Mark Rex Madison v SA Police No. SCGRG 97/230 Judgment No. 6113 Number of Pages 4 Criminal Law Restraining Order

[1997] SASC 6113

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DOYCLE, CJ

Criminal law - restraining order - appeal against restraining order - appellant denied reasonable opportunity to be heard before varying the order - unreasonable force in disciplining children - magistrate conducting irregular and inappropriate experiment. Children's Protection Act, 1993; Summary Procedure Act, 1921, referred to.

ADELAIDE, 7 April 1997 (hearing and decision)

#DATE 7:4:1997

#ADD 28:4:1997

Counsel for appellant: Mr J S Kyrimis

Solicitors for appellant: Herman Bersee

Counsel for respondent: Ms A Andrews

Solicitors for respondent: DPP (SA)

Order: appeal allowed.

DOYLE CJ

1. This is an appeal against an order made by the Magistrates' Court at Mount Gambier on 31 August 1994. The order made varied a restraining order made by that court on 10 June 1994. The original order restrained the appellant Mr Madison in relation to his conduct towards his wife and his four children. The order made on 31 August 1994 is as follows: "1. The defendant be restrained from behaving in a provocative or offensive manner towards Rebecca Iris Madison.

2. The defendant be restrained from assaulting or threatening Rebecca Iris Madison.

3. The defendant is further restrained from assaulting or physically disciplining any of his children, that is Sarah Madison, Ruth Madison, Miriam Madison and Naomi Madison.

4. The defendant is further restrained from having in his possession any item similar to or admitted to be a rod of correction.

Firearms order: That any firearm in the possession of the defendant be surrendered to the police authorities provided that any firearms surrendered pursuant to this order be returned to the defendant in the event that the summary protection order is not confirmed. But any firearm licence held by the defendant be suspended pending the confirmation of the summary protection order. By virtue of this order the police are given authority to enter any premises occupied by the defendant from time to time in order to seize any firearms and the firearm licence in his possession.

5. Matter to be referred to the Director-General of Family and Community Services.

6. Exhibit P3 forfeited to the Crown.

7. Defendant to pay $150 costs to Mount Gambier prosecution within a period of 4 months."

2. The appeal lodged on 29 January 1997 is well and truly out of time. In his affidavit, the appellant gives reasons for the delay. He was unrepresented at the hearing and did not know whether he could appeal or how to do so. In March 1995, 7 months after the order, the Family Court gave him custody of his children subject, among other things to him not using "unreasonable force in disciplining any of the said children."

3. He says that he thought that the Family Court order would prevail. Later he wanted to apply for a variation of the restraining order, but could not get legal aid. Further Family Court proceedings are now contemplated relating to custody. He has also been charged with a breach of the restraining order, the alleged breach being the possession of a rod of correction. That charge has not yet been heard. He now has money and can pay for legal representation.

4. In view of his personal circumstances and with considerable hesitation, I propose to extend the time for the institution of the appeal to 29 January 1997. I accept that the appellant was unaware of his position. I am influenced by the fact that the order is, in any event, open to variation and by the fact of the later Family Court orders. There is much to be said for trying to resolve this matter now. But for that, I would have refused an extension of time. The case for an extension is not a strong one. However, as I have said, I propose to extend the time as sought in the interests of justice.

5. The first complaint made is that the magistrate had no jurisdiction to make an order other than an order confirming or not confirming the earlier order. The original order was made in the absence of the appellant. Accordingly, under s.99C of the Summary Procedure Act it was necessary to summon the appellant to a further hearing at which the Magistrates Court was required to consider whether the order should be confirmed.

6. The appellant was so summoned. The hearing on 31 August appears to have been the hearing to which he was summoned. The magistrate's findings suggest that he did not direct his mind to the distinction between confirming the order made in the defendant's absence, under s.99C, and a variation order under s.99F. However, his findings can be read as dealing with both issues and I consider that he had power to do so.

7. There is no reason why confirmation and variation cannot be considered together as long as the distinction is not overlooked. The magistrate should, however, have distinguished between the two processes. He should have warned the appellant that he was considering a variation. The distinction between the two steps should have been made clear. The transcript does not record that at any stage the distinction was drawn.

8. Moreover, the magistrate was required by s.99F(3) of the Summary Procedure Act to allow the appellant a reasonable opportunity to be heard before varying the order. As best I can tell from the transcript, the appellant was never informed that a variation was under consideration. The appellant says that he was not so warned.

9. Therefore, although, in my opinion, the magistrate was not limited to confirming or not confirming the order, there is a real risk that the appellant was denied a reasonable opportunity to deal with the possible variation of the order. For those reasons, I consider that the exercise of the magistrate's powers miscarried. I consider that in the interests of all parties, spouses and children, I should endeavour to resolve this matter now on the evidence before the magistrate. While a fresh hearing would be preferable from some points of view, matters of costs and efficiency persuade me to try to make that unnecessary. It remains, of course, open to any of the parties to make application to the magistrates court for a further hearing.

10. I therefore proceed accepting the substance of the magistrate's findings which were to the effect that the appellant had directed violence towards his family, warranting the making of an order. The magistrate accepted the substance of Mrs Madison's evidence. It was appropriate for him to confirm the order first made as he clearly intended to do.

11. On those findings, it was therefore appropriate to confirm that original order and, subject to a reasonable opportunity to be heard, which I have now given the appellant, to vary the order.

12. As I do not propose to vary orders 1 and 2 relating to the wife of the appellant.

13. I consider that the order restraining him from "physically disciplining" his children should not, in any event, have been made. The scope of such an order is quite unclear. It could extend to an attempt merely to restrain a child from some wrongdoing, such as hitting one of the child's own sisters. It would prevent a smack with the hand.

14. In my opinion, the order is undesirably uncertain and undesirably wide. In view of the terms of the Family Court order of 14 March 1995, of which I should say in fairness to the magistrate, he could not have known at the time, I propose to vary this order to make it provide that the defendant be restrained from using any unreasonable force in disciplining any of his children. In that way, the order will be made to conform more closely with the Family Court order and with the original order.

15. I also propose to set aside the order that the appellant not have in his possession any item similar to a rod of correction. I mention that the rod of correction is a piece of wood, flattened, with some Biblical references written on it. For religious reasons, the appellant will not smack his children with his hand.

16. In my opinion, the order made is undesirably uncertain in its scope, quite apart from the problem that notice of the proposed variation was not given to the defendant. The real issue is the treatment of the children, not the possession of an implement that could be used to harm them. There are many such implements to be found in any home such as wooden spoons and I do not regard the so-called rod of correction as so dangerous a piece of equipment, for example, such as a firearm, that the defendant should not be allowed such an item.

17. I consider that the restraint upon the use of unreasonable force, coupled with the powers available to the Family Court and under the Children'sProtection Act, provide adequate protection.

18. It follows that the order in para.6 for forfeiture of Exhibit P3 should be set aside and that that item should be returned to the appellant.

19. It is also necessary to make a firearms order under the Act. The appellant had two firearms which I am informed have already been handed to the police. I will make an order relating to them and to the defendant's licence, the latter being an order required by s.99D(2) of the Act.

20. It is not clear whether I have power to order compensation be paid to the defendant for the confiscation of the firearms and so I make no order. However, I make it clear that it is not my intention to deprive the appellant of compensation for the firearms, if he is otherwise entitled to it.

21. Another complaint relates to the fact that according to his reasons, the magistrate performed an inappropriate experiment in relation to the use of the rod of correction, Exhibit P3. The magistrate said: "I can say that during the afternoon break, I had cause to give my clerk a tap in the form of a light backhand tap on her backside (with her consent) and she complained that it hurt. I can imagine how it would hurt when an instrument is used on the buttocks of a child."

22. That is apparently a reference to the use of Exhibit P3. In my opinion, it was not permissible for the magistrate to rely upon such evidence. To begin with, the evidence, if one can call it evidence, was taken in the absence of the parties. Moreover, the evidence was entirely subjective, depending upon the reaction of the magistrate's clerk who, for obvious reasons, was not able to be questioned by either of the parties. The procedure followed by the magistrate was, in my opinion, irregular and inappropriate and should never have occurred. However, as I have discharged that part of the order, nothing flows from that.

23. I leave standing paras.5 and 7 of the order of 31 August. I request the Crown Solicitor to bring to the attention of the chief executive officer of the Department of Family and Community Services, the terms of the varied order and I ask the Crown Solicitor to request the chief executive officer to consider whether, in the light of the passage of time, or the variation of the order, there is any need to consider exercising the statutory powers available under s.19 of the Children's Protection Act.

24. Accordingly, I make the following orders: 1. Extend to 29 January 1997 the time for the institution of the appeal in these proceedings.

2. Appeal allowed.

3. Set aside para.3 of the order of the Magistrates Court of 31 August 1994.

Substitute for that paragraph an order as follows: "3. The defendant is restrained from using unreasonable force in disciplining the children Sarash Madison, Ruth Madison, Miriam Madison and Naomi Madison."

5. Set aside paras.4 and 6 of the order.

6. Substitute for para.4 an order as follows: "4. Order that the defendant's Bentley 12 gauge pump action shotgun and .22 Ruger semi-automatic rifle, being the firearms already surrendered by the defendant to the police, be confiscated. Order that the defendant's licence under the Firearms Act be cancelled and, if still in the defendant's possession, delivered up to the Registrar of Firearms."

7. Order that the respondent pay the appellant's costs of the appeal fixed at $150.