Kancheff v Police No. Scciv-03-1682

KANCHEFF v POLICE
[2004] SASC 46
Magistrates Appeal: Criminal

PERRY J. The appellant appeals against his conviction in the Magistrates Court sitting at Adelaide on a charge that on 26 February 2002 at Gawler South he contravened a restraining order imposed in the Elizabeth Magistrates Court on 19 October 1999, contrary to s 15 of the Domestic Violence Act 1994.
The appellant pleaded not guilty.
After the conclusion of the evidence, the presiding magistrate found the charge proved. He entered a conviction, following which he released the appellant on a three year good behaviour bond.
The appeal is against the conviction only.
The appellant appeared in person, both in the court below and on the hearing of the appeal.
The restraining order against the appellant made on 19 October 1999, the breach of which was the subject of the complaint, was in the following terms:
“That the [appellant]:
‘1.Be restrained from being on premises at which Karen Margaret Duncis may from time to time reside, work or frequent.
2.From contacting or communicating directly or indirectly, whether in person, by telephone, in writing or otherwise, with Karen Margaret Duncis or Ryan Wayne Duncis.
3.From assaulting, harassing, threatening or intimating [sic] Karen Margaret Duncis or Ryan Wayne Duncis.
4.That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm’.”
It appears that Karen Margaret Duncis, the person in whose favour the restraining order was made, had been living in the appellant’s house at the relevant time, although on the hearing of the appeal the appellant denied that he was at that time in a relationship with her. He acknowledged, however, that Ms Duncis was formerly in business with him, and following the break up of her marriage she came to stay with him.
The evidence did not establish the circumstances in which the restraining order was made.
Be that as it may, Ms Duncis gave evidence on the hearing of the complaint. She said that she was at work in her shop when she saw the appellant pull up in a van. She noticed a young woman passenger, later identified as Ms Jennifer Weltner, who got out of the van and entered the shop. She said that she introduced herself as the appellant’s fiancée and asked if they could talk. Ms Duncis said that she did not think that that was a very good idea but eventually she yielded to the suggestion, and they sat down and talked together.
In the meantime, Ms Duncis had rung the police but they had not arrived at the stage when she started to talk to the young woman. Ms Duncis’s evidence was”
“I asked why she’d come in and she said she believed the order was a harsh sentence given it was on one incident. I said to her it wasn’t over one incident and she became aware that there was a bigger story than she believed.”
Later in the conversation, Ms Weltner said that she had come to ask Ms Duncis “to have the order lifted”. She said that “Gavin [the appellant] was unable to get on with his life and found it hard to get employment and hold down jobs”.
Ms Duncis went on:
“She talked at quite a length at getting the order lifted, she just believed it was a harsh order over one incident. ...”
After the conversation had proceeded for about five minutes, a police officer arrived. The discussion between the two women then broke off. Ms Weltner accompanied the police officer to the police station. By this time the appellant had driven off and was no longer seen to be in the vicinity of the shop.
Ms Weltner was called to give evidence on behalf of the complainant. I was informed on the hearing of the appeal by Ms Lee-Justine, who appeared as counsel for the respondent, that Ms Weltner did not come up to proof and came close to being the subject of an application to have her declared a hostile witness.
Normally the court on appeal should not be told of such a circumstance, but one of the grounds of appeal in this matter is that:
“The prosecution failed to provide full discovery .... through the trial re:
(a)Witness Weltner.”
The appellant complained during the course of argument on the hearing of the appeal that “.. the statement from Ms Weltner provided by the prosecution discovery [sic] was not the same document they presented in court”.
If I understood him correctly, he was complaining that she had changed her account of the matter between giving a statement to the police and her evidence in court.
Ms Weltner’s statement to the police was never tendered in evidence, and I explained to the appellant that I could only proceed on the basis of the transcript of her evidence given in court. However, I understood from Ms Lee-Justine that in any event such departures as there were by Ms Weltner when giving her evidence, as opposed to what she said in her statement, were in favour of the appellant.
It follows that there is nothing in that point.
The substantial argument raised by the appeal is as to whether or not the evidence was sufficient to make out the charge.
The essence of the complainant’s case was that Ms Weltner’s approach to Ms Duncis was at the instigation of the appellant and that it amounted to an indirect communication with Ms Duncis which operated in breach of paragraph 2 of the restraining order.
The evidence established, and indeed it was conceded by the appellant, that he drove Ms Weltner to the shop and dropped her off. Ms Weltner admitted in her evidence that she had personally spoken to the appellant about the matter. She said in her evidence in chief:
“I spoke to him about what I wanted to ask Karen myself.”
When asked if she was aware of the terms of the restraining order she said:
“I was aware that Gavin was not to be anywhere on any premises with Karen.”
She further admitted that before getting out of the car and after it had stopped to let her out, she spoke with the appellant. She said in evidence that she was “[j]ust going through what I was going to ask Karen”. She said:
“All I wanted to know from Karen was why she wanted the DVO still in place, why she wouldn’t want - why she wouldn’t lift the DVO, what were her reasons for it.”
She said that she believed that the order was not necessary.
Elsewhere she said:
“I have had in depth conversations with Gavin [the appellant] over it [the restraining order] .....”
Part of the prosecution case was a record of an interview conducted between the investigating police and the appellant on 10 April 2002.
In the course of the interview, the appellant said that he believed that Ms Weltner wanted to speak to Karen Duncis “... to find out for herself why Karen was being like she is”.
He admitted to dropping Ms Weltner off at Ms Duncis’s shop on the day in question.
The prosecution also called Jeannine Kastelyn, a child care worker who had been known to the appellant for about 20 years, as a personal friend.
On the day of the offence, she recalled that the appellant had called on her at her home in the afternoon. He said that he had dropped his “fiancée” off at the Gawler florist [Ms Duncis’s shop]:
“... because she was going to see Karen the lady who worked there in regards to his - I believe it’s an AVO which is - I’ve been explained it’s a restraining order now, not an AVO, but yes he had dropped her off there. He had apparently parked out the front and dropped her off so she could go and see Karen ......”
After Ms Kastelyn had given her evidence, the magistrate permitted the prosecutor to recall Ms Weltner and put to her the contents of the police officer’s notebook in which Ms Weltner had initialled a page which purported to record that she had said that:
“Gavin [the appellant] asked if I could speak to Karen and try to lift [the] restraining order and find out what her reasons were for putting it on. I would say that Gavin is aware that he cannot contact Karen but I am not sure if he knows he can’t communicate with her through me.”
When questioned about that statement, she said that it had been “twisted” and that “Gavin did not ask me to go there”.
The appellant gave evidence in his own defence. He said in the course of his evidence:
“And all she [Ms Weltner] wanted to do was to face Karen, see it in her eyes, whether she thought Karen was truthful ... I did tell her if she wants to find out herself, do it for herself.”
In cross-examination he was questioned to the following effect:
“Q.When you said ‘if you want to know anything about it go and ask her’, do you agree that that’s an invitation to Ms Weltner to go and speak with Ms Duncis.
A.No, it’s just a suggestion, that’s all, not an invitation, a suggestion.
Q.You agree that that suggestion may in fact be taken up by that person.
A.In truth, yes. I hoped it would be and it would put an end to my differences with Jenny about Karen in truth.
Q.Do you agree or disagree that as a direct result of what you said, contact was made.
A.As a result?
Q.Yes.
A.Yes.
Q.Do you agree that you assisted the person who contacted Ms Duncis to get to the place where she was at.
A.Yes.
Q.Did you intend to facilitate contact with Ms Duncis.
A.No.”
Later there appears the following passage:
Q.And you intended to drop off Ms Weltner at the shop.
A.Yes.
Q.And you knew that she was going to contact Karen.
A.Yes.
Q.That’s -
A.Sorry, I’d like to retract that answer. I knew if Karen was there she would have contacted her. I had no idea if Karen was there.”
The trial magistrate gave an ex tempore judgment after the conclusion of the evidence. His reasons for judgment are as follows:
“The evidence before me suggests beyond reasonable doubt the following things; firstly, that the defendant wanted the restraint order removed. Secondly, he knew why Ms Wiltner (sic) was going to the premises in question and he had an expectation that she would be speaking to the victim in this matter. He further agrees that as a result of his suggestion that if she wanted to find out further information she should contact Karen direct. That by inference was suggesting that was envisaged. Further, the defendant facilitated the indirect contact through Ms Wiltner when clearly she could have made independent enquiries if that was really her intention. I also find based on the record of interview that Mr Kancheff turned his mind to the fact that it was inappropriate that he deliver her to the alleged’ victim’s premises in that he said, ‘I don’t think I’m allowed to do that’.
In all the circumstances I find that there was an expectation. I also find that there was a request as indicated in the statement or report of a request that Ms Weltner make the attendance and make the enquiry and that was done in full expectation of the defendant. I find beyond reasonable doubt that there has been a breach of the restraint order.”
I have carefully considered whether the findings of fact made by the trial magistrate were properly reached on the evidence before him. In my view, the findings were properly made on that evidence.
In particular, given the evidence of the appellant himself, Ms Weltner called on and spoke to Ms Duncis at his suggestion.
The appellant also conceded that Ms Weltner was concerned that the order should be removed, which, of course, was no doubt a goal which he shared with her.
There is also no doubt that the appellant physically brought Ms Weltner to the premises.
In my view, the appellant was properly convicted on the basis that he had in breach of the restraining order, communicated indirectly with Karen Margaret Duncis.
I would dismiss the appeal.

[2004] SASC 46

2 March 2004