Myles v Carroll
[2003] WASCA 160
•25 JULY 2003
MYLES -v- CARROLL [2003] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 160 | |
| Case No: | SJA:1117/2002 | 1 MAY 2003 | |
| Coram: | EM HEENAN J | 25/07/03 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LESLEY MYLES LINDON CARROLL |
Catchwords: | Justices Act Appeal Misconduct restraining order Appeal against dismissal of application for MRO Discretionary judgment Turns on its own facts |
Legislation: | Restraining Orders Act (1997), s 11, s 34, s 38(2), s 43 |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Paterson v Paterson (1953) 89 CLR 212 McKenzie v Picken [2002] WASCA 113 Pacini v Johnson [2001] WASCA 228 Smith v Vivian [2002] WASCA 227 Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
LINDON CARROLL
Respondent
Catchwords:
Justices Act - Appeal - Misconduct restraining order - Appeal against dismissal of application for MRO - Discretionary judgment - Turns on its own facts
Legislation:
Restraining Orders Act (1997), s 11, s 34, s 38(2), s 43
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Ms H E Prince
Respondent : Mr B S Hanbury
Solicitors:
Appellant : P J Sorenson & Associates
Respondent : Beau Hanbury
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Paterson v Paterson (1953) 89 CLR 212
Case(s) also cited:
McKenzie v Picken [2002] WASCA 113
Pacini v Johnson [2001] WASCA 228
Smith v Vivian [2002] WASCA 227
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999
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1 EM HEENAN J: In May 2002 the appellant made an application to the Court of Petty Sessions at Joondalup seeking a Misconduct Restraining Order (MRO) against the respondent. The application came on for hearing before his Worship Mr S R Malley SM on 10 September 2002. After a hearing at which both the appellant and the respondent were represented by counsel the learned Magistrate delivered his reasons for decision and dismissed the application with costs. As a result of leave to appeal granted by Miller J on 31 October 2002 the appellant now appeals from that decision and submits that a Violence Restraining Order (VRO) or MRO should have been granted by his Worship at the end of the trial.
2 The appellant Lesley Myles is married to James Patrick Myles and at all material times lived at the family home at 16 Fawley Retreat, Mindarie. Also living at that home at the time was her husband's son, young James, then aged 10 years. Before his marriage to the appellant, James Patrick Myles had been living on a de facto basis with Susan Carroll who is young James' mother. There were two children of that relationship, a boy and a girl, young James and a daughter who was living with the respondent and her mother. After that relationship broke up, James' mother married Lindon Bruce Carroll and at all times material to these proceedings lived with him and her daughter at Star Street, Carlisle. As is natural, Mrs Susan Carroll desired to see her young son James periodically and for this purpose sought to visit him at the home of his father, and his step-mother the appellant Lesley Myles, at Mindarie. Her husband, the respondent Lindon Bruce Carroll, endeavoured to assist her in approaching the Myles family to arrange to see young James. It is his alleged behaviour towards Mrs Lesley Myles which caused her to apply, initially, for an MRO.
3 There are two occasions in particular which prompted the appellant to seek relief from the court and they occurred on 25 April (Anzac Day) 2002 and on 1 August 2002. It was also alleged by the appellant that the respondent made a number of abusive telephone calls to her in the period leading up to Anzac Day 2002.
4 As noted, the application originally lodged by the appellant was for an MRO under the provisions of the Restraining Orders Act 1997 – s 38(2). However, at the commencement of the hearing before the Joondalup Court of Petty Sessions counsel for the appellant informed the Court that the appellant was then seeking a VRO and submitted that the court had power to grant a VRO, if so satisfied on the evidence, notwithstanding that the original application was for an MRO. In this regard counsel can be taken to have been referring to s 43 of the Act
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- which expressly empowers a court, at a final order hearing, to make a final Violence Restraining Order even if the application was for a Misconduct Restraining Order (subsection 43(2)(a)) or vice versa. However, that section was not expressly drawn to the learned Magistrate's attention. His Worship expressed doubts about his ability to grant such relief in the circumstances. Nevertheless, the trial proceeded and, at the end of the evidence, counsel for the appellant again sought a VRO and repeated his submission that the court was empowered to grant such relief on the application then before it, if satisfied on the evidence that such relief should be given. The learned Magistrate ruled against this submission explaining that it was "inappropriate" to "upgrade" the application to a VRO when the initiating application was for an MRO.
5 It is particularly regrettable that the provisions of s 43 of the Act were not drawn to the attention of the learned Magistrate and it appears that neither his Worship nor counsel for the appellant had a copy of the Act available at the hearing. Had the legislation been before the Court, as one would have expected it to be, an examination of the terms of s 43 would have been sufficient to discern that the Court did have power to make a VRO at the final order hearing, as the appellant was submitting. Accordingly, the learned Magistrate's decision in this respect was in error.
6 It is necessary to examine the evidence and the other submissions of the appellant in order to consider whether the consequences of this error mean that this appeal should be upheld. This is the approach which must be followed because the powers of this Court on such an appeal, as prescribed by s 199 of the Justices Act (1902), are as follows:
"(1) Upon the hearing of an appeal, the Court may do one or more of the following -
(a) dismiss the appeal, or set aside, quash or vary the decision of the justices and any order made or thing done as a result of the decision;
(b) dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred;
…
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- (3) The Court is not required to set aside, quash or vary a decision of any justices because the justices omitted to make any necessary finding if the facts or evidence -
(a) in substance support the decision; or
(b) justify the finding,
and the Court may instead, under subsection (1) either vary the decision or substitute another decision for it."
(a) the learned Magistrate erred in law and fact in finding that the respondent was unlikely to behave in a manner reasonably expected to intimidate or be offensive to the applicant or cause a breach of the peace;
(b) the learned Magistrate erred in law and fact in failing to take any or sufficient weight of the previous conduct of the respondent towards the appellant;
(c) the learned Magistrate erred in law and in fact in failing to give any or sufficient weight to the evidence of the appellant in relation to the previous conduct of the respondent towards the appellant.
Restraining Orders
8 Parts II and III of the Restraining Orders Act (1997) deal, respectively, with Violence Restraining Orders and Misconduct Restraining Orders. The grounds upon which such an order may be granted are set out, respectively, in s 11 and s 34 of the Act which provide 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
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- (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."
9 When considering whether to make a VRO under the terms of any order a court is required to have regard to certain specified factors which are enumerated in s 12 of the Act.
10 With respect to Misconduct Restraining Orders the legislation provides:
"34.Grounds for a misconduct restraining order
34 A court may make a misconduct restraining order if it is satisfied that -
(a) unless restrained, the respondent is likely to -
(i) behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant and that would, in fact, intimidate or offend the applicant;
(ii) cause damage to property owned by, or in the possession of, the applicant; or
(iii) behave in a manner that is, or is likely to lead to, a breach of the peace;
and
- (b) granting a misconduct restraining order is appropriate in the circumstances."
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12 For a court to be satisfied of the existence of one or more of the grounds for making a restraining order it must be satisfied of the existence of that ground or grounds on the balance of probabilities – s 3. This has long been accepted as constituting the civil standard of proof which, however, necessarily has regard to the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding in affecting the question of whether the allegation has been proved - Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. This means that in civil litigation the standard of proof on the balance of probabilities remains even where the matter to be proved involves criminal conduct or fraud, but that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. This reflects the conventional perception that members of society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding, on the balance of probabilities, that a party to civil litigation has been guilty of such conduct – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
The Evidence at the Trial
13 The appellant and two other witnesses gave evidence in support of the application for a restraining order and each was cross-examined. In addition to the appellant, evidence was given by Andrew Maitland Myles, her brother-in-law, and by James Patrick Myles, her husband. The respondent, Lindon Bruce Carroll gave evidence on his own behalf and was cross-examined.
14 The appellant gave evidence that she had been at her home at Mindarie on 25 April 2002 and had received numerous abusive telephone calls that evening from the respondent in which he said that he was coming over to see her. Some of these calls were on the house telephone land line and others were to her mobile telephone. In the course of these calls she said that Mr Carroll had said that he had been drinking all day. She claimed that the calls were threatening and that the respondent said that he would stop her once and for all. She said that she told the respondent not to come and said that she, and young James, were in the house alone. This was not in fact the case because the appellant's husband, James Patrick Myles, was at home and his younger brother Andrew Maitland Myles, and his wife and their child were visiting that day. According to Mrs Lesley Myles, the respondent arrived at her home
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- at about 9.15pm (there was uncertainty about the exact time and different estimates of the time were later given) and there was a loud banging and screaming at the front door. She says that the respondent was shouting that he was going to sort her out once and for all and that he was going to kill her. She said that she had received similar abusive phone calls from him a few months beforehand.
15 According to Mrs Myles, her husband James Patrick Myles, went to the door and opened it and the respondent's attitude then changed immediately with him being very surprised to find her husband home. Her husband's brother Andrew was also at the door and the two men walked out to speak to the visitor. Mr James Myles told Lindon Carroll to go and the two brothers walked him down to his car at the end of the road some 50 to 60 metres away and saw him off.
16 Mrs Myles said that she was absolutely afraid of the respondent because her husband is often away from home and out of Australia in his employment and she therefore felt vulnerable to the respondent when she and her young stepson were home alone. She then explained that in the past there had been agreements made between herself and her husband on the one hand and the respondent and his wife Susan Carroll on the other for the children to visit their mother or father on alternate weekends and that, to give effect to these agreements, Mrs Lesley Myles would take young James to his mother's home and drop him off and, more recently, would take him to his mother at a nearby train station because she did not want to go to the Carroll household for fear of altercations. These arrangements had been in place for about a year but they had broken down and there was no existing agreement in place about access to the children at the time of the Anzac Day incident. Mrs Myles and her husband had made an application to the Family Court seeking orders to give them care of James and, shortly before these events, had arranged for their solicitors to send papers on to Susan Carroll for her to sign to allow this to be done. However, Mrs Carroll, James' mother was opposed to those proposals. It then emerged that there had been arguments or altercations in the past about arrangements for access to James and there had been abusive telephone calls made by the respondent to the appellant in connection with these matters some months beforehand.
17 According to Mrs Myles, the Anzac Day incident was the only occasion that Lindon Carroll had ever driven over to her house drunk to intimidate her. She says that he threatened to kill her saying: "I've had enough of you interfering with my marriage. --- I'm going to get you". According to her, Lindon Carroll arrived at the Myles' home in Mindarie
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- at about 8.40pm and the whole incident took about five or ten minutes after which the respondent had been seen off by her husband and his brother.
18 Mrs Myles made the application to the court for an MRO on 6 May 2002 as a result of this incident as she was very nervous about living in Mindarie knowing that the respondent Carroll was aware that her husband often worked away.
19 There was also a subsequent occasion when the respondent, his wife and some others came to the Myles' home at Mindarie uninvited. This was on 1 August 2002, the birthday of young James. The respondent Carroll, his wife and James' young sister came with some other people in a car and asked to see James to celebrate his birthday. The appellant allowed James to go outside and meet with his mother and have some birthday cake in the car. The visit passed without incident but Mrs Myles complained that the respondent stood on the road verge outside the house, his arms folded, his legs apart and staring at her as she was watching from an upstairs window. She felt alarmed and threatened by this conduct. After that visit, Mrs Myles telephoned the police at Joondalup and two policemen came over to see her. It was her evidence that the police advised her to take young James, leave the house and stay with friends but, in the end, she did not do so. She had not called the police after the earlier incident on Anzac Day 2002.
20 In cross-examination, Mrs Myles denied that the respondent had told her on the telephone on Anzac Day that he wanted to come over and discuss the problems with access to James with his father, Mr James Patrick Myles, and maintained that the respondent had not expected to find her husband home as was evident at his surprise when her husband and his brother answered the front door. She also denied an allegation that in seeking an MRO she was actuated by a desire to strengthen her position in relation to proceedings in the Family Court concerning access or care of young James. In particular, she denied an allegation that her husband's brother, Andrew Myles, had gone to the front door with a baseball bat or had used that or any other implement to assault the respondent while he was at Mindarie on the Anzac Day evening. She confirmed that the respondent had threatened to kill her and had repeatedly said that he was coming to "sort her out".
21 The appellant's brother-in-law, Andrew Maitland Myles, gave evidence that on Anzac Day he, his wife and child had come up from the south to visit his eldest brother Jim and that they were at the Mindarie
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- home about to have dinner when, at about 8 or 9 o'clock that night, he heard somebody kicking and screaming at the front door. He walked to the front door with his brother and found Lindon Carroll there just yelling and screaming. Andrew Myles said that the respondent looked pretty surprised to find his brother home. He was then told to leave and the two brothers walked the respondent down the road to his car about 50 or 60 metres away, holding him by the arm. They left him there and he drove away. In cross-examination Andrew Myles denied that he had had any telephone discussion with Mrs Susan Carroll earlier that night. He also denied having a baseball bat or assaulting the respondent in any way. He described the respondent as being fairly intoxicated and remembered him saying, of his sister-in-law, that he would "sort her out".
22 James Patrick Myles confirmed that, as a mechanical engineer, he worked on a mine site outside Australia and was often away from home. He said that on the evening of 25 April 2002 the respondent Lindon Carroll showed up at the door of his home kicking and banging and yelling. Myles opened the door and the respondent's whole attitude then changed. This occurred at about 8.45 or 8.50pm. Myles told the respondent to go back to his car, took him by the arm and with his brother led him back to the car. The respondent got in his car and drove away.
23 Mr Myles said that he and his wife used to get the odd drunken abusive phone call from the respondent in the past and that Lindon Carroll seemed to think him responsible for difficulties in his marriage, there having been a marriage break-up between the respondent and his wife, the two then getting together again, but followed by another break-up and another reconciliation. Myles said that apart from a few abusive telephone calls, he found the respondent a "pretty decent sort of guy". In cross-examination he explained that this prior relationship had changed very much after the Anzac Day incident. He also explained that there had been problems with Mrs Susan Carroll (his former girlfriend) ringing up and wanting money, asking to get back together with him, but he rejected her claims. He was critical of the respondent for being very violent in coming round to the Mindarie house and abusing his wife and terrorising her. He emphasised that the respondent was drunk at the time of his visit on 25 April 2002, but denied that he was injured or had been assaulted.
24 Mr Myles was away from home on 1 August 2002 when the respondent, his wife and others came to visit young James on the occasion of his birthday.
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25 The respondent himself gave evidence and confirmed that he was married to Susan Carroll, an old girlfriend of James Myles, by whom she had two children, young James and Kaylee. Kaylee was living with the Carroll family and there were also twin girls born of the marriage of Susan Carroll and the respondent. Mr Carroll said that he went to the Myles' home on the evening of 25 April 2002 to talk to Mr James Myles, about young James and problems with his wife, in particular, access to the boy. He said that he did not threaten to kill Lesley Myles and did not say that he was going to sort her out or anything to that effect. His intention was to try and sort out disagreements with Mr James Myles and his wife Susan over arrangements for access to young James and Kaylee.
26 According to Mr Carroll, he knocked on the door of the Myles' home at Mindarie and there was no kicking or banging. Mr James Myles answered the door but before they could converse, his brother Andrew came flying up the stairs from behind with a baseball bat and began hitting him in the legs and walloped him on his head. It was his evidence that James Myles pushed his brother away but the brother threatened to smash his car up. He went back to the car with the two brothers and was left to drive away in an injured state. His evidence was that because of his injuries he had to stop on the freeway and he was then taken by a passer by to hospital where he was admitted as a patient for a period of four days. He denied that he had ever threatened Mrs Myles.
27 In cross-examination he said that he knew that Mr James Myles was at home and he went there to speak to him to try and resolve the difficulties about access to the children and that he had spoken to Andrew Myles by phone that day. According to the respondent, he arrived at the Myles' home between 8.30 and 9.00pm that evening after he had been drinking that day and may have taken 10 full strength beers.
28 He was not cross-examined about his alleged conduct on the subsequent visit to the house on 1 August 2002 when the Carroll family called to see young James on his birthday. However, he had said in his evidence-in-chief, that he and his wife, the twins and young Kaylee, together with one of Susan's friends and her young child travelled to Mindarie by car for that visit.
The decision in the Court of Petty Sessions at Joondalup
29 After hearing this evidence the learned Magistrate proceeded directly to give oral reasons for his decision which was to dismiss the application for a restraining order with costs. I have already described how, in the
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- process, the learned Magistrate refused to entertain an application for a VRO on the grounds that the initial application was for an MRO which could not then be upgraded and why his Worship was in error in reaching that conclusion. However, his Worship concluded, in my respectful opinion correctly, that the basis for the application for a restraining order was the alleged conduct of the respondent on the evening of 25 April 2002. This necessarily involves a conclusion that nothing happened on 1 August 2002 which would warrant a restraining order. His Worship dealt with the events and his reasons for decision in this regard were as follows:
"Whilst there is some evidence of prior verbal altercations, prior to the 25th April, there is nothing in my view of substance and nothing which would certainly justify the granting of a misconduct restraining order. On Mr James Myles' evidence, prior to this incident, whilst there may have been some conversations which were considered inappropriate, certainly his view was that essentially the respondent was okay and there were no potential problems with the respondent.
The evidence of Mrs Myles is that on the evening of 25th April she received a number of phone calls, including which were these threats to get her, kill her, sort her out. She says that the respondent said that he was coming round to her house, despite her request that he not.
I have to say I find it somewhat extraordinary that Mr James Myles didn't appear to be aware of any of those calls, or more significantly that the threat which, in my view, would normally cause a reasonable person some degree of apprehension, there is evidence on arrival of the respondent being on the door and yelling, from three main applicant's witnesses, but after that there [were] no particular problems occurring, certainly involving the applicant in this case.
It's of note the events occurred on 25th April. It would appear from the court file the application was made on 6th May, the respondent was served on 24th May and there was a first appearance in this Court on 10th June. Since April there have been no other incidents other than one appearance at the house on 1st August, and simply there [were] no altercations [or] anything of substance occurring on that date.
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- In this case, the respondent says that he went to the respondent's house around 9, that being a public holiday, because his wife was upset about an access issue and he wanted to sort it out. He agrees he'd been drinking and, in my view, those combination of factors lead me to conclude that he went round --- the suggestion that he went round mildly, effectively, knocking on the door, frankly to be lacking in some credibility. I am satisfied that he did knock on the door loudly and certainly was in an agitated state.
There were phone calls prior. There is conflict of evidence as to what was said. As I said, I also find it difficult to accept that death threats were made, and he says he's coming round but Mrs Myles doesn't tell her husband about that possibility.
But taking the worst case scenario for the respondent, is the misconduct restraining order established that, unless restrained, the respondent is likely to, and that being a future prognosis, behave in a manner reasonably expected to be intimidating or offensive or breach the peace, and in all the circumstances, the order is appropriate, I have to say life experiences are that one swallow doesn't make a summer. Behaviour on the evening which no doubt arose from frustration and alcohol or whatever no doubt was inappropriate and in isolation could seem to be offensive and intimidatory, but there is, in my view, no substantive history either before or after the incident which would warrant a granting of a restraining order. In my view the application hasn't established the likelihood, and further, in my view and in all the circumstances, the making of an order is inappropriate. The application is dismissed."
30 From these reasons it may be concluded that the learned Magistrate accepted that the respondent had come uninvited to the Myles' home on the evening of 25 April 2002 in an intoxicated condition and behaved in an offensive and intimidatory manner. His Worship does not appear to have been satisfied that there was an express threat to kill Mrs Myles made either in the course of the telephone conversations or while the respondent was demanding that the front door be opened at the house. He does, however, appear to have concluded that various offensive remarks, including a threat to "sort her out", were made by the respondent. There was no express finding made by his Worship about the allegation by the respondent that he had been assaulted by Andrew Myles but the implication is clearly that this allegation was not accepted.
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31 It is clear that his Worship was not satisfied that there was any threatening or intimidating conduct which would warrant a grant of any form of restraining order on the occasion of the visit to the Myles' home on 1 August 2002.
32 The crucial conclusion by his Worship was that, although in isolation, the conduct of the respondent on the evening of 25 April 2002 could be regarded as offensive and intimidatory, there was no reason to conclude that there was any significance risk of a repetition of that conduct nor any need to make a restraining order. In the circumstances, this can only mean that his Worship was not satisfied that the respondent was likely in the future to behave in a manner that could reasonably be expected to be intimidating or offensive to the appellant and that would in fact intimidate or offend her, or that he was likely to cause damage to property owned by or in the possession of the appellant or that he was likely to behave in a manner that is, that was or was likely to lead to a breach of the peace - which, are of course, the criteria which need to be established before an MRO can be made under s 34 of the Act. Furthermore, there was the express conclusion that his Worship considered that it was not appropriate to grant an MRO in those circumstances.
33 While it is certainly the case that the learned Magistrate did not consider whether or not the criteria for the grant of the VRO had been established, the conclusions which he did reach make it clear that, on his view of the facts, he would have refused such an order. To grant a VRO the court would need to have been satisfied that, in the future, the respondent was likely to commit a violent personal offence against the appellant, or behave in a manner that could reasonably be expected to cause her to fear that he would commit such an offence. The conclusions which the learned Magistrate reached in relation to the application for an MRO effectively exclude any possibility that he would have been satisfied of the existence of the criteria necessary for the grant of a VRO.
34 It is these conclusions which are challenged by the other grounds of appeal set out earlier in these reasons. The appellant contends that the learned Magistrate erred in law and in fact in finding that the respondent was unlikely to behave in a manner reasonably expected to intimidate or be offensive to the appellant or to cause a breach of the peace; and in failing to take any sufficient weight of previous conduct of the respondent towards the appellant; and in failing to give any or sufficient weight to the evidence of the appellant in relation to the previous conduct of the respondent towards the appellant.
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35 While paying due regard to the advantage which the learned Magistrate had through seeing the witnesses and enjoying the capacity to measure their temperament and demeanour through direct observation, it is still necessary for this Court on this appeal to conduct a real review of the trial and of the reasons given for the decision. The importance of an appellate court undertaking the task of reviewing the evidence and reaching its own inferences and conclusions has recently been reinforced by the decision of the High Court in Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 where the need to perform this task was emphasised by the joint judgment of Gleeson CJ, Gummow and Kirby JJ. However, in the present case it cannot be said that his Worship ignored any critical evidence which pointed to a conclusion contrary to the one he himself had reached, or that there was any incontrovertible fact, mistaken or ignored, which would have produced a different result. None was suggested at the trial, nor at the hearing of this appeal.
36 There can be little doubt that Mrs Myles was alarmed at the prospect that the respondent would come uninvited to her home, as he did on the Anzac Day evening, and alarmed that he should behave offensively, as it seems that he clearly did. However, for the grant of a restraining order to be warranted, whether a VRO or an MRO, the court was required to reach a conclusion about the probability of repetition of this or other threatening or intimidatory behaviour. It is in this regard that the learned Magistrate concluded that he was not satisfied that any such conduct in the future was likely.
37 By the time the case was heard in mid September 2002 nearly five months had passed without incident, except for the visit to the Mindarie home on young James' birthday on the evening 1 August. However much the appellant may have disliked and resented the respondent's presence outside her home on that occasion, and however hostile she may have taken his attitude to her to have been, there was really no basis whatever for a finding that his behaviour on that occasion could reasonably be expected to be intimidating or offensive and that it would in fact intimidate or offend the applicant or that he would cause damage to property or create a breach of the peace. At the most the respondent showed a hostile and defiant demeanour, unaccompanied by any physical or verbal threats, by standing with his wife and children, another female friend and her child on the road verge outside the home while the appellant was secure inside. With respect to the submissions which have been made to the contrary, I cannot see any basis upon which it could be said that the learned Magistrate was in error in failing to conclude that this behaviour gave rise to a likelihood that a violent personal offence might
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- be committed or that the applicant could reasonably be expected to fear that the respondent would commit such an offence, or that if not restrained he would reasonably be expected to be intimidating or offensive to the appellant and that such conduct would in fact intimidate or offend her.
38 It is to be appreciated that before a restraining order can be granted the court must be satisfied, to the requisite degree on the balance of probabilities, that if it is not granted the respondent would act in a particular manner. Accordingly, the court is required to reach a standard of persuasion about the reliability of a future prognostication. It is to the probability of repetition of violent, offensive or intimidatory conduct occurring in the future that attention must be directed, not to an analysis of the significance or effect of some conduct, isolated or continuing, which has taken place in the past. What has occurred in the past is, unquestionably, relevant and material but only to the degree to which it justifies the formation of a conclusion about the likelihood of future occurrence of behaviour which the legislation prohibits. This is not so much an exercise in determining the proof of past events but of concluding what, if any, significance can be attached to them when considering the probability of future conduct occurring.
39 In the present case the learned Magistrate observed that the events of 25 April 2002 were isolated. While there had been arguments and abusive conduct occasionally before, there had been nothing which had created any serious apprehension of fear, violence or intimidation. That finding was certainly consistent with the evidence of the appellant's husband. Equally, there was no evidence of any repetition of violent, offensive or intimidatory conduct after 25 April 2002 and, in the learned Magistrate's view, the events of 1 August at the birthday visit could not be regarded as being of that character. With respect, I agree with that analysis.
40 This was, therefore, a case in which the trial court was not satisfied that a case had been made out by the complainant to justify the grant of the remedy sought. Speaking of the role of an appellate court on an appeal in a case where there is a conflict of evidence, Griffith CJ said in Dearman v Dearman (1908) 7 CLR 549 at 553:
"There is, perhaps, a distinction between a case where the Judge has found in favour of a plaintiff, or the party upon whom the onus of proof lies, and a case where he has found in favour of the other party. If the Judge has found in favour of the party upon whom the burden of proof lies the Court of Appeal may review the case with greater freedom, for instance, in the case of
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- an application to enter a non-suit on the ground that, though there were some scintilla of evidence, there was nothing upon which reasonable men ought to act. But if the tribunal of first instance, having seen and heard the witnesses, comes to the conclusion in favour of the party upon whom the burden of proof does not lie, it is almost hopeless to try to induce a Court of Appeal to interfere with that finding unless it has clearly proceeded upon a wrong principle. That is the general rule of law which prevails in courts of appeal."
41 In Fox v Percy (supra) McHugh J observed that the decision in Dearman was approved in Paterson v Paterson (1953) 89 CLR 212 and was consistent with subsequent authority. Fox v Percy, however, is salutary reminder that there is no automatic rule which renders a finding of fact unreviewable and that all findings of fact and inferences drawn from them are examinable by appellate courts, bearing in mind the cautions there expressed.
42 However, in the present case where the evidence adduced at trial was not regarded as sufficient to persuade the learned Magistrate that, on the balance of probabilities, there was a likelihood that unless restrained, the respondent would in the future behave in a manner which the statute prohibited, it is very difficult to reach a contrary conclusion unless some clear error or omission by the learned Magistrate is shown to have occurred. This is not suggested in this case, rather the appellant's case is that insufficient weight was attributed to the evidence by the learned Magistrate and insufficient weight attributed to the past behaviour of the respondent and the effect that this would have upon the appellant. With all respect, I cannot accept these submissions for it seems to me that the learned Magistrate was fully aware of the statutory criteria and addressed them directly. It is not just the appellant's reaction to the past conduct of the respondent and her fears and apprehensions, however real, about the risk of repetition which is determinative. The court must reach its own conclusion as to whether or not the respondent is likely to commit a violet personal offence against the applicant, in the case of a VRO, or to behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant and would in fact so intimidate or offend her, in the case of an MRO, or to behave in the future in a manner that could reasonably be expected to cause the appellant to fear that he would commit such a violent offence (in the case of a VRO) and so on. It is the estimate of the likelihood of the commission of such future conduct which the court must make and this is clearly what the learned Magistrate in this case addressed at the end of the trial.
(Page 18)
43 As there has been no error of law or principle shown to have been committed by the learned Magistrate at the trial, nor any evidence overlooked or misconstrued, I do not see that there are any grounds which have been demonstrated to overrule or vary any of the findings which were made in this case.
44 Previously, I have accepted that the learned Magistrate at trial was in error in refusing to consider the appellant's application for a VRO, both at the beginning of the trial and again at the end of the trial when submissions in that regard were made by her counsel. However, I am satisfied that on the evidence and on the findings which were made, the learned Magistrate would not have been justified in granting a VRO and, accordingly, that error has not led to any miscarriage of justice in the case.
45 For these reasons, I consider that this appeal should be dismissed.
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