McKenzie v Picken - [2002] WASCA 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: McKENZIE -v- PICKEN [2002] WASCA 113

CORAM: MURRAY J
ANDERSON J
STEYTLER J

HEARD: 8 APRIL 2002

DELIVERED : 9 MAY 2002

FILE NO/S: SJA 1046 of 2001

BETWEEN: ALAN DONALD McKENZIE
Appellant
AND
KIM MORRIS PICKEN
Respondent

Catchwords:

Violence restraining order - Requirements for grant - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA), s 11, s 12, s 25

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Mr M T S Rennie

Solicitors:

Appellant: Williamson & Co
Respondent: Michael Rennie

Case(s) referred to in judgment(s):

McKenzie v Picken [2001] WASCA 318

Case(s) also cited:

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Rodgers v The Queen (1994) 181 CLR 251

MURRAY J: On 1 August 2000, in the Court of Petty Sessions at Mandurah, the Magistrate, Ms Musk SM, heard three applications for violence restraining orders under the Restraining Orders Act 1997 (WA). The applications were by the appellant and the respondent and his wife. They were neighbours. Her Worship granted two of the applications and made orders in final form on the applications of both the appellant and the respondent against the other of them. Because they were final orders made without specifying any particular period for their operation, and having presumably been served when they were made, by the Act, s 16(1) and (5)(a)(ii) both orders have a duration of two years and will expire on 31 July 2002, about three months from now.
The order made against the appellant prohibits his possession of firearms and prohibits him from holding a firearms licence: s 14. In addition, it prohibits the commission of, or any attempt to commit, a violent personal offence against the respondent. Section 3 of the Act defines the term "violent personal offence" to mean an offence against the person under Pt V of the Criminal Code other than the offences relating to marriage and parental duties and defamation. A violent personal offence is therefore any other offence against a person, ranging from wilful murder to the simple offence of assault, including the sexual offences, threatening behaviour, kidnapping, deprivation of liberty and stalking.
Further, the order prohibits the appellant from causing or attempting to cause damage to the respondent's property. It prohibits him from behaving in an intimidatory or offensive manner towards the respondent or from behaving in a manner likely to lead to a breach of the peace. There is to be no communication or attempt to communicate with the respondent and the appellant is not to enter upon premises where the respondent lives or works. These are all restraints of the kind authorised by the Act, s 13. The nature and purpose of the order is therefore evident from its very terms, reflecting, as they do, the statutory provisions.
Despite the short time which the order has to run, we were told for the appellant that the making of the order in his view wrongly reflected adversely upon his reputation in the community in which he lives. It is argued that it was made without justification under the Act because the incident which gave rise to it was one in which the appellant was the victim of an assault committed upon him by the respondent.
Because the making of the order meant that the appellant was unable to possess under licence a number of firearms, which was an interest of his, we were told that the appellant objected to the incapacity to follow this sporting activity and maintain membership of a gun club. As to this aspect of the matter, by s 14(5), the violence restraining order could have been made against the appellant without precluding him from having possession of a firearm and being licensed to do so, and it is open to the appellant to apply to vary the order so as to achieve that result under Pt V of the Act.
The grounds upon which a violence restraining order may be made, and the matters to be considered by the Court when considering whether to make the order and its terms, are set out respectively in s 11 and s 12 of the Act, as follows:
"11.   Grounds for a violence restraining order
A court may make a violence restraining order if it is satisfied that —
(a)     unless restrained, the respondent is likely to —
(i)commit a violent personal offence against the applicant; or
(ii)behave in a manner that could reasonably be expected to cause the applicant (or if the application is made by another person on behalf of the applicant, that other person) to fear that the respondent will commit such an offence;
and
(b)granting a violence restraining order is appropriate in the circumstances.
12.    Matters to be considered by court
(1)When considering whether to make a violence restraining order and the terms of the order a court is to have regard to —
(a)the need to ensure that the applicant is protected from personal violence;
(b)the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;
(c)the welfare of children who are likely to be affected by the respondent’s behaviour or the operation of the proposed order;
(d)the accommodation needs of the respondent and the applicant;
(e)hardship that may be caused to the respondent if the order is made;
(f)     any family orders;
(g)other current legal proceedings involving the respondent or the applicant;
(h)     any criminal record of the respondent;
(i)any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and
(j)     other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance."
By the use of the word "satisfied" in s 11 and the definition of that word in s 3 to mean "satisfied on the balance of probabilities", the relevant standard of proof is identified. It is clear that these are not criminal proceedings but proceedings in which the Court is directed to the protective terms of the order and the need for it to be made to protect the applicant from personal violence or reasonable fear of such violence. It is to be noted also that pars (a) and (b) of s 11 must both be established. Not only must there be a likelihood that the respondent may commit a violent personal offence against the applicant or behave so as to reasonably cause the applicant to fear the commission of such an offence, but also the granting of a violence restraining order must be found to be appropriate in all the circumstances.
If those preconditions for making a violence restraining order are established, the Court should do so. In my opinion, it has no discretion in those circumstances to refuse to make the order. The word "may" in s 11 confers the power to make the order, not a discretion which may be exercised to decline to do so even though the Court is satisfied about s 11(a) and (b).
The appellant appealed first, by leave, to Scott J. He was unsuccessful. In essence, Scott J upheld the approach taken by the learned Magistrate: McKenzie v Picken [2001] WASCA 318; 19 October 2001. From that decision, by leave granted by Scott J, the appellant brings this appeal.
The facts of the case may be stated shortly, relying upon the evidence led before and the findings of Ms Musk SM. There was evidence of what Scott J described as "a history of acrimony between the appellant and the respondent". That culminated in previous cross‑applications for violence restraining orders which were listed to be heard in the Court of Petty Sessions on 25 May 2000. The parties appear at that time to have been represented by solicitors. The proceedings were settled by mutual undertakings given by one party to the other that they should have no contact with each other, that they should act reasonably towards each other; in other words, the mutual undertakings were of the kind that one often finds expressed in violence restraining orders.
Some three weeks later, on 16 June 2000, the parties met and exchanged abuse. It should be said that the evidence shows that the sort of abusive language used by these parties to each other was violent, aggressive, very insulting and provocative. Apparently Mr and Mrs Picken were inside their house when their small children, who had been playing outside, came in distressed because the appellant had been abusing them. Mr and Mrs Picken went outside and encountered the appellant. The adults commenced to abuse each other. The appellant rolled up his sleeves, took off his glasses and offered to fight the respondent. The respondent turned away and returned inside his house from where he called the police.
The appellant's evidence about that incident, which it appears her Worship did not accept, was that on the contrary, the children who had been playing outside, including his children, came in to his house and complained to him that the respondent was "picking on them". He went out to the front of the house so that his presence would deter any further trouble. The respondent came out and started to abuse him. He returned the abuse and, indeed, did remove his glasses and throw them on the ground at a time when the respondent was inviting him to come into the respondent's front yard and continue the altercation there. It was he, the appellant said, who declined further conflict and went inside.
The next incident of which evidence was given occurred a little over a month later on 24 July 2000. Her Worship appreciated that in respect of that incident, as had been the case in respect of the incident which occurred on 16 June, there was conflicting evidence. The respondent gave evidence first. He said that during the night he was outside smoking a cigarette when dogs in the neighbourhood commenced to bark, including dogs who were kept on a property at the rear of both his property and that of his neighbour, the appellant. He went around to his backyard to see what the problem was. He said the appellant was already there in his own backyard. They saw each other. They traded abuse for no apparent reason. The appellant started it by calling the respondent an "arsehole". The respondent called the appellant a "fat piece of shit" and went to the carport at the side of his house where he armed himself with a hockey stick.
He returned, put the hockey stick up against the fence and then the two men walked on their respective sides of the fence to the front of their homes where, according to the respondent, the appellant, unprovoked, assaulted the respondent by discharging a pepper spray into his face. At this time, the two men were on the grass verge outside the front boundary of their properties. The respondent gave evidence that he was then struck on the head with what seemed to him to be the hockey stick and he then retreated inside his house. The respondent offered no explanation why he had gone out to the front of his property or how the hockey stick came to be in the appellant's possession at that stage. When cross‑examined, he denied striking the appellant with the hockey stick and a star picket, and he denied threatening to kill the appellant. He did agree, however, that during the incident which led to the proceedings on 25 May, he had to be restrained by police officers and he did then threaten to kill the appellant.
The appellant gave evidence that he heard the dogs barking on the property at the rear of his house upon which a Ms Walsh resided. He went out the back with a torch to investigate. The respondent was there "uttering all sorts of profanities at me". The respondent was intoxicated by alcohol. He told the respondent in blunt terms to go back inside his house. The respondent threatened to kill him and commenced to run up his driveway to the front of his property.
Seeing this, the appellant went back into his house, armed himself with the pepper spray and walked out to the front of his property and on to the roadside verge. The respondent was there "screaming abuse at me". The appellant shone the torch into the respondent's face, dazzling him. The respondent told him to drop the torch. He did so, thinking that the respondent wanted to attack him and that if he defended himself with the torch he might cause the respondent some injury.
The respondent retreated briefly only to return armed with the hockey stick. He struck the appellant with such force that the stick broke. The appellant disarmed him and pushed the respondent away from him. The respondent pulled a star picket out of the ground and renewed the attack. The appellant defended himself, disarmed the respondent and finally subdued the respondent by spraying the pepper spray. Some of the spray got on to the appellant's face. By this time the appellant had retreated onto his own property under the force of the attack by the respondent. The two men were finally separated by a neighbour, a Mr Taylor.
Mr Taylor was called. He confirmed that he saw at least some part of the confrontation between the two men. They were abusing each other, but they were not fighting. They were obviously exhausted. He took hold of the appellant and walked him down his driveway to his house. By the time he got back out onto the verge, the respondent was gone.
Ms Walsh was called to give evidence. She went out to the back of her house when her dogs commenced to bark frantically. She took her torch. She heard the appellant and respondent abusing each other from their respective backyards. The respondent appeared to be the aggressor and threatened to kill the appellant. She heard sounds as if of a fight and more abuse but she did not see what occurred.
The learned Magistrate having referred to what occurred on 25 May 2000 and having referred to the incident of 16 June in terms which were consistent with the acceptance of the respondent's evidence about that incident, then made her findings of fact about the incident on 24 July. She found that both parties abused each other and "neither party really backed off then". Her Worship found that both men went inside and armed themselves with the pepper spray and hockey stick before both went to the front of their properties where they met up again.
Her Worship referred to the conflicting evidence about what then occurred. It was, of course, a conflict in profound terms and the only evidence about what occurred was that given respectively by the appellant and the respondent. We were told that the appellant was charged with assault occasioning bodily harm and that following the restraining order proceedings, the learned Magistrate tried that complaint and acquitted the appellant. Given the need to prove that charge beyond reasonable doubt, that is hardly a surprising result.
Her Worship declined in the restraining order proceedings to attempt to resolve the conflict of evidence beyond finding that there was violent contact between the two men. Her Worship said it was unnecessary for her to decide who started the fight, whether someone was provoked or whether someone was defending himself. Her Worship's reasons were given extempore on 1 August 2000.
Having reviewed the evidence and made the findings to which I have referred, her Worship said:
"Now, in this event, unlike the 16th June, the parties did not go back inside. Mr Picken went and got a hockey stick. Mr McKenzie went and got a pepper spray and went out the front. So on the basis of that conduct alone, they were both in a position where they were prepared to arm themselves in those ways, to a certain extent, in case violence broke out. On both accounts, they could have easily gone back inside, cooled down, and not gone out the front. So in my view, in terms of this restraining order legislation, given that that is what started this whole thing, that both parties were prepared to be violent if it was necessary, on the basis of those initial acts, these violence restraining orders should be granted."
Her Worship made it clear that she thought it appropriate to grant violence restraining orders on the application of each party against the other, but not to grant the order sought by Mrs Picken.
The appeal to Scott J was made on the ground that the learned Magistrate erred in declining to resolve whether or not the appellant was acting in self‑defence or had a defence of provocation open to him. As counsel put the argument to us, it was that unless the appellant's account of the fight was rejected, then he was to be seen as the victim of the respondent's aggressive behaviour and no violence restraining order should have been made against him.
Scott J disagreed, holding that the making of a violence restraining order is not "predicated upon the commission of an offence" but upon the Court's satisfaction on the balance of probabilities that the person against whom the application is made was, unless restrained, likely to commit a violent personal offence against the applicant or to behave in a manner that could reasonably be expected to cause the applicant to fear that he would commit such an offence and that it was necessary in the circumstances to grant a violence restraining order.
Scott J pointed out that upon her Worship's findings of fact, both parties had behaved aggressively towards each other over a period of time and finally, on 24 July:
"… either of them could have terminated the altercation had they stayed inside at the time when they went into their respective houses to obtain the weapons which were subsequently used. From the appellant's point of view once he went inside his house he could have phoned the police or indeed stayed inside with his doors locked. The incident may have terminated as did the incident on 16 June. However the appellant chose not to do so. Instead he returned to where he knew, or suspected the respondent would be, armed with the pepper spray."
The appeal to this Court is grounded upon the proposition that in so reasoning, Scott J was guilty of the same error as that made by the learned Magistrate. I disagree. Under the Act, s 11 and s 12, a violence restraining order is to be made when appropriate to protect the applicant from the likelihood of personal violence in future or where there is a need to prevent behaviour on the part of the person against whom the order is proposed to be made which could reasonably be expected to cause the applicant to fear that the person to be restrained will commit some act of personal violence. The appropriate standard of proof, as to which her Worship directed herself in this case, is proof on the balance of probabilities.
Her Worship was entitled to have regard to the history of considerable animosity between these two men. They had been brought on a previous occasion to the door of the court on similar cross‑applications and had then given undertakings to restrain themselves. Within three weeks, as her Worship found, the appellant breached those undertakings by allowing himself to become embroiled in an altercation with the respondent during which he offered to fight him.

On 24 July, the first contact between the two men was apparently quite accidental and yet almost immediately they commenced to trade abuse of an aggressive and insulting or inflammatory kind. Both went into their respective houses or left the scene of their altercation for the express purpose of arming themselves. The appellant could have called a halt at that point, as could the respondent. Neither did so. Both went to the place on their front verge where they met. Clearly each did so for the purpose of carrying on the altercation with the other.
I respectfully agree with Scott J and with her Worship that it matters not who actually started the fight which then ensued on that particular occasion. There was ample evidence, in my opinion, to support the Magistrate's conclusion that, more probably than not, it was likely, "unless a restraining order is in place, that this sort of violence is going to erupt again in the future."

There was ample evidence, in my opinion, to support a conclusion of that kind to be drawn against the appellant and as well to support the conclusion that he might so behave as to cause the respondent reasonably to fear that he would commit a violent personal offence. Indeed, the respondent gave evidence that he was in such fear of the applicant.
I would dismiss the appeal.
ANDERSON J: This appeal raises the question whether it is appropriate for a Court of Petty Sessions to make a violence restraining order against a householder after a violent incident between him and his next door neighbour in which he claimed he was acting in self‑defence without the court making a finding that he was not acting in self‑defence.
It is trite to say that a violence restraining order is not to be made lightly. It stigmatises the respondent as a violent person from whom another person or persons need to be protected by the court; and the restraints that may be imposed can significantly curtail the respondent's ordinary freedoms.
This case does involve neighbours between whom there had been trouble for some time. They each blame the other for this. The origins of the animosity do not clearly emerge from the papers before this Court, but probably arise from a general incompatibility between the two families and their children. There had been applications for violence restraining orders before. The details are not before us, but the evidence suggests that in mid‑May 2000 Mr McKenzie made an application for an order against Mrs Picken and she, in turn, made an application for an order against

Mr McKenzie, or it might have been the other way around. It seems that both families went to court and the matter was resolved by an exchange of appropriate undertakings to the court and perhaps to each other. There is evidence that about three weeks later there was another confrontation across the dividing fence involving verbal abuse and posturing and threats, which culminated in Mr McKenzie taking off his glasses and throwing them to the ground and rolling up his sleeves, and inviting Mr Picken to fight. No blows were exchanged. Both men stayed on their side of the fence. Mr Picken went inside and called the police and that, so far as appears from the evidence, was that.

The applications for the orders which are the subject of this appeal arose from an incident that occurred about five weeks later on 24 July 2000. In this incident which happened at about 10 pm, there was abusive language which started across the fence at the rear of the two properties and progressed to physical contact on the front verge involving a hockey stick, a steel star picket and a pepper spray. Mr McKenzie claims to have been struck with the hockey stick and, when the hockey stick broke, with the star picket. Mr Picken claims to have been sprayed with pepper spray.
Both Mr McKenzie and Mr Picken gave evidence as to the happenings on the night in question. There was not much common ground in their respective versions of events, but at least this much can be said. Dogs belonging to Ms Walsh, who lived behind Mr McKenzie and Mr Picken, began to bark in a manner that indicated they had been disturbed by someone. A short time later, Mr McKenzie and Mr Picken saw each other across the boundary fence at the rear of their properties. Words were exchanged. Very coarse language was used. Both men moved from the rear of their properties to the front and there was a confrontation on the front verge culminating in a fight, which appears to have ended when they became exhausted and another neighbour or neighbours separated them.
The grounds on which a Court of Petty Sessions may exercise its jurisdiction to make a violence restraining order pursuant to s 25 of the Restraining Orders Act 1997 are set out in the judgment of Murray J. The Court must be satisfied on the balance of probabilities that unless he is restrained the respondent is likely to commit a violent personal offence against the applicant or behave in a manner that could reasonably be expected to cause the applicant to fear that the respondent will commit such an offence. In addition, the Court must be satisfied, again on the balance of probabilities, that granting the order is "appropriate in the circumstances".
This seems to me to necessitate an inquiry into the incident upon which the application in this case is based. In my opinion, the mere fact that there was a violent physical clash between these two men which might happen again was not of itself sufficient to enliven the Court's jurisdiction to make a violence restraining order against either of the them even against the background of mutual animosity.
Mr McKenzie gave evidence that he was inside his house when Ms Walsh's dogs began to bark in the manner described. Mr McKenzie said they "were going berserk. Someone was stirring them up". After discussing the matter with his wife, he decided he should investigate. He took a torch and went to his back fence and it appeared to him that the dogs were barking at something on the Pickens' side of the fence. He switched on his security lights and saw Mr Picken "standing out on his back terrace and he was uttering all sorts of profanities … ".
Mr McKenzie's evidence was that Mr Picken shouted at him to "f‑off" and called him a "fat c‑". Mr McKenzie said that he replied to this by saying to Mr Picken "Oh, piss off, you drunk. Get inside … leave the dogs alone. Stop annoying people". He said that Mr Picken responded by saying, "I'm going to get you, you fat c-. I'm going to kill you". To this, Mr McKenzie responded by saying, "I'd like to see you try". Mr McKenzie's evidence was that quite a few words were exchanged and he said that Mr Picken then started "running up his driveway, and I went in my back door through the house, and I went out my front door, and on the way through, I picked up a pepper spray, and I put it in my back pocket". His evidence was to the effect that he did this fearing that Mr Picken was going to run around to the front, come onto his property and attack him. The effect of his evidence was that it was to prevent this happening that he went to the front of his house with the pepper spray in his back pocket. There he saw Mr Picken who said to him, "I'm going to kill you, you bastard". He said that Mr Picken ran back to the dividing fence as if to get something. Mr McKenzie said he thought that Mr Picken had "a bloody rifle in his hand" and thought he was going to be shot. He said that Mr Picken ran at him with what he thought was a gun. Mr McKenzie's evidence was that he backed away to try to get away, but Mr Picken swung at him with the implement and "copped me across the arm, across the shoulder, across the top of the head" and the implement, which turned out to be a hockey stick, then broke. Mr McKenzie said that he then hit Mr Picken and took the hockey stick away from him and pushed Mr Picken away, telling him "F‑off. Just get out of here. Go into your own yard". Mr McKenzie said that he could smell alcohol "all over" Mr Picken. He said that Mr Picken took two steps back, and took up a star picket which was on the front verge of Mr McKenzie's property to hold a real estate "For Sale" sign. He said that Mr Picken "ripped it out of the ground" and "come at me again", causing Mr McKenzie to fear for his life. His evidence was that he yelled to his wife to call the police and he then ran to Mr Picken and hit him with his knees and his elbow, grabbed the star picket from Mr Picken and threw it away. Mr McKenzie's evidence was that Mr Picken "got up, and he came at me again, and I hit him again, and I pulled the pepper spray out of my pocket. I thought 'I can't stop this bastard. He's bloody mad'. I had the pepper spray in my hand". According to Mr McKenzie, the pepper spray unit had been damaged (presumably in the fight) and "when I pressed down on it I got pepper spray in my face, I got it in me hair, I got it down me arm, I got it everywhere; so I hit him again. I thought 'The bloody pepper spray's not working' and I threw it away and I hit him again and I had pepper spray all through me fingers and he only had pepper spray in one eye, and that was the one I believe I hit him. I stepped again, he got up again, and I hit him. I said 'F‑off. Just go home. Get out of here before someone gets hurt.' I stepped back. I pushed him away from me. I'm in my property, not out on the road".
His evidence was that the struggle continued until a neighbour, Mr Taylor, arrived by which time Mr McKenzie said he was exhausted.
In my opinion, if that evidence was accepted, it may have led to the conclusion that, as to the physical aspects of the encounter between the two men - the violence - Mr Picken was the aggressor and Mr McKenzie acted in self‑defence, using no more than reasonable force to protect his property, his family and himself from reasonably apprehended violence at the hands of Mr Picken. If that conclusion had been reached, I doubt the court could have been satisfied that it was appropriate to make a violence restraining order against Mr McKenzie. The magistrate who heard the application did not consider it was necessary to make a finding as to whether Mr McKenzie had acted in self‑defence and in this I think, with respect, that she erred.
In an extempore decision, her Worship said this on the question of the approach to be taken by the court in such a case as this:
"Now, Mr Picken denies he hit Mr McKenzie with the hockey stick. He denies pulling out a star picket, and says he didn't go out onto the verge, or up the driveway. He does agree he got the hockey stick out of the house, but says he didn't use it, whereas Mr McKenzie, of course, disagrees with all that, but I'm not here to sort out, really, who hit who first in this fight that obviously erupted somewhere out the front of their property, but as I said, I'm not here to decide beyond reasonable doubt who started that fight, and whether somebody was provoked, or was defending themselves, and all the rest of it, because I'm concerned to determine, on the balance of probabilities, whether it's likely, unless a restraining order is in place, that this sort of violence is going to erupt again into the future."
Her Worship then referred to the conduct of both men immediately leading up to the fight and, in particular, Mr Picken's conduct in arming himself with a hockey stick and Mr McKenzie's conduct in getting a pepper spray and she said that "on the basis of that conduct alone, they were both in a position where they were prepared to arm themselves in those ways, to a certain extent, in case a violence broke out, and on both accounts, they could have easily gone back inside, cooled down, and not gone out the front, so in my view, in terms of this restraining order legislation, given that that's what started this whole thing, that both parties were prepared to be violent if it was necessary, on the basis of those initial acts, these violence restraining orders should be granted".
With due respect, this was not the correct approach in considering whether a violence restraining order should have been made against Mr McKenzie. I do not think it was correct to apply such a broad brush solution to the case. If, in truth, the "violent personal offence" which a respondent might commit against an applicant is likely to be committed only if the applicant first assaults the respondent, there may be no occasion for the making of an order against the respondent. This was a factual issue in this particular case, which should have been resolved. As I have already said, I believe that the making of a violence restraining order is a serious step, having serious consequences for the person against whom the order is made. In this case, for example, we are informed that Mr McKenzie is a shooting enthusiast who belongs to a gun club. The order against him includes an order that he "shall not be in possession of a firearm/firearms licence or obtain a firearms licence". By this order, he is required to give up one of his pastimes even although there was no finding that a firearm was involved.
I must emphasis that I am not to be taken as deciding that Mr McKenzie's evidence should be accepted, although the evidence of Ms Walsh would appear to reinforce it in some respects.

In the appeal to Scott J, from whose decision this appeal is brought, his Honour did not consider that self‑defence was a defence open to Mr McKenzie. Scott J said:
"This is not a case where the facts could lead to the conclusion that the appellant was using reasonable force only for the purpose of making effectual his defence against the respondent. On her Worship's findings of fact both parties were aggressive and either of them could have terminated the altercation had they stayed inside at the time in which they went into their respective houses to obtain the weapons which were subsequently used."
With due respect, I cannot agree with this conclusion. On Mr McKenzie's evidence, not rejected by the magistrate so far as I can see, he took up the pepper spray and went to the front with it in his back pocket only after Mr Picken had threatened to kill him and had run to the front seemingly to make good his threat. Depending, of course, on whether the evidence of Mr McKenzie was accepted, I consider that it was open to find, on the balance of probabilities, that he acted reasonably in defence of his property, his family and himself. On his evidence, it was reasonable for him to believe that Mr Picken was in a rage and was running to the front verge in order to make entry into Mr McKenzie's property with a weapon of some kind to do some form of damage. Under those circumstances, it was not unreasonable for him to go to the front of his property to try to prevent that happening. On his evidence, Mr Picken did come across the boundary onto Mr McKenzie's part of the verge, strike him with a hockey stick with sufficient force to break the stick and then attack him with a star picket pulled from Mr McKenzie's part of the verge. I repeat that none of this evidence was rejected.
I would allow the appeal and remit the matter to the Court of Petty Sessions in Mandurah for rehearing by a different magistrate.
STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them and with his Honour's conclusion that the appeal should be allowed and the matter remitted to the Court of Petty Sessions in Mandurah for rehearing by a different Magistrate.
A Magistrate may make a violence restraining order under s 11 of the Restraining Orders Act 1997 (WA) if satisfied, on the balance of probabilities, that, unless restrained, the respondent is likely either to

commit a violent personal offence against the applicant or to behave in a manner that could reasonably be expected to cause the applicant to fear that the respondent will commit such an offence and the granting of such an order is appropriate in the circumstances. In this case the Magistrate was satisfied, on the balance of probabilities, that the appellant, Mr McKenzie, was likely, unless restrained, either to commit a violent personal offence against the respondent, Mr Picken, or to behave in a manner that could reasonably be expected to cause Mr Picken to fear that Mr McKenzie would commit such an offence and that it was appropriate, in the circumstances, to make a violence restraining order.

However, as Anderson J has pointed out, her Worship was satisfied of this on the strength of the fact that, on 24 July 2000, each of Mr McKenzie and Mr Picken had been in a position in which he was prepared to arm himself (in Mr McKenzie's case by getting a pepper spray) "in case violence broke out". She considered it unnecessary to decide who started the fight which took place between them on that day "and whether somebody was provoked, or was defending themselves, and all the rest of it".
The appeal to Scott J was made on the ground that the Magistrate erred in declining to make any findings as regards the question whether or not the appellant had acted in self‑defence or had a defence of provocation open to him. The submission was made that, unless Mr McKenzie's account of the fight was rejected, he should have been seen to have been the victim of Mr Picken's aggressive behaviour and no violence restraining order should have been made against him. Scott J disagreed. His Honour pointed out that, on the Magistrate's findings of fact, both parties had behaved aggressively towards each other over a period of time and, on 24 July, either of them could have terminated the altercation by staying inside their respective houses.
With due respect, I am, like Anderson J, unable to agree with this conclusion. It is debatable whether the parties' prior conduct towards each other justified the making of the violence restraining order. However, I am inclined to think that it did not. Moreover, the Magistrate's conclusion was not based upon any prior acts of violence. It appears to have been based upon the events on 24 July 2000. As to those events, I agree with Anderson J that it was open to find, if the evidence of Mr McKenzie had been accepted (and I do not suggest that it should, or should not, have been accepted), that Mr McKenzie acted reasonably in defence of his property, his family and himself. I will not repeat all that Anderson J has said in that respect.