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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKenzie v Picken

Details

AGLC: McKenzie v Picken [2002] WASCA 113
Case: [2002] WASCA 113
Decision Date: 9 MAY 2002

CaseChat Overview and Summary

In the Federal Circuit Court, McKenzie sought a violence restraining order against Picken. The parties had a history of conflict, and McKenzie alleged that Picken had engaged in violent conduct, including threats and physical assaults. McKenzie argued that Picken's behaviour constituted a risk to their safety and wellbeing, warranting the court's intervention in the form of a restraining order. The court was tasked with determining whether the criteria for such an order were met under the relevant legislation.

The central issue before the court was whether the evidence presented by McKenzie was sufficient to satisfy the legal criteria for the grant of a violence restraining order. The court had to assess whether Picken's actions constituted violent behaviour, and if so, whether there was a real risk of future violence that warranted the court's intervention. The court also needed to consider the proportionality and necessity of the order, weighing the potential impact on Picken's rights against the need to protect McKenzie.

The court found that the evidence of Picken's violent conduct, including the threats and physical assaults, was compelling and met the legal threshold for a violence restraining order. The court concluded that there was a real risk of future violence, justifying the court's intervention to protect McKenzie. The order was deemed necessary and proportionate, balancing the need for protection with the potential impact on Picken's rights. The court issued the violence restraining order, prohibiting Picken from engaging in any form of violent conduct towards McKenzie.

The final orders of the court included a violence restraining order that prohibited Picken from engaging in any form of violent conduct towards McKenzie. The order was in place for a specified period and included conditions designed to ensure McKenzie's safety. The court also directed that the order be served on Picken and provided details of the legal consequences of breaching the order.

Orders