Markham MOORE-McQUILLAN v SA Police No. Scgrg-97-239, Scgrg-97-240 Judgment No. 6215 Number of Pages 5 Criminal Law

[1997] SASC 6215

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DUGGAN, J

Criminal law - jurisdiction, practice and procedure - appellant convicted of contravening a restraining order - appeal against both conviction and the making of the restraining order - discussion as to appropriate procedure to determine whether a restraining order made ex parte should be confirmed pursuant to s99C of the Summary Procedure Act, 1921 - held that it was necessary for the magistrate to consider whether the statutory requirements for the making of the order had been fulfilled irresepctive of the consent of the defendant to the making of an order - held further that the statutory declarations upon which the application was based should have been made available to the appellant. Brunsgard v Daire (1984) 36 SASR 391; Quicksilver v Liddy S3232 24 January, 1992, discussed.

ADELAIDE, 7 April, 22 May 1997 (hearing), 24 June 1997 (decision)

#DATE 24:6:1997

#ADD 4:7:1997

Appearances:

Appellant:

In Person

Respondent:

Counsel: Ms L Makiv

Solicitors: Crown Solicitor (SA)

Order: application allowed.

DUGGAN J

The appellant was convicted in the Adelaide Magistrates Court on three charges of contravening a restraining order, a charge of resisting a police officer in the execution of his duty and a further charge of assaulting the same police officer in the execution of his duty. It is alleged that the charges involving the police officer arose out of the appellant's arrest on the charge of contravening the restraining order. He was sentenced to a global penalty of imprisonment for three months and two weeks but the sentence was suspended when he entered into a bond to be of good behaviour for three years. The appellant pleaded guilty to the charges but he has appealed against both conviction and sentence. He has also appealed against the confirmation of the original restraining order. The appellant was unrepresented at the hearing of the appeal. It is necessary for him to obtain an extension of time within which to appeal, but I will deal with that issue later in these reasons.

The appellant's initial submissions to me raised some concern in my mind about the circumstances in which the original restraining order was confirmed and I decided to deal first with the appeal against that order. The application for a restraining order was made on a complaint dated 21st September 1995. It alleged that there was a reasonable apprehension that, unless restrained, the appellant would behave in an intimidating and offensive manner towards seven persons named in the complaint.

According to the material before me the appellant made a claim for workers' compensation when he alleged that he injured his knee in about September 1990. The appellant was paid weekly income maintenance but the Workcover Corporation commenced an investigation into the matter when it was informed by the appellant's former wife that the claim was fraudulent. Several employees of Workcover complained that the appellant behaved in a threatening and abusive manner towards them after the investigation was launched. This led to the laying of the complaint to which I have referred. I should also mention that a further complaint was made in relation to employees of the solicitors for Workcover, but the relevant complaint and restraining order for present purposes are those which concern the Workcover employees.

A restraining order was made against the appellant at an ex parte hearing on 21st September 1995. The appellant was served with the order on the following day and, in due course, a confirmation hearing was fixed for 10th October 1995. The appellant was not represented by counsel at the hearing, but appeared in person. The restraining order was confirmed by the learned magistrate.

Evidence was led before me concerning the events which took place at the confirmation hearing. The appellant gave evidence at the hearing of the appeal and the respondent called Sergeant Ford who is attached to the Police Prosecution Section. I also received a report from the magistrate. The evidence of the appellant conflicts with that of Sergeant Ford on certain matters. I have no hesitation in preferring the evidence of Sergeant Ford on those issues. I found him to be an accurate and truthful witness who tape recorded as many of the conversations that he had with the appellant as was practicable. He also has a reasonable memory of the events which took place at the hearing. On the other hand I found that the appellant gave clear indications of exaggerating the facts in his favour. Nevertheless both witnesses agreed on the occurrence of those events which gave rise to my original concern.

The application for a restraining order was based on the statutory declarations of a number of Workcover employees. The circumstances of the alleged threatening and abusive language by the appellant was set out in the declarations.

Sergeant Ford stated in evidence that on the day before the confirmation hearing the appellant rang him and said that he was entitled to a copy of the declarations. Sergeant Ford agreed with him. Sergeant Ford said he was about to make some arrangements for the delivery of the declarations when the appellant became loud and abusive. Eventually Sergeant Ford terminated the conversation by hanging up. Sergeant Ford then stated quite candidly that he forgot to make the necessary arrangements for the appellant to receive the declarations, although that had been his intention.

According to Sergeant Ford the magistrate convened a pre-trial conference in the matter on the following day. The appellant was unrepresented. In the course of the discussion which ensued Sergeant Ford summarised the allegations. There is no record of the proceedings. Sergeant Ford said he gave a comprehensive summary but there is no evidence as to what he actually said. Sergeant Ford gave evidence that during the proceedings the appellant asked for copies of the declarations. The magistrate asked Sergeant Ford to provide the declarations to the appellant after the pre-trial conference.

The appellant did not have access to the declarations at the time of the hearing. In fact he did not receive them until February 1997. I do not imply that there was laxity on the part of the police officer. I accept Sergeant Ford's evidence that the appellant was very difficult to deal with and that it was necessary for Sergeant Ford to terminate more than one conversation with him. Nevertheless the fact remains that the appellant did not have all the details of what was alleged against him at the time of the hearing. Now that he has received the declarations he says that there is much that he disputes.

According to the appellant's evidence the learned magistrate encouraged him to consent to the restraining order. The appellant claims to have told the magistrate that he opposed the confirmation of the order, but eventually agreed to it after the magistrate requested a Workcover representative who was present at the conference to provide certain documentation to the appellant in relation to the fraud investigation and assured the appellant that he would not lose any of his rights in relation to the litigation concerning the alleged injury if the restraining order was made.

Sergeant Ford confirmed that there was some discussion during the conference about the appellant not losing his rights and that the magistrate asked Mr Newell, for the Workcover Corporation, some questions about this topic. Sergeant Ford said that the appellant complained that if the restraining orders were confirmed the Workcover employees could then harass him, but the magistrate explained that the restraining order worked both ways. The appellant then agreed to the confirmation of the order.

In his report the learned magistrate said that at first the appellant did not consent to the restraining order being confirmed. His Honour's report continues: "I then conducted a pre-trial conference. No evidence was taken in the course of those proceedings. The defendant did not give evidence on oath, albeit a full and frank discussion was held as to the issues in dispute. There is no transcript of the discussion which took place. Whilst the reporting service provides transcript of any evidence taken in the Magistrates Court, it does not prepare a transcript in respect of a pre-trial conference, or indeed of submissions or argument.

In the course of the conference, Mr Moore-McQuillan made it clear that his only objection to the confirmation of the two ex parte restraining orders was that if they were confirmed he would be unable to contact either the WorkCover Corporation or the firm of Stratford & Co. to obtain copies of documents to which he needed access for the purpose of preparing his defence to the charges pursuant to the Workers Rehabilitation and Compensation Act. It was axiomatic that the defendant should have access to any such documents. Quite some time was then spent in obtaining a complete list from Mr Moore-McQuillan of those documents in the hands of either the WorkCover Corporation or its solicitors, copies of which were needed by Mr Moore-McQuillan. Although Mr Newell contended that most, if not all, of these documents had already been provided to Mr Moore-McQuillan, at my request he agreed to provide a copy of each and every document which Mr Moore-McQuillan sought. Upon that undertaking being given, Mr Moore-McQuillan was inclined to consent to the confirmation of the two orders. I remained concerned as to whether the confirmation of the orders might inappropriately interfere with the lawful pursuit by Mr Moore-McQuillan of any rights under the WorkCover Act. I enquired of Mr Newell whether Mr Moore-McQuillan was in receipt of ongoing benefits and whether, as a consequence, he might have proper reason either to communicate with staff of the WorkCover Corporation or with Stratford & Co. solicitors. Mr Newell, who was not fully familiar with the file, asked whether Mr Millikan, an officer of WorkCover who was present in court, might answer my question. It is not correct that I "made Mr Millikan stand up and asked him ...". Mr Millikan informed me that the WorkCover Corporation had delegated to an insurance company the management of Mr Moore-McQuillan's ongoing claims. Mr Moore-McQuillan agreed that that was so and all parties agreed that there was no need for Mr Moore-McQuillan to contact either the staff of the WorkCover Corporation or of Stratford & Co. solicitors."

His Honour said that the appellant then consented to the restraining order being confirmed.

Section 99C of the Summary Procedure Act 1921 deals with the confirmation of restraining orders made ex parte. In so far as it is relevant to the present case the section provides as follows: "(1) A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.

(2) A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case - (a) the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed; and (b) the order is not effective after the conclusion of the hearing to which the defendant is summoned unless - (i) the defendant does not appear at that hearing in obedience to the summons; or (ii) the Court, having considered the evidence of the defendant and any other evidence adduced by the defendant, confirms the order.

(3) The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case - (a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and (b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order."

Section 99(1) provides that a court cannot make a restraining order unless: "(a) there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and

(b) the Court is satisfied that the making of the order is appropriate in the circumstances." Irrespective of the attitude which a defendant might adopt to the complaint, the court must conduct its own assessment of the material before it in order to reach a conclusion on the matters set out above. The question for the court is not simply whether the appellant has been involved in certain conduct in the past, but whether, on the material before the court, there is a reasonable apprehension that the defendant, unless restrained, will behave in the manner set out in s99(1) and the making of the order is appropriate in all the circumstances. (cf Brunsgard v Daire (1984) 36 SASR 391 at 395).

The court can have regard to a concession by the defence that the evidence or other material before the court is not disputed. However the court cannot make a "consent order" without regard to the evidence and the test provided for in the section. On the material before me the appellant was not asked whether he disputed the facts contained in Sergeant Ford's summary. The absence of a transcript of proceedings renders it difficult to determine precisely what happened, but it does appear that the order was made after the appellant's concerns about the effect of the order had been put at rest and he agreed not to contest the application. There is no material before me which establishes that the learned magistrate made an independent assessment of the allegations in the declarations and turned his mind to the test laid down in s99.

But the difficulties arising from the confirmation proceedings go further. As I have pointed out the appellant requested copies of the statutory declarations both before and after his appearance at those proceedings. They were not given to him. He has given evidence before me that he disputes most of the assertions made in the declarations. In my view he was entitled to precise details of the allegations made by any deponent, both as a matter of procedural fairness (Brunsgard v Daire supra at 396) and by reason of the provisions of the Act.

The defendant may require a deponent to appear personally at the proceedings for confirmation to give evidence of the matters referred to in the affidavit. (S99C(3)). If the deponent does not appear after such a request is made by the defendant the court cannot act on the evidence contained in the affidavit. In my view the failure in the present case to provide the declarations in response to the appellant's requests prevented him from making a proper assessment as to whether he should exercise the right to which I have referred. I reject the respondent's argument that it was sufficient for a summary of the declarations to be read out in court. The procedure which follows a plea of guilty to an offence cannot be applied to confirmation proceedings. If the court is to make a confirmation order based on affidavits or statutory declarations they should be tendered in evidence and their contents made available to the defendant.

I am conscious of the pressures resulting from the heavy lists in the magistrates' court and the desirability of resolving matters through pre-trial conference procedures if that is at all possible. I am also quite confident that the learned magistrate attempted to resolve the matter in a fair and reasonable manner. Nevertheless it is my view that the procedure did not comply with the requirements of the Act. As it pointed out in Brunsgard v Daire (supra) and Quicksilver v Liddy (S3232 24 January, 1992), the making of a restraining order places important restrictions on a defendant and breach of it may be punished by a term of imprisonment. It is essential that the hearing which leads to such an order being made is conducted in accordance with the requirements of the legislation and that it is focused on the matters which have to be established before the order sought can be made or confirmed.

I have referred to the fact that an extension of time within which to appeal is required. The period of delay before the filing of the notice of appeal is lengthy. The notice was not filed until 18th February 1997. However the appellant was unrepresented during this period and he made a number of attempts to obtain information about the allegations made against him during the period leading up to the filing of the notice. I have pointed out that he did not receive the declarations until February 1997. In the exceptional circumstances of the case I think it is appropriate to grant the application for an extension of time.

The time within which to appeal will be extended to the date on which the notice of appeal was filed. The appeal will be allowed and the confirmation of the restraining order set aside. I will hear the parties as to what further orders should be made and as to the consequences which my ruling has for the convictions which have been recorded against the appellant.