Ina Vukic v Denise Edgerton and Rade Cikes - [2001] NSWCCA 2

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Ina Vukic v Denise Edgerton and Rade Cikes [2001] NSWCCA 2

FILE NUMBER(S):
60094/00

HEARING DATE(S): 5/9/00

JUDGMENT DATE: 10/04/2001

PARTIES:
Ina Vukic
Denise Edgerton
Rade Cikes

JUDGMENT OF: Mason P Dowd J Austin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 96/12/1130-1

LOWER COURT JUDICIAL OFFICER: Davidson DCJ

COUNSEL:
Mr F McAlary QC, Mr P Kintominas- Appellant
Mr A Bellanto QC, Mr P Lowe- Respondents

SOLICITORS:
Direct Access- Appellant
Tress Cocks & Maddox- Respondents

CATCHWORDS:
Stated case
No power to state case
Apprehended Violence Order
No power to extend after expiry
Inappropriate form
Powers on appeal

LEGISLATION CITED:
Bail Act 1978
Courts Legislation Amendment Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Justices Act 1902
Justices Legislation Amendment (Appeals) Act 1998
Limitation Act 1969
Suitors Fund Act 1951

DECISION:
1. Decline to answer stated case; 2. Decision of District Court and Local Court quashed; 3. Appeal upheld; 4. Apprehended Violence Order created; 5. Costs.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
MASON P
DOWD J
AUSTIN J
10 April 2001
60094/00
Ina VUKIC v Denise EDGERTON and Rade CIKES
JUDGMENT

MASON P: I agree with Dowd J.
DOWD J: This is an appeal by way of stated case by Davidson DCJ, for the determination of this Court of a question of law arising in an appeal from the Downing Centre Local Court by the appellant, Ina Vukic, to the Criminal Jurisdiction of the District Court, she being the defendant in the Local Court proceedings.
On 26 October 1994, the appellant, without admissions, consented to an Apprehended Violence Order being made against her in the Local Court under Part 15A of the Crimes Act 1900 (‘the Act’), in favour of each of the respondents. The period of the order extended for eighteen months, until 25 April 1996.
On 1 March 1996, the appellant applied to the North Sydney Local Court to revoke the orders that had been made. At that same court, the respondents applied for an extension of those orders on 19 March 1996, the application being made pursuant to s562F(4)(a) of the Act.
On 20 March 1996, both applications were returnable at the North Sydney Local Court, the presiding magistrate then transferring the matter for hearing to the Downing Centre Local Court on 15 May 1996, after the expiry of the original orders on 25 April 1996.
On the respondents’ application, the hearing date, 15 May 1996, was vacated and the matter was adjourned before McDougall LCM on 28 June 1996, the appellant having withdrawn her application to revoke the orders made on 26 October 1994. The question of the extension of the orders was argued before the Learned Magistrate, and on 22 October 1996, an order was made in favour of each respondent for a period of ten years.
Both the Learned Magistrate at North Sydney and McDougall LCM, expressed the view that if an application to extend was lodged whilst an order was still in force, then there had to be an adjudication of that application, even though outside the period of the order, and that the order’s effect was then retrospective to the date of application.
The appellant appealed to the District Court against the Learned Magistrate’s orders, the matter coming before Davidson DCJ, who expressed the view to the parties that pursuant to s125 of the Justices Act 1902, he was empowered to make such orders on appeal as might have been made by a magistrate, since the Learned Magistrate may have treated the application for variation as an application for a new order pursuant to s562B of the Act.
Section 125 of the Justices Act was amended by the Justices Legislation Amendment (Appeals) Act 1998, coming into effect on 1 March 1999, but the appeals provisions thus enacted apply only to convictions, orders made, or sentences imposed, after that date. Section 125 of the Justices Act as previously enacted, applied to the appeal to the District Court.
On behalf of the appellant, Mr Kintominas asked that a case be stated to the Court of Criminal Appeal, and the matter was adjourned to enable the preparation and submission of a draft stated case.
The draft stated case was not prepared until September 1998. Upon hearing the parties, Davidson DCJ was of the view that after the long delay, he should proceed to hear the matter on the merits, which he did, and the question of a stated case should be deferred.
His Honour, in a detailed judgment of 5 November 1999, recounted the history of the matter and examined and evaluated the evidence. His Honour confirmed the orders of McDougall LCM. His Honour deferred questions of the duration of the order and whether conditions ought to be attached to the order, and the question of costs, both before the Local Court and before His Honour.
It is not necessary here to repeat the lengthy history of the matter, suffice it to say that His Honour found that the appellant had been in a relationship with Mr Cikes. Both the appellant and Mr Cikes were members of the Croatian community and were involved in a local political organisation. Ms Edgerton worked for Mr Cikes.
His Honour found that a number of messages, by way of fax, letter, and oral communications were made by the appellant. His Honour found that the respondents had established a case of harassment on the part of the appellant.
His Honour found that on the hearing before the Learned Magistrate, the matter had been dealt with solely as an extension of the existing order and not as an application for a new order.
His Honour then held that his power under s125 of the Justices Act was not sustainable in the light of the limitation of the jurisdiction of the District Court to make orders imposed by s562G of the Act, His Honour holding that it had been open to the Learned Magistrate to have done so.
In this respect His Honour is in error as s562G of the Act grants original jurisdiction to the District Court in the circumstance where a complaint made by or on behalf of a person for whose protection an order is sought, had been dismissed by a Local Court or the Children’s Court. In such a case, the District Court has jurisdiction to vary or revoke an order made by that Court. This does not deal with the appellate jurisdiction of the District Court or any prerogative powers that the Supreme Court may have to deal with the matter. Section 562G of the Act does not apply in this case.
His Honour found that it was no fault of the applicant, but that of the Court’s calendar which prevented the matter from being heard. His Honour also found, as His Worship had found, that there was power in the Local Court to make a variation order to extend the previous order made, notwithstanding that the previous order had expired. In that respect, His Honour drew an analogy with civil proceedings and the power to extend times for filing process under various statutes of limitation. As His Honour was dealing, as he saw it, with proceedings that were in the nature of civil proceedings, the balance of justice dictated that the Local Court similarly had the power to proceed and make orders extending the expired order.
In a subsequent judgment of 21 January 2000, His Honour declined to state a case limited to a question of service on the appellant of the application for extension of the orders. In that same judgment, His Honour reaffirmed his view that the Learned Magistrate had power to make the order of 26 October 1996.
The question which His Honour then stated to this Court for determination, is in the following terms:
“Was I correct in holding that a Magistrate has a discretion to hear and determine an application under s562F of the Crimes Act 1900 as amended to extend the duration of apprehended violence orders made by the Local Court notwithstanding that the orders sought to be extended have expired by effluxion of time before the commencement of the hearing of the application where the application for the extension pursuant to s562F was made prior to the expiration of the original orders.”
There was a preliminary question before this Court that arose as to the competence of the appeal before this Court. An order was made by the Court at the hearing, extending time to the extent that it was necessary to allow this appeal to proceed under s5B(2) of the Criminal Appeal Act 1912.
It was submitted on behalf of the appellant, that to interpret the power of a magistrate, one must look at the wording of s562F of the Act as applied at the time of the application for variation. That section is now in the following terms:
Variation or revocation of court orders
562F (1) If an order is made:
(a) the protected person (whether or not the complainant),
(b) if the complainant was a police officer - that or any other police officer, or
(c) the defendant,
may, at any time, apply to a court for the variation or revocation of the order.
(2) Notwithstanding subsection (1), an application must be made by a police officer if the protected person is a child under the age of 16 years at the time of the application.
(2A) The application must set out the grounds on which the application is made and, in the case of variation, the nature of the variation sought. This subsection does not limit the powers of the court.
(3)The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke the order.
(4) In particular, an order may be varied under this section:
(a) by extending or reducing the period during which the order is to remain in force,
(b) by amending or deleting any prohibitions or restrictions specified in the order, or
(c) by specifying additional prohibitions or restrictions in the order.
(4A) The court may decline to hear an application for variation or revocation of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order.
(4B) If there is more than one protected person under an order, the following additional provisions apply to the variation or revocation of the order under this section:
(a) the order need not be varied or revoked in its application to all of the protected persons and can be varied or revoked in its application to any one or more of the protected persons,
(b) it is not necessary for all of the protected persons to have applied for the variation or revocation,
(c) if the application for variation or revocation was made by one of the protected persons, none of the other protected persons can be the subject of the variation or revocation unless the court is satisfied that:
(i) he or she is at least 16 years of age and has consented to the variation or revocation, or
(ii) he or she is a child under the age of 16 years and (in the case of revocation) is no longer in need of protection or (in the case of variation) is no longer in need of greater protection than that which will be afforded by the order as proposed to be varied,
(d) if a child under the age of 16 years is one of the protected persons it does not matter that the application for variation or revocation was made by a person other than a police officer.
(4C) If a child under the age of 16 years is a protected person under an order made under section 562BD, the applicant for the order (even if he or she is not a protected person under the order) can apply for the variation or revocation of the order in its application to the child. The court is not to grant the application unless satisfied that the child is (in the case of revocation) no longer in need of protection or (in the case of variation) no longer in need of greater protection than that which will be afforded by the order as proposed to be varied.
(5) An order shall not be varied or revoked on the application of the defendant unless notice of the application has been served on the protected person.
(6) An order shall not be varied or revoked on the application of the complainant or protected person unless notice of the application has been served on the defendant.
(7) Notice of an application shall be served personally or in such other manner as the court hearing the application directs.
(8) Despite subsection (6), the court may make an order extending the period during which the order is to remain in force without notice of the relevant application having been served on the defendant, if:
(a) the applicant lodged the application no later than 21 days before the day on which the order is due to expire, and
(b) the application is listed for mention before the court no later than 14 days after the day the application was lodged, and
(c) notice of the application has not been served on the defendant by the time the matter is heard by the court,
but, unless sooner revoked, such an order ceases to have effect 21 days after it is made or on an earlier date specified in the order. However, further orders may be made from time to time under this subsection before the order ceases to have effect.
Subsections 562F(2A) and (8) were added and came into effect on 26 April 2000, after the decisions of both the Learned Magistrate and Davidson DCJ. It should also be noted that subsections (4A), (4B) and (4C) of the Act came into effect subsequent to the order made by the Learned Magistrate and before the determination by His Honour. Although this was not pointed out during the course of the hearing, the wording of subsection (4C) seems to connote a present and future need for a child to be protected and thus seems to contemplate that it applies to an order still in existence.
Mr McAlary QC on behalf of the appellant, submitted that a variation order must have been made during the currency of an existing order, and sought comfort from the wording of subsection 562F(8), which clearly contemplates an order being made during the continuation of an existing order.
It was further submitted on behalf of the appellant that the use of the words “at any time” in subsection 562F(1), was equivocal and these words could not assist in determining the question of whether an application for variation must be made before the expiry of an existing order or may be made later.
The appellant also relied on the use of the words in s562F(4) of the Act, that an order may be varied by extending or reducing a period in which the order is to remain in force, and submitted that the word ‘extending’ connotes an order which is in existence. The appellant further relied on Brooke v Clarke & Ors 1B & Ald 396 at 403, where Lord Ellenborough CJ held:
“The word extension imports the continuance of an existing thing, and must have its full effect given to where it occurs…
“The word extension is too strong for me to grapple with; and if the court were to get rid of its operation, a great public injury would be effected, by calling back a right that, by lapse of time, had become extinct.”
The appellant further relied on a judgment of Fullagar J in Esso Research & Engineering Company v Commissioner for Patents (1959) 102 CLR 347 at 351:
“I think I would concede that a provision for ‘extending’ a prescribed period during which a thing may be done should prima facie be construed as operating only while the originally prescribed period is still current. It may even be said that, when the originally prescribed period has expired, there is nothing to ‘extend’. But, while this view may be said to represent the most natural meaning of the word ‘extend’, that word is by no means incapable of a wider reference. It is by no means a misuse of language to speak of what is really the prescription of a new period as an ‘extension’ of the period originally prescribed. Cases are numerous in which the conferring on a tribunal of a power to ‘extend’ the time for doing a thing is accompanied by an express provision that an ‘extension’ may be granted although the originally prescribed period has expired. An example ready to hand is s160 of the Patents Act, sub-s(2) of which says that ‘the time required for doing an act…may be extended under this section although that time has expired’. While these cases suggest that a power to extend time without more is prima facie to be regarded as a power to extend a period still current, they also indicate that an enlargement of time after the expiration of a prescribed period is quite naturally regarded as itself an ‘extension’.”
The passage seems to imply that in its natural meaning, ‘an order to extend’ must be made during the currency of an existing period, as the examples used for an extension after expiry are where specific statutory powers to ‘extend’ have been enacted. The appellant contended that in the absence of specific provisions such as the Supreme Court Rules or some statutory provision, there is in fact no power in the Magistrate to ‘extend’ an expired order.
The respondents’ first submission was that the District Court could not exercise a supervisory role in relation to the conduct of the Local Courts, as that was reserved to the jurisdiction of the Supreme Court, and that His Honour misconceived his function. In the alternative, if this Court found that His Honour erred in finding that the Learned Magistrate was within power, the respondents submitted that any error made by the Learned Magistrate was within jurisdiction, and that no error of law had been established on the part of the Magistrate.
The respondents submitted that His Honour was in error by applying the old s125 of the Justices Act, and that the new Part 5 of the Justices Act came into effect on 1 March 1999 on the proclamation of the Justices Legislation Amendment (Appeals) Act 1998. The respondents sought to rely on the consequential amendments found in Schedule 2, Part 14, clause 49 of the Justices Act. Clause 49, however, only relates to the amendments made by the Courts Legislation Amendment Act 1999. The relevant provision is in Part 12 of Schedule 2 of the Justices Act, which provides, in clause 40, that the new appeal provisions inserted by the Justices Legislation Amendment (Appeals) Act only apply to convictions or orders made or sentences imposed after the commencement of those Parts. Thus, as the original order was made in 1996, the new Part 5 does not apply.
It was not in issue that if the Learned Magistrate had erred in the exercise of his power, then certiorari would lie to the Supreme Court and that there was simultaneously an appeal under s125 of the Justices Act.
In R v Fraser [1977] 2 NSWLR 867 at 873, Street CJ held that there could be a right of application to the Supreme Court for prerogative relief. Alternatively, it was held that there could be an appeal by way of s5B of the Criminal Appeal Act 1912.
A question was raised as to the validity of that proposition as held in R v Fraser, in R v Clifford [1980] 1 NSWLR 314, where a discussion occurred as to the desirability of fresh consideration by the Court at some appropriate time to resolve the issue. It is not necessary, in these proceedings, to decide that issue.
By virtue of s125 of the Justices Act, His Honour was therefore exercising the same powers as were available for exercise by the Local Court Magistrate. Section 125(1) of the Justices Act as it then was is:
Powers of Court appealed to
125 (1) The Court hearing any appeal under this Division shall determine the matter of every such appeal, and may adjourn the hearing thereof, and may by its order confirm, quash, set aside, vary, increase, or reduce, the conviction, order, sentence, or adjudication appealed against, or make such other order in the matter, and as to costs to be paid by either party, including the Crown, as to the Court seems just; and may in and by any such order, exercise any power which the Justice or Justices who made the conviction or order might have exercised, and any order so made shall have the same effect and shall be enforced in the same manner as if it had been made by such Justice or Justices.
His Honour, having exercised the same powers as were exercised by the Local Court Magistrate, therefore had the power to confirm, set aside, quash or vary the order as to the Court seemed just. The District Court determines the appeal by way of a hearing de novo: R v Hodder (1986) 33 A Crim R 235. The hearing before His Honour therefore was not, in form, a determination as to his view of the correctness or otherwise of the Magistrate’s decision. Consequently, His Honour erred in expressing views as to the determination by the Lower Court, but at the same time, had the same power as that of the Magistrate to determine the question for himself as to whether there was a power to extend an expired order. His Honour did not purport to do that, although the process of determining that the Learned Magistrate had the power, in substance, determined that the District Court had the power to extend as part of the powers exercised in the appeal hearing.

The question submitted by His Honour deals with a question of His Honour’s finding about the powers of the Learned Magistrate, rather than, as would have been more appropriate, whether His Honour had the power to find that there was a power to extend after expiry of the order. The substance of the issue is the same, the form of question is inappropriate.
I accept the submission put on behalf of the respondents that if both the Learned District Court Judge and the Learned Magistrate had erred, then such error was made within jurisdiction. This was an exercise in determining the Court’s power, not the Court’s jurisdiction: Craig v South Australia (1994-1995) 184 CLR 163, at 177-178.
To test this proposition, if either judicial officer had, in considering the matter, determined that there was no power to extend an expired order that would similarly have been a determination of the power and would have been within each court’s jurisdiction.
I now turn to the question of the power to be exercised. In that respect, it is necessary to look at the entire structure of Part 15A of the Act. Division 2 of Part 15A of the Act gives the Court a general power under s562B of the Act to make orders, on a civil onus, if satisfied that a person complaining has reasonable grounds to fear personal violence, harassment, or molestation and gives the court wide powers to take such action as may be necessary. The proceedings are not criminal in nature.
The court has power under s562BA to make orders by consent, with or without admissions on the part of the defendant. Furthermore, the court has power in s562BB to make an interim order if it appears that it is necessary or appropriate to do so in the circumstances, and such order can be made with or without the presence of the defendant. Such interim order ceases to have effect when an order is made under s562B of the Act.
If made, an order prohibits intimidatory conduct or stalking of the protected person and may impose any number of restrictions, which may include preventing a person from having access to that person’s home. The order is of such duration as may be specified and is for six months if not so specified. Section 562F, which I have previously set out, is a provision for variation and revocation of any order made. There are also provisions for telephone interim orders after hours; for detention of the defendant; and provisions for arrest and the application of the Bail Act 1978.
The Bail Act alone may result in the loss of a presumption in favour of bail in proceedings for breach of an order under Part 15A of the Act.
The making of an order may have very dramatic and substantial consequential effects on the person against whom the order is made. It may add restrictions to private life, employment and may also affect contact with children. Any breach of an order may bring very substantial consequences of a criminal nature.
Although the procedure to obtain an order may not be criminal in nature and the making of an order does not constitute a conviction, it nevertheless is a matter on the criminal record of the person against whom it is made.
I do not consider that it is appropriate to draw any analogy between the cases earlier cited on extensions, or as were referred to in the hearing of the appeal, statutes concerning patents or statutes of limitation or extension under the rules of court. The structure of the Act is such that if an order is about to expire, as happened in this present case, the court has a power to make an interim order to govern any period before a matter can be heard, if there is pressure of court business preventing an immediate hearing.
The decision of the Court of Appeal in Clarke v Bailey (1993) 30 NSWLR 556 is noteworthy as authority for the proposition that even where a limitation Act is fixed by a statute and the legislative purpose is that an order should be made by a certain date, the court cannot make a subsequent order anti-dating an expired limitation period pursuant to the Limitation Act 1969.
The legislative structure of Part 15A of the Act, in its present form or in its prior form, is designed to deter people from carrying out certain inappropriate conduct or harming persons, and to protect people from future harm. It also deals with apprehension of harm. It is, in my view, contrary to the purpose and the sense of the Act to make orders which cover a period that has already passed. There can be no apprehension of violence in respect of a period that has in fact passed. The severe nature of the consequences and the very nature of an apprehended violence order are such that I consider that there is no basis for what is, in fact, the making of a retrospective order by extending an order which has expired.
I consider therefore that both His Honour and His Worship erred in the making of extension orders as there is no power to extend an order retrospectively. I leave aside the question, which it is not necessary to decide here, as to whether an order can be vacated retrospectively.
The proper remedy is to make an application, as happened in this case, within time, and if court business prevents it being dealt with, then an interim order should be made to protect the person until an application for variation under s562F of the Act can be heard and determined.
It seems to me therefore that there is no power to amend the stated case to, in effect, ask a question that would have been appropriate in terms of the power of the District Court. This court, having expressed its view in relation to the power which McDougall LCM purported to exercise, should not answer the question asked in the stated case but should use the power granted by s5B(1) of the Criminal Appeal Act 1912 and make ‘such order … as it thinks fit’, and quash the orders made by McDougall LCM and Davidson DCJ on the basis that both courts exceeded the powers granted to each of those courts under s562F of the Act.
Notwithstanding the error by His Honour and the nature of the question asked of this Court, on the findings by His Honour, if he had been exercising jurisdiction as on a new complaint (which the respondents were entitled to bring), the facts were established before His Honour to have made such an order. It being remembered that this is protective legislation, it seems to me undesirable and indeed dangerous in the light of the earlier findings, to leave this matter to the parties to take out a further order.
As the facts as established clearly supported the making of a new order, and it is a matter of form rather than substance that has defeated the ten year protective order, this Court, in my view, in the exercise of the power granted to it by s5B(1) of the Criminal Appeal Act 1912, should “make any such order … as it thinks fit”. Therefore the order that should be made by this Court is a prospective Apprehended Violence Order dating from today until 21 October 2006, being ten years from the date of the order of McDougall LCM.
It is appropriate therefore that the orders made both by McDougall LCM and Davidson DCJ be quashed. In the light of the findings made by His Honour, which would have based an order made on a new complaint, and in the light of the orders that I propose for this Court, I consider that the costs order of Davidson DCJ should be quashed and that the respondents should have an order in their favour of ninety percent of the costs incurred in the hearing before Davidson DCJ to reflect their substantial success in that hearing, and the ultimate success in obtaining the benefit of the order before this Court.
It seems to me that there should be no order as to the costs of the Local Court proceedings. The assumption made by the Local Court as to its power to adjourn is the fault of neither party, and in any event, costs orders are proposed by this Court in relation to costs of this Court and the District Court which appear to me to appropriately reflect the burden of costs on the parties. Although the appellant has succeeded in demonstrating error on the part of the District Court, the respondents on the other hand will now have the benefit of an order and thus there does not seem to be merit in penalising either party in the Local Court proceedings.
As an order for costs has been sought before this Court, and the appellant having succeeded in demonstrating the error by His Honour, it is therefore appropriate that this court order that the respondents pay the appellant’s costs and as this is an appeal against the decision of a court within the purposes of s6 of the Suitors Fund Act 1951, that the respondents should have a certificate under s6(1) of that Act.
The orders I propose, therefore, are:
That the Court declines to answer the question as asked;
That the order extending the Apprehended Violence Order made by Davidson DCJ be quashed;
That the order extending the Apprehended Violence Order made by McDougall LCM be quashed;
That the application dated 19 March 1996 for variation of the Apprehended Violence Order originally made on 26 October 1994 be dismissed;
That an Apprehended Violence Order, on the terms and conditions set out by Davidson DCJ, have effect from the date of this order until 21 October 2006;
That the costs order made by Davidson DCJ be quashed;
That the appellant pay ninety percent of the respondent’s costs of the District Court appeal;
That the costs order made by McDougall LCM be quashed;
The respondents are to pay the appellant’s cost of this appeal;
The respondents are to have a certificate under s6 of the Suitors Fund Act 1951 as to the costs of this appeal.
AUSTIN J: I agree with Dowd J.

oOo

LAST UPDATED: 20/04/2001