McKenna v Freeman
[2017] TASSC 64
•8 November 2017
[2017] TASSC 64
COURT: SUPREME COURT OF TASMANIA
CITATION: McKenna v Freeman [2017] TASSC 64
PARTIES: McKENNA, Angela Maree
v
FREEMAN, Andrew
LYONS, Jason
FILE NO: 2031/2017
DELIVERED ON: 8 November 2017
DELIVERED AT: Burnie
HEARING DATE: 3 November 2017
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Point not raised below – Collateral challenge to police family violence order not available on hearing of motion.
Justices Act 1959 (Tas), s 107.
Traynor v McCullough [2011] TASSC 41, 218 A Crim R 177; Coppleman v Godfrey [2014] TASSC 60, followed.
Krulow v Glamorgan Spring Bay Council [2013] TASFC 11, 23 Tas R 264, applied.
Aust Dig Magistrates [1346]
REPRESENTATION:
Counsel:
Applicant: In person
Respondents: S Thompson
Solicitors:
Applicant: N/A
Respondents: Director of Public Prosecutions
Judgment Number: [2017] TASSC 64
Number of paragraphs: 11
Serial No 64/2017
File No 2013/2017
ANGELA MAREE McKENNA v ANDREW FREEMAN and JASON LYONS
REASONS FOR JUDGMENT PEARCE J
8 November 2017
Angela McKenna applied under the Justices Act 1959, s 107(6), for an extension of time to file and serve a motion to review findings made by a magistrate, Ms T Jago, on 5 May 2017. The notice to review concerns two separate complaints and challenges the learned magistrate's findings on both complaints. On 3 November 2017 I ordered that the extension for time be allowed for the motion as it concerns the findings on one complaint but not the other. These are the reasons for that order.
On one complaint the applicant was charged with one count of common assault. On a separate complaint the applicant was charged with six counts of breaching a police family violence order made on 15 August 2015. The complaints were heard together on 5 May 2017. The magistrate found the charge of common assault proved and fined the applicant $650 without conviction. As to the complaint alleging breach of a police family violence order, the prosecution tendered no evidence on two counts. One count, which alleged a breach on 25 April 2016, had already been dismissed after the magistrate found there was no case to answer. The magistrate found that one count had not been proved. The remaining two counts, which alleged breaches on 15 March 2016 and 31 March 2016, were both found proved. For those charges the magistrate made an order under the Sentencing Act 1997, s 7(f), adjourning the proceedings against the applicant without conviction for 12 months on her giving an undertaking to not commit an offence punishable by imprisonment during that period.
This application is necessary because the applicant filed a notice to review on 14 July 2017, outside the 21 day time limit imposed by the Justices Act 1959, s 107(3). The application for an extension of time was filed on 9 October 2017. It was heard on 3 November 2017. The applicant appeared unrepresented. I concluded that the motion, as it applies to the magistrate's findings of guilt on the complaint for breaching the police family violence order, has no reasonable chance of success. An extension of time, as it concerns the review of those findings, was refused. I formed a different view about the application as it concerns the challenge to the finding of guilt and sentence on the common assault charge. For that complaint the application was allowed.
I deal first with the motion as it applies to the assault charge. The complaint alleged that the applicant assaulted Serena Anderson on 14 November 2015 by striking her to the face. At the hearing the applicant contended that she acted in self-defence. To succeed in the review, the applicant must establish that, on the evidence before the learned magistrate, her Honour could not as a reasonable person have been satisfied beyond reasonable doubt that the applicant acted unlawfully: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 per Crawford J at [46]; Caccavo v Collins [2014] TASFC 7, 23 Tas R 384; Harriss v Williams-Coates [2017] TASSC 62. To succeed in a challenge to the sentence the applicant must establish that a fine of $650 without conviction was manifestly excessive, or that there was some other error. My assessment is that the applicant's case on both grounds should not, in advance of full argument, be dismissed as so obviously unmeritorious as to be without any reasonable prospect of success. In the documents accompanying the application the applicant contends that she was initially unaware of the time limit, was then mistakenly told by court staff that the limit was 14 days, and that by the time she found time to obtain legal advice and prepare the motion it was out of time. I regard her explanation as not particularly compelling, but the delay is moderate and no specific prejudice is alleged by the respondent. The Justices Act, s 107(6), confers an unfettered discretion which should be exercised according to the interests of justice. The balance of justice favours grant of the extension of time for the motion to review the finding of guilt and the sentence on that charge.
The challenge to the findings of guilt on two charges of breaching the police family violence order involves substantially different considerations. The motion has no reasonable chance of success, and the grant of an extension of time to enable the applicant to pursue it would be an exercise in futility. The police family violence order was made on 15 August 2015 by Sergeant Cameron Little. It recites that Sergeant Little was satisfied that a family violence offence had been committed. The order contains conditions that the applicant not "directly or indirectly threaten, harass, abuse or assault Joshua Kenneth Fraser". Mr Fraser is a person with whom the applicant had been in a significant relationship. The first count the magistrate found proved alleged that the police family violence order was made, that it was in force on 15 March 2016, and that on that day the applicant breached the order by abusing Mr Fraser by text message. The other count which was found proved alleged that the police family violence order was made, that it was in force on 31 March 2016, and that on that day the applicant breached the order by abusing Mr Fraser by text message. At the hearing the applicant did not contend that she had not sent the messages. The evidence established that the messages sent on those days are abusive. The only decision open to the magistrate as a reasonable person was the one she came to, that is to be satisfied beyond reasonable doubt that the applicant had breached the order. The applicant advances a different ground. The ground of the motion is:
"I had the police family violence order placed on me under fabricated circumstances in August 2015, and my statement was never heard in court. I have been charged with breeching [sic] the order, and I waited until the 5th of May 2017 for the matter to be heard in court. The original matter was never heard."
Put simply, the applicant's grievance is that the police family violence order should not have been made by Sergeant Little because there was no sufficient factual basis for making it, and that she should not have been found guilty of breaching it. She says that she had no opportunity to challenge the making of the order and was not able to challenge it before the magistrate. She seeks to do so now by means of this motion. For the following reasons her arguments could not succeed.
The Justices Act, s 107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. The applicant was represented at the hearing by experienced counsel. The magistrate was not asked to consider validity of the police family violence order the applicant was charged with contravening. It cannot now be claimed that the magistrate erred by not doing so. As counsel for the respondent correctly submits, unwitting error is not amenable to review: Traynor v McCullough [2011] TASSC 41, 218 A Crim R 177; Coppleman v Godfrey [2014] TASSC 60. Even if a challenge had been made to the validity of the order, the only course open to the magistrate would have been to reject it. The validity of the order was not open to challenge in the contravention proceedings on grounds not asserting error on the face of the order: Krulow v Glamorgan Spring Bay Council [2013] TASFC 11, 23 Tas R 264. In other words, the order was not open to collateral challenge on the ground that there was no sufficient factual basis for the order. A collateral challenge, so described, is made when the validity of the order is raised in respect of a prosecution where the existence of the order is an element of the offence, but where the purpose of the proceedings is not to review or set aside the order. Determination of whether collateral challenge is available is a task of statutory construction: Krulow v Glamorgan Spring Bay Council (above) at [173] and following, in which the Full Court affirmed the reasoning of Wood J in Krulow v Glamorgan Spring Bay Council [2013] TASSC 33 at [94]. The purpose, scheme and terms of the Family Violence Act 2004 make clear that collateral challenge, perhaps other than for clear invalidity on the face of the order, is not available. That Act is expressed to be an Act to provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence. The safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations: s 3. In s 7 of the Act, "family violence" is defined to include:
"(a) any of the following types of conduct committed by a person, directly or indirectly, against that person's spouse or partner:
(i) assault, including sexual assault;
(ii) threats, coercion, intimidation or verbal abuse;
(iii) abduction;
(iv) stalking within the meaning of section 192 of the Criminal Code;
(v)attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or
(b) any of the following:
(i) economic abuse;
(ii) emotional abuse or intimidation;
(iii)contravening an external family violence order, an interim FVO, an FVO or a PFVO."
Police family violence orders and family violence orders are a means of protecting a person who is or may be affected by family violence. As the name suggests, a police family violence order is made by a police officer. A police officer is empowered to issue a police family violence order to a person if the officer is satisfied that the person has committed, or is likely to commit, a family violence offence: s 14. An order may only be made by a police officer of the rank of sergeant or above, or authorised by the Commissioner of Police: s 14(1). The term "family violence offence" is defined in s4 to mean any offence the commission of which constitutes family violence. Orders are made in circumstances which may be difficult, volatile, contentious and possibly dangerous, and when the judgment and insight of those affected by an order may be impaired by strong emotion. The obvious purpose of an order is that it will have immediate effect and require strict compliance, thereby promoting the object of that Act as expressed in s 3. That factor points against the availability of collateral challenge.
Family violence orders are made by a court. A family violence order remains in force for the period specified by the court or until revoked: s 19. A court may also make an interim family violence order. A person who contravenes a family violence order, a police family violence order or an interim family violence order, as made, varied or extended, is guilty of an offence: s 35(1). Police family violence orders are temporary in nature. Once served, they remain in force for such period, not exceeding 12 months, as may be specified in the order. However, a police family violence order is revoked by the issue and service of a family violence order or interim family violence order in respect of the same parties: s 14(8). Importantly for this case, a police family violence order may be varied, extended or revoked by a court on the application of a police officer, an affected person, the person to whom it is issued or any other person to whom leave is granted, at any time during its operation: s 14(9). The ability to apply to a court, at any time, for revocation of a police family violence order enables a person to whom an order is issued a full opportunity to contend to a magistrate that the order should not have been made and to have it revoked. These provisions point strongly against the availability of collateral challenge. The applicant's contention that she was denied the opportunity to argue that the police family violence order issued to her should not have been made is wrong. That she may have been unaware of her right to apply for revocation, or been advised against such an application, is not to the point.
The third factor which points away from the availability of collateral challenge is s 35(3) of the Family Violence Act. It provides that, in any prosecution for the offence of contravening a family violence order, a police family violence order, or an interim family violence order an allegation in a complaint is evidence that a family violence order, a police family violence order or an interim family violence order has been made against the person charged with the offence, and the order was in force at the time of the alleged contravention. The subsection creates a presumption that the order was validly made. In this case, the complaint alleged that the relevant order was made and in force at the time of the alleged breach.
Before the learned magistrate the applicant, in her defence of the prosecution for breach of the family violence order issued to her on 15 August 2015, did not contend that the order should not have been made and that she could therefore not be guilty of breaching it. Such an argument, had it been made, could not have succeeded. No error of fact or law can be demonstrated on the motion to review the magistrate's findings of guilt for breach of the order on that ground. The motion, to that extent, is bound to fail. For those reasons I ordered that application for an extension of time to file and serve the notice to review the magistrate's determination on complaint 51739/16, the police family violence order breach proceeding, is refused. I ordered that the time for filing and service of the notice to review as it applies to the finding of guilt and sentence on complaint 50040/16, the assault complaint, is extended to 14 July 2017. The result is that the motion to review will be set down for hearing but confined to review of the orders made by the learned magistrate on complaint 50040/16.
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