referred to the fact that she and the appellant were arguing all the time and he was abusive to her. She said that was verbal abuse; he swore at her. When asked by the Magistrate directly, she said she was frightened what he might do. When asked what he would do, she said, "I really don't know but I'm frightened that he will become violent with me because I'm not doing what he wants me to do." When asked about past violence, she said there had been a fight before. It had been about 2 years ago. It involved him taking hold of her by the throat and having her on the ground, and then there is reference to fear for the children.
16 The Magistrate brought the hearing back to this idea that the appellant had been abusive towards her. She said that by that she meant he was swearing at her, saying, "Fuck you," and words like that - "Calling me a bitch; calling me a bad wife; that I don't know what I'm doing." On the basis of that evidence the interim order was made, including an order that the firearms and the firearms licence were to be given up. As I have said, it is abundantly clear that despite the making of that order the appellant remained unwilling to comply.
17 The matter of the application for the violence restraining order to be issued in final form came on for hearing on 31 May 1999. The respondent then said that during the time when she and the appellant were married it was difficult. There had been a separation in 1997 before they were married. She said in March 1997 there had been an argument. She said the appellant caught her, forced her to the ground and put his hand around her throat. She said, "If I didn't give in he would kill me," so there was a threat of some substance made at that time as well. Eventually he let her
(Page 8)
- go. She went and stayed with members of her family and although at that time she attempted to obtain a restraining order it was unable to be served upon the appellant.
18 She thought that he had psychological or psychiatric difficulties. He was taking Valium. When later brought back to that particular incident she said that there had been an argument in which she had thrown a bottle at him, missed him, ran, "and that's when he caught me and forced me to the ground." So it was clear that it was an incident of that character and although a violent incident and one involving threats on the part of the respondent it appeared that there was no evidence of any other such incident. Although they were then separated her evidence was that he came back to her and asked to re-establish the relationship. She said she believed that they could "make a go of it", to use her words, and it seems that following that, on 24 April 1998, they were indeed married.
19 Bear in mind that she is now giving this evidence on 31 May 1999. She then said that over the last few months the appellant had been very argumentative, possessive of her and jealous and she went on to describe some events concerned with that, including some controlling activity involving some violence towards a son, that her daughter had left home and gone to her natural father and that her relationship with her immediate family, her parents and her brothers, had deteriorated quite extensively. She then simply said that she had sought the order and she now continued to seek the order because she felt frightened of his behaviour and worried that he would act in a violent way again towards her.
20 When cross-examined by counsel for the appellant she said that although he had been verbally abusive towards her the appellant had not threatened her life, he had not been physically violent with her, he had made no threats against her to commit any violent act, to hurt her in any way. She gave that information directly in answer to questions asked in cross-examination. So when it was put that there were arguments between them she said that they concerned things like, she was discouraged from working, the boys were grounded - "I get told off for supporting my boys" - for being late home from work. I gather she was saying she wasn't allowed to work but she had a horse, she had things to do, she had to go shopping, she had to visit her friends. She wasn't allowed to have any friends. And there it was left.
21 Upon that basis the learned Magistrate said that he would consider what order should be made and he adjourned the matter and reserved his
(Page 9)
- decision, a decision which he gave on 25 June 1999 when his Worship simply said:
"I am of the view that it is a matter which in fact should be dealt with by way of a confirmation of the order and I do so for 2 years from 23 April."
23 In such a case as that it may be possible for an appellate court to say that the correctness of the decision was beyond argument, but otherwise it may be the case that the failure to give adequate reasons is of itself a sufficient ground to set aside the decision below. That without more would be this case in my opinion. Most recently this Court has expressed itself in those terms in Garrett v Nicholson (1999) 21 WAR 226 at 237 but I will not deal with the matter finally on that basis. It seems to me that I should deal with the substantive matters raised.
24 The conclusion to which I have come is that the material to which I have referred placed before the court, including that concerned with the behaviour of the appellant in relation to the firearms, was in all its context insufficient to ground the making of a violence restraining order. I shall identify my reasons for that view, but before doing so I wish to say that to make that broad observation should not convey that the case for the making of a violence restraining order might not have been mounted, as at the time it was heard, upon more complete or full evidence which would give the court a proper basis upon which to make the order it did. The observation I make is that the evidence before the court below in my opinion lacked the capacity reasonably to persuade the court to the view that there was at the time when the order was made a reasonable
(Page 10)
- expectation that the applicant might be caused to fear that the appellant would commit against her a violent personal offence.
25 My reasons for that view are as follows: there was one previous incident of violence upon which reliance might be placed. It had happened nearly 2 years before. It happened before the parties were married. It happened in circumstances where apparently it was suggested there were particular psychological or other personal problems besetting the respondent for which treatment was being taken. There is no suggestion of any evidence to enable a conclusion to be drawn that the appellant's character continued to be of the kind which produced the violent response on the occasion which had occurred earlier. There was also at that earlier time provocative behaviour on the part of the respondent. The persuasive power of that incident to carry into the future the broad conclusion that by reason of its occurrence the appellant might be a person who could reasonably be expected to behave violently towards the respondent in the future was in my respectful opinion quite limited.
26 Beyond that there was little to ground the order. The events of the previous few months as described by the respondent were limited to abuse denigrating the respondent, her behaviour as a responsible mother and one gathers as a wife, and abuse associated with controlling behaviour which might be described as being produced by the spring of jealousy. In that alone there was, it seems to me, nothing of particular relevance to support the view that there might reasonably be fear that the appellant would commit in future a violent personal offence against the respondent. To my mind that was particularly so when, under cross-examination, the respondent's account was stripped to the bare essentials to which I have referred. That process revealed that her fear could not at that point, although no doubt genuine, be said to be reasonably grounded in the expectation of the likelihood of the commission of a violent personal offence against her.
27 I have said that that says nothing about what case might have been mounted. It is sufficient, in my view, that I conclude that on the evidence before the court there was an insufficiently cogent case. I include in that observation, finally, the reference to the firearms. There was no suggestion that at any time there had been any behaviour with the firearms, or involving the firearms, or threats concerning the firearms which in any way related to the grounds upon which a violence restraining order could properly be made or which would take the court beyond the proposition that the appellant, upon the making of the interim order, was
(Page 11)
- resisting the process by which he was required to give up both the licence and the weapons themselves. There was nothing to link that resistance, and I make no comment beyond that observation, to his behaviour, or reasonably anticipated behaviour, towards the respondent.
28 For those reasons, in my opinion this appeal should be allowed.
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