Howley v Williams No. Scciv-02-643

[2002] SASC 353

HOWLEY v WILLIAMS
[2002] SASC 353

Magistrates Appeal:  Criminal

1. MULLIGHAN J                 The appellant appeals against a restraining order made against him by a learned Magistrate on 12^th April 2002 pursuant to s 99 of the Summary Procedure Act 1921.

2. He lives at 21 Barker Crescent, Smithfield Plains. He made and laid a complaint on 20^th July 2001 against the respondent who lives in the same street at number 34. He alleged that the respondent behaved in a provocative manner which behaviour was likely to lead to a breach of the peace and unless restrained she was likely to behave in the same or a similar manner and further that she had caused damage to his property and unless restrained was likely again to cause damage to his property.

3. The complaint came on for hearing before a learned Magistrate on 25^th February 2002. The appellant gave evidence and called his partner, Ms M A E Williams, who lives with him. The respondent also gave evidence and called another witness, Mrs Rudani. At the end of the respondent’s case, the learned Magistrate made it clear that he would make a restraining order against the respondent. He invited the respondent to make and lay the complaint against the appellant and she did so. In her complaint she made allegations similar to those alleged in the complaint of the appellant, except that she did not make allegations of damage to property, but she alleged that the appellant had threatened personal injury to her and was likely to carry out that threat unless restrained. She sought an order that he be restrained from abusing, intimidating and harassing her. The learned Magistrate then said:

   “And I intend once your application has been lodged and you can do that this morning to make mutual restraining orders against both of you [the appellant and the respondent] so that you both are obliged to respect each other’s dignity and not carry on with this nonsense any further.”

   After some discussion, the hearing was adjourned at the request of the appellant and it resumed on 3^rd May 2002. The appellant gave further evidence. The respondent then gave further evidence. The learned Magistrate then made a restraining order against both the appellant and the respondent. He gave reasons for his decision ex tempore. He found that the respondent had engaged in behaviour which was intimidating or offensive to the appellant on two or more separate occasions and that there was a reasonable apprehension held by the appellant that she had not only engaged in such behaviour but that the behaviour would continue without a restraining order being made. He said that he was satisfied that it was a reasonable inference from the duration and the number of complaints that have been made that she may well have incited her children to behave in an offensive and intimidating manner towards the appellant and his partner.

4. There is no appeal against that order.

5. The learned Magistrate then made a restraining order against the appellant. He said:

   “I am equally satisfied that there has been at least two occasions when Mr Howley has engaged in offensive or intimidatory behaviour towards you and the behaviour is likely to continue. In so saying I unhesitatingly accept the evidence that was given to me by Ms Rudani on the last occasion. I also make an order which restrains Mr Howley from behaving in an intimidating or offensive manner towards you.”

6. The evidence given before the learned Magistrate reveals very bad behaviour on the part of each of the parties towards each other so much so that the learned Magistrate was entitled to refer to the behaviour as “this nonsense”. It follows that he did not accept either the appellant or the respondent as witnesses of truth and that he accepted the evidence of Mrs Rudani and rejected the evidence of the appellant when it was in conflict with her evidence.

7. The grounds of the appeal are that:

   1The order made against the appellant was not “legal”, presumably because the learned Magistrate invited the respondent to make the application for the restraining order.

   2Witnesses were intimidated and refused to attend the Court.

   3The evidence given by the respondent was false, misleading, hearsay and no dates were supplied for the defence.

8. Before considering each of these grounds of appeal, it is appropriate to make the observations that the transcript reveals that the learned Magistrate approached this matter with considerable patience. Both parties were unrepresented. The learned Magistrate assisted them to give their evidence and to examine or cross-examine other witnesses as the case may be. He assisted both of them in the presentation of their cases and was able to focus upon the important issues in the case without receiving much assistance from either of them.

9. The first ground of appeal must fail. Having heard the evidence of Mrs Rudani, the learned Magistrate could obviously see the potential for further trouble and possible injustice if both parties did not keep the peace towards each other.

10. It is appropriate to mention features of her evidence. She lives next door to the appellant at 23 Barker Crescent. She has been living at that house for nearly 20 years and the appellant has lived next door to her for about seven years. She is aged 80 years. She told the learned Magistrate that the respondent has been to her home on occasions and she has heard the appellant abuse her as she has arrived and as she has left. His language to her has been abusive and offensive. She said that there had been many occasions of such behaviour. Mrs Rudani made notes of some of the instances.

11. She described incidents in particular which she has recorded in her notes when the appellant used foul and abusive language to her and to the respondent. The appellant denied these allegations in evidence but it is plain from the reasons given by the learned Magistrate that he rejected that evidence.

12. There was nothing unlawful about the invitation of the learned Magistrate to the respondent to lay a complaint so that a restraining order could be made against both parties. He made that invitation on 27^th February 2002. As has been seen, the respondent made and laid her complaint on that day. The learned Magistrate adjourned the hearing until 12^th April 2002 so that the appellant could prepare his defence. When the hearing resumed, the appellant gave further evidence. He said that further incidents had occurred since 27^th February involving abuse and offensive behaviour from a son of the appellant. He had every opportunity to make his defence to the allegations in the complaint of the respondent.

13. I turn to the second ground of appeal. There was no evidence before the learned Magistrate that witnesses were intimidated and refused to attend the trial. Upon the hearing of this appeal, the appellant said that he could not call witnesses because they had run away. It is not suggested that at the time of the trial witnesses had refused to give evidence. As has been mentioned, the appellant and his partner gave evidence. He tendered photographs and a video which tended to establish that he had been harassed in an offensive manner by someone, probably a son of the respondent and the learned Magistrate concluded that the appellant had made out his case against the respondent. There was no suggestion before the learned Magistrate, or upon the hearing of the appeal, that the appellant was prejudiced in making his defence to the complaint of the respondent. This ground also fails.

14. The assertion in the third ground of appeal is true to a limited extent. The learned Magistrate found that the respondent had a case to answer after the appellant had completed his case and found against her after she had given evidence. Her denial of the appellant’s case was, to some extent, rejected. As has been seen, he found that she had engaged in intimidating and offensive behaviour towards the appellant on two or more separate occasions. In making that finding, the learned Magistrate rejected her evidence to the contrary and I expect he rejected much of her evidence relating to allegations against the appellant. Also, it is correct to say that much of her evidence lacked particulars of when the alleged conduct of the appellant was said to have occurred.

15. However, as has been seen, the learned Magistrate did not base his findings as to conduct of the appellant on the evidence of the respondent, but on the evidence of Mrs Rudani. Consequently, this ground also fails.

16. At the hearing of the appeal, the appellant maintained that he had done nothing to warrant a restraining order being made against him. He claimed that he was the victim and not the aggressor and consequently the restraining order against him should be set aside.

17. The findings of the learned Magistrate against the appellant were open to him and may not be set aside on this appeal. They are based mainly upon his conclusions about Mrs Rudani and the appellant and there is no basis on this appeal to reject those findings.

18. The appeal is dismissed.