MCKENZIE -v- PICKEN [2001] WASCA 318

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 318
Case No:	SJA:1046/2001	Heard:	21 SEPTEMBER 2001
Coram:	SCOTT J	Delivered:	19/10/01
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ALAN DONALD MCKENZIE KIM MORRIS PICKEN
Catchwords:	Criminal law and procedure Restraining Orders Act 1997 Violence restraining orders No requirement to establish that an offence was committed History of acrimony between parties Turns on own facts
Legislation:	Restraining Orders Act 1997 s 11, s 12
Case References:	Doyle v Jones [1952] WAR 1 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MCKENZIE -v- PICKEN [2001] WASCA 318 CORAM : SCOTT J HEARD : 21 SEPTEMBER 2001 DELIVERED : 19 OCTOBER 2001 FILE NO/S : SJA 1046 of 2001 BETWEEN : ALAN DONALD MCKENZIE

Appellant

AND

KIM MORRIS PICKEN

Respondent

Catchwords:

Criminal law and procedure - Restraining Orders Act 1997 - Violence restraining orders - No requirement to establish that an offence was committed - History of acrimony between parties - Turns on own facts

Legislation:

Restraining Orders Act 1997 s 11, s 12

Result:

Appeal dismissed

(Page 2)

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):

Doyle v Jones [1952] WAR 1

Case(s) also cited:

Nil

(Page 3)

1 SCOTT J: The appellant and respondent are neighbours. The appellant resides at 16 Rainbow Way Dawesville and the respondent at 18 Rainbow Way.

2 On 1 August 2000 a Stipendiary Magistrate at Mandurah made two violence restraining orders. One was in favour of the appellant against the respondent, and the other in favour of the respondent against the appellant. It is only the latter which is the subject of this appeal.

3 Pursuant to the provisions of s 16(1)(5)(c) of the Restraining Orders Act 1997 ("the Restraining Orders Act") where the violence restraining order becomes a final order as in the case here, the order runs for a period of two years from the date upon which the interim order comes into force. In this case it is common ground that the two restraining orders expire on 1 August 2002.

4 The evidence before the learned Magistrate indicates that there was a history of acrimony between the appellant and the respondent. In her reasons for judgment her Worship referred to the fact that the appellant and respondent had been before the court earlier in relation to restraining orders. On 25 May 2000 the proceedings were resolved by undertakings given by each party that there should be no contact and that they should act reasonably towards each other. Those undertakings concluded the proceedings on 25 May.

5 The evidence before her Worship indicated that a further incident occurred on 16 June 2000 (that is approximately three weeks after the undertakings were given) on which occasion on…

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 [2001] WASCA 318
Case: [2001] WASCA 318
Decision Date: 19 OCTOBER 2001

CaseChat Overview and Summary

McKenzie v Picken is a case concerning the interpretation of the Restraining Orders Act 1997, specifically regarding violence restraining orders. The appellant, McKenzie, sought to overturn a violence restraining order made against him by the respondent, Picken, on the basis that the order was made without sufficient evidence that an offence was committed. The case was heard in the Supreme Court of Queensland, and subsequently appealed to the Court of Appeal.

The court was required to determine whether the making of a violence restraining order under the Restraining Orders Act 1997 necessitated proof of an offence being committed. The appellant argued that the Act required a finding of an offence before such an order could be made, while the respondent contended that the history of acrimony between the parties and the likelihood of future violence were sufficient grounds for the order. The court was also required to consider the weight to be given to the history of animosity between the parties.

The court dismissed the appeal, finding that the Act did not require proof of an offence before a violence restraining order could be made. The court emphasised that the focus of the Act was on preventing violence, and that the history of animosity between the parties was a relevant factor in determining whether such an order was appropriate. The court held that the trial judge had properly exercised their discretion in making the order, and that the appeal should be dismissed. The court found that the evidence presented was sufficient to support the making of the order, and that the appellant's arguments were not persuasive.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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