Nair v Walter - [2022] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NAIR -v- WALTER [2022] WASC 18
CORAM:   DERRICK J
HEARD:   19 JANUARY 2022
DELIVERED          :   28 JANUARY 2022
PUBLISHED           :   28 JANUARY 2022
FILE NO/S:   SJA 1066 of 2021
BETWEEN:   SURABH RADHAKRISHNAN NAIR
Appellant
AND
NICHOLAS WALTER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D POTTER
File Number            :   PE 10393/2021

Catchwords:

Criminal law - Appeal against conviction - Application for an extension of time - Application to admit additional evidence - Appellant convicted on plea of guilty of breaching a Family Violence Restraining Order contrary to s 61(1) of the Restraining Orders Act 1997 (WA) - Circumstances in which an appellate court will set aside a conviction based on a plea of guilty - Whether on admitted facts appellant could in law have been guilty of the charged offence - Principles to be applied in construing conditions and exemptions contained in Family Violence Restraining Orders - Whether appellant breached Part A condition of Family Violence Restraining Order by approaching within 20 m of protected person - Interpretation of 'approach within' - Whether appellant did not breach Family Violence Restraining Order because at time of approaching protected person he was participating in and attending a court event in proceedings in which he and the protected person were parties within meaning of a Part B exemption of the order - Whether s 62(1)(ca) of the Restraining Orders Act provided the appellant with a defence to the charged offence

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Application to admit evidence dismissed
Application for extension of time to appeal allowed

Application for leave to appeal allowed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr M A Perrella
Respondent	:	Mr J F Bennett

Solicitors:

Appellant	:	Perrella Legal
Respondent	:	State Solicitor (WA)

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

Clarke v The State of Western Australia [2018] WASCA 14
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Elmi v Rozario [2013] WASC 38
Horwarth v Sharples [2018] WASC 315
Lancaster v The Queen [1989] WAR 83
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Samuels v The State of Western Australia (2005) WASC 193; (2005) 30 WAR 473
Tsang v Francis [2019] WASC 290
Tsang v Francis [2021] WASCA 131
Vella v The State of Western Australia [2006] WASCA 129

DERRICK J:

Introduction

On 27 November 2020 conduct agreement order 2020 02017 (Order) was made against the appellant for the benefit of AG (complainant) pursuant to s 10H(1) of the Restraining Orders Act 1997 (WA) (ROA). Under s 10H(3) of the ROA a conduct agreement order is not a Family Violence Restraining Order (FVRO) but is taken to be a FVRO for the purposes of the ROA.
On 4…

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 Nair v Walter

Details

AGLC: Nair v Walter [2022] WASC 18
Case: [2022] WASC 18
Decision Date

CaseChat Overview and Summary

In the appeal, Surabh Radhakrishnan Nair (the appellant) sought to appeal against his conviction by the Magistrates Court for breaching a Family Violence Restraining Order (FVRO). The appellant had been convicted on his plea of guilty of the offence. The appeal was heard by Derrick J in the Supreme Court of Western Australia. The appeal was based on the ground that there had been a miscarriage of justice because on the admitted facts the appellant could not in law have been guilty of the offence. The appeal was allowed but dismissed on the merits. The appeal against conviction was based on the proposition that the magistrate had found that the appellant's offence was comprised of him, from less than 20 m away, approaching the complainant in the course of approaching the complainant's support person in response to a provocative comment made to him by the support person. The appellant submitted that the words 'approach within' should be construed to mean that he must remain outside a radius of 20 m of the complainant. The court disagreed and held that the words 'approach within' should be interpreted as encompassing conduct that involves intentionally moving nearer the protected person from a position that is already inside a 20 m radius of the person. The court found that the appellant did, in engaging in the conduct the subject of the offence, 'approach within 20 metres' of the complainant in contravention of the Part A order. The appellant's conduct did not fall within the Part B exemption because it was not an inevitable or necessary consequence of his attendance at, or participation in, the property dispute resolution. The appellant did not have a defence under s 62(1)(ca) of the Restraining Orders Act 1997 (WA). The appeal was dismissed.

Orders