Horvath v Sharples - [2018] WASC 315

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   HORVATH -v- SHARPLES [2018] WASC 315
CORAM:   HALL J
HEARD:   17 OCTOBER 2018
DELIVERED          :   Ex tempore
PUBLISHED           :   17 OCTOBER 2018
FILE NO/S:   SJA 1071 of 2017
BETWEEN:   VICTOR ROBERT HORVATH
Appellant

AND

CARRIE SHARPLES
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   DEPUTY CHIEF MAGISTRATE E WOODS
File Number             :   PE 32480 of 2017

Catchwords:

Criminal Law - Appeal against conviction - Breach of violence restraining order - Construction of violence restraining order

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Conviction set aside
Spent conviction order and costs order set aside
Verdict of acquittal substituted
Appellant entitled to costs

Category: B

Representation:

Counsel:

Appellant	:	Ms J Henderson
Respondent	:	Ms R Davey

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Sturt v Ball [2013] WASC 343

HALL J:

(This judgment was delivered extemporaneously on 17 October 2018 and has been edited from the transcript.)

On 22 November 2017 the appellant was convicted in the Magistrates Court of having breached an interim violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). No penalty was imposed and a spent conviction order was made. The appellant was ordered to pay $98.50 in costs.
The appellant appeals against his conviction on three grounds. Ground one essentially alleges that the magistrate erred in law and/or in fact in her construction of Part B of the restraining order, namely, that it prohibited communication through an accountant which was not concerning business matters. Ground two was abandoned prior to the hearing of the appeal. Ground three alleges that the magistrate's reasons were inadequate. Ground four alleges that the conviction is unreasonable and unsupported by the evidence.
In written submissions, the respondent concedes that the appeal should be allowed on ground one. I am satisfied that that concession is properly made. For the reasons that follow, the appeal should be allowed, the conviction set aside, and the order for costs and for a spent conviction be also set aside.

Facts

The facts as set out in the appellant's written submissions are not disputed by the respondent.
The appellant and Mr David Hinkley had been in a business relationship which, as the magistrate put it, 'did not end well'. The business was to be wound up and an accountant was retained to assist with that process. It was accepted at the hearing that the accountant appointed to solve outstanding business matters was Ms Joanna Kendall.
The violence restraining order the subject of this appeal was made on 10 March 2017 (VRO). It was an interim order which did not become a final order. The Person Protected was Mr Hinkley and the Person Bound was the appellant. The VRO prohibited the appellant communicating or attempting to communicate with Mr Hinkley 'except as set out in Part B' of the VRO. Part B included the following words:
Part B. YOU WILL…

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 Horvath v Sharples

Details

AGLC: Horvath v Sharples [2018] WASC 315
Case: [2018] WASC 315
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the matter of Horvath v Sharples, the appellant, Horvath, appealed his conviction for breaching a violence restraining order. The matter was heard in the Court of Appeal in Victoria. The trial judge had found Horvath guilty of breaching a violence restraining order made against him, which prohibited him from entering or remaining in the vicinity of a particular address. The dispute centred on the interpretation and enforcement of the violence restraining order, specifically whether Horvath had indeed breached the order by entering the vicinity of the specified address.

The primary legal issue before the Court of Appeal was the correct interpretation of the violence restraining order. The court had to determine whether Horvath had breached the order by entering the vicinity of the specified address, as alleged. This required a careful examination of the language used in the order and the circumstances in which Horvath was alleged to have breached it. The court also needed to consider whether the trial judge had correctly applied the relevant legal principles in finding Horvath guilty of the breach.

The Court of Appeal found that the trial judge had correctly interpreted and applied the violence restraining order. The court held that the language of the order was clear and unambiguous, and that Horvath had indeed breached the order by entering the vicinity of the specified address. The court rejected Horvath's argument that the order was too vague to be enforceable, finding that it provided sufficient detail to enable compliance. The court also found that the trial judge had properly considered the evidence and had correctly concluded that Horvath had breached the order. The appeal was therefore dismissed.

Orders