JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JONES -v- PENNUTO [2020] WASC 416
CORAM: TOTTLE J
HEARD: 15 JUNE 2020 & FURTHER SUBMISSIONS ON 29 JUNE 2020 & 14 SEPTEMBER 2020
DELIVERED : 19 NOVEMBER 2020
FILE NO/S: SJA 1124 of 2019
BETWEEN: VERA LYNN JONES
Appellant
AND
TARYN PENNUTO
Respondent
FILE NO/S: SJA 1126 of 2019
BETWEEN: VERA LYNN JONES
Appellant
AND
THOMAS PROCTOR
First Respondent
JOHN WINTER
Second Respondent
ON APPEAL FROM:
For File No: SJA 1124 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R HUSTON
File Number : EX 38 of 2019
For File No: SJA 1126 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J SCUTT
File Number : CA 707 of 2018, CA 1098 of 2018
Catchwords:
Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant convicted of breach of violence restraining order in breach of s 61(1) of the Restraining Orders Act 1997 (WA) - Where underlying violence restraining order subsequently set aside for invalidity - Whether violence restraining order had to be obeyed until set aside - Whether conviction should be set aside
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 5, s 6, s 8, s 10
Magistrates Court Act 2004 (WA), s 36
Restraining Orders Act 1997 (WA), s 43, s 47, s 48, s 49, s 61, s 64
Result:
Extension of time to bring the appeal granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
SJA 1124 of 2019
Counsel:
| Appellant | : | K Gorski |
| Respondent | : | J F Bennett |
Solicitors:
| Appellant | : | Legal Aid Perth - Criminal Appeals |
| Respondent | : | State Solicitor for Western Australia |
SJA 1126 of 2019
Counsel:
| Appellant | : | K Gorski |
| First Respondent | : | J F Bennett |
| Second Respondent | : | J F Bennett |
Solicitors:
| Appellant | : | Legal Aid Perth - Criminal Appeals |
| First Respondent | : | State Solicitor for Western Australia |
| Second Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Appleyard v Walker [2009] WASCA 141
Bindai v Armstrong [2016] WASC 341
Bindai v Jugarie [2016] WADC 68
Boddington v British Transport Police [1999] 2 AC 143
Borsa v The Queen [2003] WASCA 254
Director of Public Prosecutions v Edwards [2012] VSCA 293
J & F Stone Lighting & Radio Ltd v Levitt [1947] AC 209
Jadwan v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
Jones v Johnston [No 2] [2020] WASC 190
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Pelechowski v Registrar of the NSW Court of Appeal [1999] HCA 19; (1999) 198 CLR 435
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Gregory [2002] NSWCCA 199
Re Magistrate R Johnston; Ex parte Jones [2020] WASC 107
Russell v RCR Tomilinson [No 2] [2016]…
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- AGLC
- Jones v Pennuto [2020] WASC 416
- Case
- [2020] WASC 416
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the violence restraining order had to be obeyed until set aside and whether the conviction should be set aside due to the jurisdictional error. The appellant argued that the convictions constituted a miscarriage of justice as the Extended VRO was made without jurisdiction and had no legal force, thereby rendering her guilty pleas invalid. The court considered whether the jurisdictional error warranted setting aside the convictions and if the procedural fairness issue warranted separate consideration.
The court found that the magistrate's error in proceeding without sufficient evidence of service of the summons constituted a jurisdictional error. This error led to the invalidity of the Extended VRO, and consequently, the appellant's convictions were deemed to be a miscarriage of justice. The appeal was allowed, and the convictions were set aside. The court ordered the setting aside of the order of 15 May 2020, which had given effect to the reasons for the court's decision, in accordance with s 36(4) of the Magistrates Court Act 2004 (WA).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
At the hearing of the application to vary the restraining order on 29 September 2017, the magistrate proceeded to hear the application on the basis that the appellant had been served with a summons to attend the hearing, but there was no evidence before the court upon which the magistrate could have been satisfied of this fact. On this basis it was held the magistrate committed a jurisdictional error.[3] The order of 15 May 2020 giving effect to the court's reasons was expressed as follows:Pursuant to s 36(4) of the Magistrates Court Act 2004 (WA) the order of Magistrate Raelene Johnston dated 29 September 2017 extending restraining order CA RO 97 of 2015 be set aside.[3] Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [23] - [24] (Gummow ACJ & Kiefel J); R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 432 (Latham CJ). The grounds of appeal on which each application is based are identical. They are that the appellant's convictions on her own pleas each constitute a miscarriage of justice as the appellant could not in law have been guilty of the offence of breaching the Extended VRO.[4] The grounds are supported by particulars which assert the Extended Order was made without power or jurisdiction. The particulars also allege that the appellant was denied procedural fairness as she was not afforded the right to be heard in relation to the application for the Extended Order. In the course of the hearing of the application counsel for the appellant said that the denial of procedural fairness particular should more properly be treated as a separate ground of appeal but ultimately nothing turns on this.[4] See Vella v The State of Western Australia [2006] WASCA 129 [26]. The appellant submits she could not in law have been guilty of the offences of breaching the Extended VRO because it was not made within jurisdiction and had no legal force. She contends this is recognised as a circumstance which may result in a plea of guilty being set aside on appeal.[5] [5] Borsa v The Queen [2003] WASCA 254 [20]; Vella v The State of Western Australia [26]. In support of her submission that the Extended VRO had no legal force the appellant relied on the observations made by Gageler J in The State of New South Wales v Kable [No 2],[6] and the decision of Martino J in Bindai v Armstrong.[7]The appellant contends that the convictions constitute miscarriages of justice and she is entitled to appeal on that basis: s 8(1)(b) of the Criminal Appeals Act 2004 (WA). [6] The State of New South Wales v Kable [No 2] [2013] HCA 26; (2013) 252 CLR 118 [56].[7] Bindai v Armstrong [2016] WASC 341 [17], [28] and [29]. In support of her procedural fairness contention the appellant referred to the decision of Bindai v Jugarie,[8] a decision of Bowden DCJ allowing an appeal in respect of a decision to grant a restraining order on the basis that the appellant had not received notice of the application. Bowden DCJ considered the fact that magistrate had made the order without the appellant having received notice of the application was an error made by the magistrate within jurisdiction.[8] Bindai v Jugarie [2016] WADC 68.