Nair v Walter

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 March 2021 the appellant was charged with one offence of breaching the Order contrary to s 61(1) of the ROA (charge).[1] The charge as pleaded in the prosecution notice was that on 17 December 2020 at Perth the appellant 'was bound by Family Violence Restraining Order 2020 02017 and breached the Order'.
[1] PE 10393/2021.
On 2 June 2021 in the Magistrates Court the appellant pleaded guilty to, and was convicted of, the charge (offence). On the same date Magistrate Potter sentenced the appellant for the offence to a fine of $1,000. His Honour also made a spent conviction order.[2]
[2] ts 7, 2 June 2021.
On 13 September 2021 the appellant applied for an extension of time within which to appeal and for leave to appeal against the decision of the magistrate convicting him of the offence on the following single ground (the pleaded particulars of which are referred to below):[3]
There was a miscarriage of justice because on the admitted facts the appellant could not in law have been guilty of the offence.
[3] The applications were made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant is a decision against which the appellant may appeal on the ground that the decision has resulted in a miscarriage of justice: CAA, s 6(c), s 7(1) and 8(1)(b).
On 8 November 2021 a registrar of this court made orders that the application for an extension of time within which to appeal and for leave to appeal be heard together with the appeal.

Application for an extension of time - principles

The last day for the appellant to apply for leave to appeal against his conviction was 30 June 2021.[4] The appellant filed his Appeal Notice on 13 September 2021, that is, approximately two and a half months out of time.
[4] CAA, s 10(3).
The appellant has filed in support of his application for an extension of time within which to appeal an affidavit sworn by his solicitor and counsel, Mr Michael Perrella, dated 13 September 2021.
Ultimately the question is whether it is in the interests of justice to grant an extension of time.[5] In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[6]
[5] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14].
[6] Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] - [25].
Where there has been a lengthy delay a court should only grant an extension of time within which to appeal if exceptional circumstances are shown or if a failure to grant the extension would result in a substantial miscarriage of justice.[7]
[7] Lancaster v The Queen [1989] WAR 83, 85; Elmi v Rozario [2013] WASC 38 [15].
The position adopted by the respondent in relation to the appellant's application for an extension of time is that if I conclude that the ground of appeal has merit the application is not opposed.
The delay in filing the Appeal Notice is relatively lengthy. In these circumstances it will not be in the interests of justice to grant the requested extension of time unless exceptional circumstances are shown or to refuse to do so will result in a substantial miscarriage of justice. Accordingly, I will defer making a final decision on the application for an extension of time until I have dealt with the merits of the application for leave to appeal.

Leave to appeal - principles

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[8] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[9] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[10]

[8] CAA, s 9(2).

[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[10] CAA, s 9(3).

The hearing before the magistrate

As I have already indicated, the appellant's sentencing hearing took place on 2 June 2021.
At the beginning of the hearing the appellant's counsel (not counsel appearing for the appellant on his application for leave to appeal) informed the magistrate that a plea of guilty had been 'indicated … on the last occasion' and that the appellant's plea could 'now be taken'.[11] Having been provided with this information the magistrate read the charge to the appellant and asked him how he wished to plead.[12] The appellant pleaded guilty.[13]
[11] ts 2, 2 June 2021.
[12] ts 2, 2 June 2021.
[13] The transcript does not actually record the appellant responding 'guilty' to the magistrate's question asking him how he wished to plead. However, it is common ground between the parties that the appellant did actually respond to the magistrate's question by stating that he was 'guilty'.
After taking the appellant's plea of guilty the magistrate heard the facts of the offence. The facts of the offence as stated to the magistrate by the prosecutor were as follows:[14]
On 7 May 2020, the [appellant] was personally served with a family violence restraining order. They were standard conditions …. The protected person was [the complainant]. On 17 December 2020, the [appellant] was at the Family Law Court of Western Australia, situated at 150 Terrace Road, Perth, regarding a property dispute resolution with the [complainant]. During a lunch break, the lawyer of the [appellant] approached the [complainant] and asked if they may have a conversation without the [complainant's] support person being present.
The [complainant] declined the request. The [appellant], being nearby, heard the [complainant's] response and suddenly rushed towards her as he entered into a verbal exchange with the support person's husband. The [appellant] shouted aggressively, gesturing at the [complainant]. The [appellant] shouted in Malayalam, the language spoken by the [appellant] and the [complainant]:
You are sleeping with him. That's why he is helping you.
Other people present intervened and pushed the [appellant] down the corridor, away from the [complainant]. Later that same day, the [appellant] saw the [complainant] as he entered the lift at the Family Court. The [appellant] gestured his middle finger at [the complainant]. Those actions were captured on the CCTV. He was arrested and refused to participate in an audiovisual record of interview.
[14] ts 3, 2 June 2021.
The prosecutor did not, in stating the facts of the offence, clearly identify for the magistrate the particular aspect of the appellant's described conduct that the prosecution contended constituted the single breach of the Order the subject of the offence.
After hearing the facts of the offence the magistrate heard the appellant's counsel's plea in mitigation.
The appellant's counsel, despite telling the magistrate that the facts were 'generally accepted',[15] proceeded to outline to his Honour the appellant's version of events upon which the appellant had pleaded guilty to the charge and upon which counsel 'urged' the magistrate to sentence the appellant.[16] The appellant's version of events, as stated by his counsel, was as follows:
[15] ts 3, 2 June 2021.
[16] ts 3, 2 June 2021.
1.The appellant's anger was directed at the complainant's support person who had made a provocative comment;[17]
2.The appellant and the complainant's male support person had previously been friends but the support person had taken the complainant's side with the result that the relationship between the appellant and the support person was difficult;[18]
3.It was the appellant's conduct in reacting to the support person's provocative comment and approaching the support person that 'in turn' resulted in the appellant approaching the complainant and consequently breaching the Order;[19]
4.The appellant denied communicating with the complainant;[20]
5.The appellant's anger was directed at the support person for what had been said.[21] The appellant reacted 'on the sudden, upon hearing a provocative comment'.[22] The appellant had, up until the time that he approached the support person and the complainant, 'kept his distance';[23]
6.The appellant did not admit speaking to the complainant. He admitted speaking to the support person;[24]
7.When the appellant raised his middle finger this gesture was directed at the support person and not the complainant;[25]
8. At all times there were four people between the appellant and the complainant, being two lawyers and two support people;[26] and
9.The appellant responded to the provocative comment that did not need to be made.[27] The appellant was keeping his distance.[28] The appellant was 'some 10 metres away, just waiting by the lift'.[29] It was only when the appellant heard the provocative comment by the support person that he approached and spoke to the support person.[30]
[17] ts 4, 2 June 2021.
[18] ts 4, 2 June 2021. Although the appellant's counsel did not during his plea in mitigation refer to the support person by name, it is clear from counsel's references to 'he', 'him' and 'that man' in referring to the support person that the support person was a male: ts 3-6, 4 June 2021. In any event this fact is not in issue.
[19] ts 4, 2 June 2021.
[20] ts 4, 2 June 2021.
[21] ts 4, 2 June 2021.
[22] ts 4, 2 June 2021.
[23] ts 4, 2 June 2021.
[24] ts 4, 2 June 2021.
[25] ts 4, 2 June 2021.
[26] ts 4, 2 June 2021.
[27] ts 6, 2 June 2021.
[28] ts 6, 2 June 2021.
[29] ts 6, 2 June 2021.
[30] ts 6, 2 June 2021.
After hearing the appellant's counsel's plea in mitigation the magistrate said the following (emphasis added):[31]
Well, I think the facts of this matter are particularly confined to the circumstances that faced [the appellant] on the day. So I accept that it wouldn't be in the public interest to record a conviction, given the impact it would have upon his ability to remain employed - retain his employment. So again, I will just make that clear that I think a spent conviction order is appropriate in this particular matter.
There's an element, and the issue I will raise, about conduct in the confines of the courthouse, and particularly the Family Court. Notwithstanding the fact that security and other objective observers and individuals being present, there's a general deterrent aspect to this. People need to be able to come to court and feel that they are safe from this type of behaviour, whether it's directed to the support person and the protected person is - falls within the ambit of that behaviour.
It still requires that, sort of - that general deterrence in the penalty. I will impose a fine today. And I will take into account the plea of guilty, of course, and reduce that fine accordingly. And, of course, he's got no prior record. So I accept that this entirely out of character [sic]. As I say, confined to the particular circumstances of that day.
[31] ts 6 - 7, 2 June 2021.
Having made these remarks the magistrate asked the prosecutor whether there was anything further that she wanted to say. The prosecutor answered, 'No'.[32]
[32] ts 7, 2 June 2021.
The magistrate then made the following further comments to the appellant:[33]
Look, …, I've made those observations about the way you need to conduct yourself when you're attending court proceedings. There is a restraining order in place. I appreciate that court proceedings are an emotional time. But all parties need to feel that they can come to a courthouse. And that's whether it's outside the precinct of the court or within the corridors or within the courtroom itself. So those issues, property dispute resolutions or settlements about children can be settled in an appropriate manner.
[33] ts 7, 2 June 2021.
The magistrate then proceeded to impose the $1000 fine and make the spent conviction order. His Honour again repeated that he considered the facts of the offence to be 'confined to that particular day' and that the appellant was unlikely to repeat the behaviour in the future.[34]
[34] ts 7, 2 June 2021.

Particulars of the grounds of appeal

It is against the above background that the appellant's ground of appeal is particularised in the following terms:
(a)The prosecution notice alleged '[the appellant] was bound by [the Order] and breached the order'. The prosecution notice provided no particulars for the alleged breach.
(b)After the appellant entered his plea of guilty the prosecutor read aloud the statement of material facts. Those facts incorporated conduct, which if admitted, comprised several bases for a breach of [the Order].
(c)During the plea in mitigation counsel for the appellant submitted that 'the breach' was that the appellant 'approached' the protected person. Through his counsel, the appellant expressly denied that he breached the [Order] on any other basis. The prosecutor did not challenge the factual basis for the plea of guilty.
(d)Part A of the [Order] relevantly provided that the appellant, 'must not … approach within 20 metres of the person protected.' Part B of the [Order] relevantly provided that the appellant 'will not breach the orders in Part A if he … participates in and attends court events in proceedings in which the person protected and [the appellant] are parties or witnesses, and to comply with any order or direction of a Court'.
(e)On the admitted facts, both the appellant and the protected person were in the Family Court of Western Australia where they had been parties participating in a court event. After leaving the court room the appellant remained within 20 metres of the person protected and did not move outside of a 20 metre radius of the person protected before he approached her. As a matter of law, the appellant did not 'approach' the person protected and thereby did not breach the [Order].

The relevant terms of the Order

Part A of the Order relevantly provided that the appellant must not 'except as set out in Part B…approach within 20 metres of the [complainant]' (Part A order).
Part B of the Order relevantly provided that the appellant will not breach the orders in Part A if the appellant 'participates in and attends court events in proceedings in which the [complainant] and the [appellant] are parties or witnesses, and to comply with any order or direction of a Court' (Part B exemption).

Appeal against conviction after guilty plea - applicable legal principles

Section 8(2) of the CAA permits an appeal against a decision convicting a person of an offence even if the decision was made after a plea of guilty to the offence (as in the present case).
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[35]
[35] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 137; Vella v The State of Western Australia [2006] WASCA 129 [26]; Lawson v The State of Western Australia[No 2] [2018] WASCA 204 [19]; Tsang v Francis [2021] WASCA 131 [70], [88].
The circumstances in which an appellate court will set aside a conviction based on a plea of guilty on the basis that a miscarriage of justice has occurred cannot be exhaustively stated and are not closed.[36] Nonetheless, there are three well recognised circumstances in which an appellate court will be prepared to set aside a conviction based on a plea of guilty, specifically:
1.where the appellant did not understand the nature of the charge or intend to admit guilt;
2.where upon the admitted facts the appellant could not, in law, have been guilty of the offence; and
3.where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.[37]
[36] Vella v The State of Western Australia [26]; Lawson v The State of Western Australia [29]; Tsang v Francis [89].
[37] Vella v The State of Western Australia [26]; Lawson v The State of Western Australia [19]; Tsang v Francis [71], [89].
As is apparent from the particulars of the ground of appeal, the appellant is relying on the second of the above identified well recognised circumstances.

Submissions of the parties - summary

The appellant's submissions can be summarised as follows:
1.The 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;
2.He did not 'approach within 20 metres of [the complainant]' within the meaning of the Part A order because he was from the time that the property dispute resolution proceedings were adjourned for the lunch break and at all material times thereafter within a 20 m radius of the complainant and did not move from outside to inside a 20 m radius of the complainant;
3.If contrary to the submission made in point 2 above he did 'approach within 20 metres of the [complainant]' within the meaning of the Part A order, the Part B exemption applied to his conduct with the result that he did not breach the Part A order;
4.If contrary to the submission made in point 3 above the Part B exemption did not apply to his conduct, he had a defence to the charge under s 62(1)(ca) of the ROA; and
5.For any one of the reasons specified in points 2, 3 and 4 above, he was not in law guilty of the offence with the consequence that the decision of the magistrate convicting him of the offence has occasioned a substantial miscarriage of justice.

In making the above submissions, particularly those relating to the Part A order and the Part B exemption, the appellant relies upon aspects of the decision of the Court of Appeal in Tsang v Francis.[38]
[38]Tsang v Francis [2021] WASCA 131 (Tsang v Francis).
The appellant's submission relating to s 62(1)(ca) is not encompassed within the particulars of his ground of appeal. However, the submission was disclosed in the appellant's written outline of submissions filed in advance of the appeal hearing and was fully responded to by the respondent in his written submissions filed in advance of the appeal hearing and by his counsel during the appeal hearing. Accordingly, the respondent was not prejudiced by the appellant's failure to disclose the submission in the particulars of the ground of appeal. I will therefore deal with the submission notwithstanding that it is not encompassed within the particulars of the ground of appeal.
The respondent's submissions can be summarised as follows:
1.The Part A order should not be construed as meaning that the appellant could only breach the order by approaching the complainant if he moved from outside to inside a radius of 20 m from the complainant;
2. There is, in any event, no material before the court which provides a basis for concluding that the appellant was, at the time that he commenced to approach the complainant, already inside a radius of 20 m from the complainant;
3.The Part B exemption does not apply to the appellant's conduct in approaching the complainant; and
4.The defence in s 62(1)(ca) of the ROA does not apply to the appellant's conduct in approaching the complainant.
In making the above submissions the respondent also relies on aspects of the decision in Tsang v Francis.

Application to admit additional evidence

On 18 January 2022, the day before the appeal hearing, the appellant filed an application pursuant to s 40(1)(e) of the CAA to admit additional evidence on the appeal. I heard the application at the beginning of the hearing of the appeal. The additional evidence that the appellant ultimately sought to admit was comprised of the following:
1.An affidavit affirmed by Ms Elyse Louise Smith, a lawyer employed by his solicitors; and
2.Pages 42 and 43 of the transcript of the property dispute resolution proceedings (property dispute resolution transcript).
In her affidavit Ms Smith deposes that on 12 January 2022 she attended the Family Court of Western Australia (Family Court) for the purpose of taking measurements in the foyer area on level 5 of the court building. She deposes that she used the 'measure' application on her Apple iPhone to measure the relevant distances in the foyer. She annexes to her affidavit a sketch drawn by her of the layout of level 5 to which the public has access showing the relevant distances that she measured.
The property dispute resolution transcript reveals what occurred during the proceedings in the moments leading up to the luncheon adjournment of the proceedings. The transcript reveals, in essence, the following:
1.The proceedings took place before a judicial officer (it is common ground between the parties that the judicial officer was a magistrate);
2.The appellant was legally represented at the proceedings;
3.The complainant appeared in person at the proceedings;
4.The proceedings were concerned with an application by the complainant relating to her ability to continue to make mortgage repayments on a property; and
5.At about 12.25 pm the magistrate adjourned the proceedings until 'after lunch' to give the complainant the opportunity to talk to the appellant's counsel and/or his instructing solicitor outside of the courtroom 'about the sorts of arrangement that [had] been raised in court today'.
The respondent did not oppose the application to admit the additional evidence.
Having heard the appellant's application, I decided that I would receive Ms Smith's affidavit and the property dispute resolution transcript on a provisional basis but reserve my decision as to whether to allow the application to admit the evidence on the appeal. I adopted this pragmatic approach so as to enable the appellant to advance at the appeal hearing all of the arguments that he wanted to advance in support of his appeal.
Given the approach that I adopted to the appellant's application to admit the additional evidence, and the legal principles to be applied in determining such applications to which I will refer in due course, I propose to proceed to deal with the merits of appeal in light of the additional evidence and then, having done this, to return to the question whether the application should be allowed.

The decision in Tsang v Francis[39]

[39] The Court of Appeal delivered its decision on 27 July 2021, approximately two months after the appellant was convicted of the offence.

As I have indicated, in advancing their respective submissions both parties rely, to varying extents, on aspects of the decision of the Court of Appeal in Tsang v Francis. It is therefore necessary for me to at this point make more detailed reference to the relevant aspects of the decision.
The appellant in Tsang v Francis was convicted on his plea of guilty of breaching a FVRO 'by approaching and communicating with the protected person' contrary to s 61(1) of the ROA.[40] Part A of the FVRO provided, relevantly, that the appellant must not 'except as set out in Part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text message or any other electronic means [or] approach or remain within 25 metres of the Person Protected'.[41] Part B of the FVRO provided, relevantly, that the appellant would not breach the orders in Part A if the appellant was to 'participate in and attend court events in proceedings in which the Person Protected and [the appellant] are parties or witnesses, and to comply with any order or direction of a Court'.[42]
[40] Tsang v Francis [1] - [2]. The further references to 'the appellant' appearing in this section of my judgment dealing with the decision in Tsang v Frances are references to the appellant in Tsang v Francis, not the appellant in the present appeal.
[41] Tsang v Francis [18].
[42] Tsang v Francis [19].
The facts of the offence were as follows.[43]
[43] Tsang v Francis [23] - [25].
The appellant and the protected person had participated in court proceedings in the Midland Magistrates Court. After the court proceedings had been completed the appellant entered the court's registry. The protected person and her associate entered the registry behind the appellant. The protected person's associate made a comment to the appellant about having photos of the appellant which made the appellant angry. The appellant turned around, walked back towards the protected person and her associate and made a comment about another witness to the protected person. When the appellant was later interviewed by the police he stated that he thought that he could talk to the protected person in the courthouse and that he had made a genuine mistake.
The appellant applied to the General Division of this court for leave to appeal against his conviction on the ground that there had been a miscarriage of justice. The application for leave to appeal was heard by Hill J. Her Honour granted the appellant leave to appeal but dismissed the appeal.[44] The appellant applied for leave to appeal against Hill J's decision. The appellant's grounds of appeal included a ground that Hill J had erred in finding that the exemption contained in Part B of the FVRO did not enable the appellant to approach the protected person outside the court hearing room but within the court building.[45] The appellant's grounds of appeal also included a ground that Hill J had erred in finding that s 62(1)(ca) of the ROA did not provide the appellant with a defence to the charge when he committed the act 'in the court building but not during the course of any court hearing'.[46]
[44] Tsang v Francis [2019] WASC 290. Hill J delivered her decision on 13 August 2019.
[45] Tsang v Francis [61].
[46] Tsang v Francis [61].
The Court of Appeal granted the appellant leave to appeal and allowed his appeal, although not on either of the grounds specified in the preceding paragraph.
In dealing with the ground of appeal relating to the exemption contained in Part B of the FVRO, the court held that the principles that applied in the context of contempt proceedings to alleged breaches of an injunction are to be applied, by analogy, in construing a FVRO in the context of proceedings under s 61(1) of the ROA against a person who is bound by the FVRO and who has allegedly committed an offence against s 61(1) by breaching that order.[47] The court identified the principles that applied in the context of contempt proceedings to alleged breaches of an injunction to be as follows:[48]
1.The language of the injunction should be sufficiently precise to admit of the ready or convenient enforcement of the court's order;
2.The language of the injunction should not be ambiguous, uncertain or indefinite and the court's order granting the injunction must convey to the person bound by the injunction precisely what it is that they may or may not do;
3.The court's order granting the injunction should be so expressed that the person to whom it is directed should be able, by reading it and without more, at once to know what it is that they must do, or refrain from doing, in order to comply with its terms;
4.In general, a court will not punish a person for contempt of court, consequent upon the person having breached the injunction, if the terms of the order granting the injunction are unclear or ambiguous; and
5. However, ordinarily a court will punish a person for contempt of court, consequent upon the person having breached the injunction, if any lack of clarity or any ambiguity had no real risk of misleading the person bound by the order or if the lack of clarity or the ambiguity was not such that, on one reasonable view of the order, the person bound was not in breach.
[47] Tsang v Francis [109].
[48] Tsang v Francis [108].
A little later in its reasons but still in the context of dealing with the ground of appeal relating to the exemption contained in Part B of the FVRO, the court turned to consider the question whether the appellant had breached Part A of the FVRO. In relation to this issue the court said the following:[49]
[49] Tsang v Francis [116] - [122].
We are satisfied that the ordinary and natural meaning of the phrase 'approach or remain within 25 metres of the Person Protected' in Part A is that the qualification 'within 25 metres of the Person Protected' applies to 'approach' as well as 'remain'.
Part A of the FVRO directed the appellant, in essence, that he must not, except as set out in Part B:
(a)communicate with the protected person by any means whatsoever including SMS or text message or any other electronic means;
(b)attempt to communicate with the protected person by any means whatsoever including SMS or text message or any other electronic means;
(c) approach within 25 m of the protected person; or
(d) remain within 25 m of the protected person.
The meaning of the word 'communicate' depends upon and takes colour from the context in which it is used. It is plain that in Part A of the FVRO (having regard to the status of the FVRO as an order made under the Restraining Orders Act and the objects of the Act) the word 'communicate' includes, relevantly for present purposes, contacting, speaking with, writing to and interacting with the protected person.
There is no doubt that, on the facts admitted by the appellant, on 11 April 2018 in the Midland Magistrates Court registry the appellant communicated with both the protected person and Ms Barnett by saying 'tell Maddie thanks a lot for going against me'. The appellant therefore communicated with the protected person, on that occasion, within Part A of the FVRO.
The meaning of the word 'approach' also depends upon and takes colour from the context in which it is used. It is apparent that in Part A of the FVRO (having regard to the status of the FVRO as an order made under the Restraining Orders Act, the objects of the Act and the use of the word 'approach' as part of the phrase 'approach … within 25 metres of the Person Protected') the word 'approach' includes, relevantly for present purposes, the appellant intentionally moving from outside to inside a radius of 25 m from the protected person.
The facts asserted as part of the respondent's case and the facts admitted by the appellant reveal that, on 11 April 2018 in the Midland Magistrates Court registry, the appellant did not 'approach' the protected person by intentionally moving from outside to inside a radius of 25 m from the protected person. The respondent and the appellant accept that the appellant entered the registry before the protected person and Ms Barnett. It was the protected person and Ms Barnett who approached within 25 m of the appellant by entering the registry. The appellant did not approach within 25 m of the protected person, on that occasion, within Part A of the FVRO. At all material times, the appellant was within 25 m of the protected person as a result of the protected person and Ms Barnett having approached within 25 m of the appellant by entering the registry. That circumstance was brought about by the actions of the protected person and Ms Barnett and not by any action of the appellant.
As we have mentioned, an aspect of the prohibition in Part A of the FVRO is that, except as set out in Part B, the appellant must not 'remain' within 25 m of the protected person. The facts asserted as part of the respondent's case and the facts admitted by the appellant suggest that, on 11 April 2018 in the Midland Magistrates Court registry, the appellant did 'remain' within 25 m of the protected person by moving towards and speaking to the protected person and Ms Barnett. The appellant did not leave immediately when the protected person and Ms Barnett entered the registry. However, it is unnecessary to pursue this point because the prosecution notice charged the appellant with breaching the FVRO 'by approaching and communicating with the protected person'. The prosecution notice did not charge the appellant with breaching the FVRO by remaining within 25 m of the protected person.
After making the above findings the court turned to consider whether the appellant's communication with the protected person in the registry was within the exemption contained in Part B of the FVRO. In relation to this issue the court said the following:[50]
The phrase 'to comply with any order or direction of a Court' may be put to one side because the appellant did not communicate with the protected person in the registry to comply with any order or direction of a Court.
On 11 April 2018, the appellant participated in and attended a hearing in the Midland Magistrates Court in proceedings in which the protected person and the appellant were parties, namely a hearing before a Magistrate in civil proceedings the appellant had commenced against the protected person.
The critical issue is whether the appellant communicated with the protected person in the registry while the appellant was '[participating] in and [attending] court events' in those proceedings, within the exemption in Part B.
We are satisfied that the phrase 'participate in and attend court events' in Part B (having regard to the FVRO as a whole, the status of the FVRO as an order made under the Restraining Orders Act and the objects of the Act) means participate in or attend 'court events'. It is not necessary that any conduct of the appellant that would otherwise constitute a breach of the orders in Part A have occurred while the appellant was participating in and attending 'court events'. That is apparent from the nature of the prohibitions in Part A. A person may physically attend a 'court event' without participating in the event and a person may participate in a 'court event' remotely by electronic means without physically attending. Also, as we have mentioned, the prohibitions in Part A include approaching within 25 m of the protected person and remaining within 25 m of the protected person. At all material times, including when the FVRO was made, it was obvious (or, at least, objectively in contemplation) that if it was necessary for the appellant and the protected person to attend a court hearing in which they were parties, then it would be likely (if not inevitable) that they would be within 25 m of each other after they had entered the court building and before the particular proceeding in which they were participating had actually begun. The proper construction of Part B is that the exemption is engaged in relation to the appellant 'approaching' or 'remaining' within 25 m where, relevantly, the appellant and the protected person are participating in or attending 'court events' in which they are parties.
The expression 'court events' in Part B is not defined in the FVRO or in the Restraining Orders Act. The ordinary and natural meaning of the word 'event' is a thing or an occasion that happens or takes place, especially a thing or an occasion of importance. See Macquarie Dictionary (Online Version). It is of significance that Part B refers to 'court events' and not to 'court hearings'. The notion of a 'court event' has a broader connotation than a 'court hearing'. The use of the word 'event' in conjunction with the word 'court', in the context of the FVRO as a whole, connotes an occasion that has been arranged by or with the court in relation to pending proceedings including, for example, a hearing in open court before a judge or magistrate, a court ordered or sponsored mediation before a judicial officer or a court appointment with a registrar.
In our opinion, a communication by the appellant to the protected person will be within the exemption in Part B if the communication occurs while they are participating in a 'court event'. That is, it will be permissible for the appellant to communicate with the protected person where the communication occurs during an occasion that has been arranged by or with the court in relation to pending proceedings including, for example, a hearing in open court, a court ordered or sponsored mediation or a court appointment. That is apparent from the nature of a 'court event', as we have explained it. In particular, at all material times, including when the FVRO was made, it was obvious (or, at least, objectively in contemplation) that if the appellant and the protected person attended a 'court event' in which they were parties, then it would be likely that some form of communication between them would be necessary during the court event, especially if they were self-represented. However, at no material time was it obvious or even objectively in contemplation that communication between the appellant and the protected person would be necessary before or after the 'court event'. Compare the position in relation to the prohibition against approaching within 25 m of the protected person or remaining within 25 m of the protected person. See [128] above.
[50] Tsang v Francis [125] - [130].
Accordingly, the court found that Hill J had erred in finding that the appellant had breached the FVRO by 'approaching' the protected person in the registry.[51] However, the court found that Hill J was correct in finding that the appellant breached the FVRO by 'communicating' with the protected person in the registry and also in finding that the exemption contained in Part B of the FVRO did not apply to the communication.[52]
[51] Tsang v Francis [131].
[52] Tsang v Francis [132].
With respect to the appellant's ground of appeal relating to s 62(1)(ca) of the ROA the court, after making detailed reference to principles of statutory construction,[53] said the following:[54]
By s 62(1)(ca), it is a defence to a charge under s 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was 'attending a court hearing in proceedings under this Act or under any other written law'.
The term 'court hearing' in s 62(1)(ca) is not defined in the Restraining Orders Act. The ordinary and natural meaning of the term 'court hearing' is a hearing ordered or listed by a court before a judicial officer in pending proceedings.
It is unnecessary, in the present case, to consider whether the appellant had a defence under s 62(1)(ca) in relation to his act in 'approaching' the protected person because we have concluded, in considering ground 3, that the appellant did not approach the protected person, on the occasion in question, within the meaning of Part A of the FVRO.
As to the appellant's 'communication' with the protected person in the Midland Magistrates Court registry, we are satisfied that 'in carrying out the act', within s 62(1)(ca) (that is, in making the communication), the appellant was not 'attending a court hearing' in any proceedings because the hearing before the Magistrate on 11 April 2018 had been completed before the appellant, the protected person and Ms Barnett entered the registry and the appellant made the communication. The appellant's communication to the protected person was not made while the appellant was attending that court hearing.
[53] Tsang v Francis [137] - [148].
[54] Tsang v Francis [150] - [153].

Accordingly, the court found that this ground of the appellant's appeal had not been made out.

The facts of the appellant's offence

Given the appellant's argument relating to the proper interpretation of the Part A order it is necessary, before addressing the argument directly, to deal with the question whether the appellant's offence was, as the appellant submits, found by the magistrate to be 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 respondent submits that there is no material before me which permits me to conclude that the appellant was, at the time that he started to approach the complainant, already inside a radius of 20 m from the complainant. The respondent's submission in this respect is founded on the contention that the appellant's counsel's statement to the magistrate that the appellant was 'some 10 metres away, just waiting by the lift' does not give an 'indication as to what the 10 metre distance was in relation to'.[55]
[55] Respondent's Outline of Submissions dated 31 December 2021, par 36.
In my view the respondent's submission is misguided. The relevant question, given the appellant's argument relating to the proper interpretation of the Part A order, is not whether there is material before me which permits me to conclude that the appellant was at all times within a radius of 20 m from the complainant, but rather, as I have stated, whether the magistrate found that the appellant's offence was comprised of the appellant, 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. Further, and in any event, I do not accept the contention that the appellant's counsel's statement to the magistrate that the appellant was 'some 10 metres away, just waiting by the lift' did not give 'an indication as to what the 10 metre distance was in relation to'. In my view it is obvious that the appellant's counsel, in referring to the 10 m distance, was referring to the distance that existed between the appellant and the complainant at the point in time at which the appellant, in response to the provocative comment made by the complainant's support person, commenced to approach the complainant and the support person. No other interpretation of the appellant's counsel's statement is reasonably open or could reasonably have been open to the magistrate. In short, the appellant's counsel clearly conveyed to the magistrate that the appellant's version of events was that he was approximately 10 metres away from the complainant at the time that he commenced to approach the complainant and her support person in contravention of the Part A order.
In my opinion the only inference that is reasonably available to be drawn from the magistrate's sentencing remarks read in the context of the appellant's counsel's statement of the appellant's version of events, the prosecutor's failure to challenge any aspect of the appellant's version of events and the magistrate's failure to question any aspect of the appellant's version of events, is that the magistrate accepted and found that the conduct the subject of the offence was as contended for by the appellant; that is, was comprised of the appellant, from less than 20 m away, approaching the complainant at the same time as he approached the support person in response to a provocative comment made to him by the support person.[56] It follows that it is also my opinion that the magistrate did not find that the appellant committed the offence by shouting aggressively and gesturing at the complainant at the time that he approached her and the support person, or by gesturing towards the complainant with his middle finger as he entered a lift within the Family Court building.

Did the appellant 'approach within 20 metres' of the complainant in contravention of the Part A order?

[56] As I have previously stated, during his plea in mitigation before the magistrate the appellant's counsel stated that there were four people between the appellant and the complainant being two lawyers and two support people. Given that there were two support people, and although given the magistrate's findings nothing turns on the point, it is, I think, reasonable to infer that the person referred to by the prosecutor in her statement of the facts of the offence as the 'support person's husband' was in fact the support person who made the provocative comment.

On the facts of the offence as found by the magistrate the appellant did not, in committing the offence, move from outside to inside a radius of 20 m from the complainant. When the appellant responded to the provocative comment of the complainant's support person and approached the support person and the complainant he was approximately 10 m from the complainant, that is, was already within 20 m of her.
The appellant submits that the words 'approach within' should, in light of the principles identified in Tsang v Francis that are, by analogy, to be applied in construing a FVRO in the context of proceedings brought against a person under s 61(1) of the ROA, be interpreted narrowly. The appellant submits that the Part A order does not prohibit him from approaching the complainant but rather from approaching the complainant 'within' the specified distance. The appellant submits that the words 'approach within' should be construed to mean that he must remain outside a radius of 20 m of the complainant. The appellant therefore submits that because he did not, on the facts of the offence as found by the magistrate, move from outside to inside a radius of 20 m from the complainant, he did not 'approach within' 20 m of the complainant in contravention of the Part A order. In making his submissions as to the proper construction of the Part A order the appellant purports to draw support from the interpretation given to the corresponding provision of the FVRO that was the subject of the court's consideration in Tsang v Francis.
The respondent submits that by definition the words 'approach within' can properly be interpreted so as to encompass both a person moving from outside to inside a 20 m radius and a person moving inside a 20 m radius. The respondent submits that the decision in Tsang v Francis does not stand for the proposition that a person bound by an FVRO can never breach a term of the FVRO prohibiting them from 'approaching within 20 metres' of a protected person if they are already within a 20 m radius of the protected person at the time that they initially approach the protected person. The respondent submits that the meaning of the words 'approach within' depends upon, and takes colour from, the context in which the words are used.
I do not accept the appellant's submissions.
With respect to the appellant's reliance on the statements of the court in Tsang v Francis I make the following points.
First, in Tsang v Francis the court stated that it was, having regard to, among other matters, 'the use of the word "approach" as part of the phrase "approach … within 25 metres of the Person Protected"', apparent that in Part A of the FVRO 'the word "approach" includes, relevantly for present purposes, intentionally moving from outside to inside a radius of 25 m from the protected person' (emphasis added). It is therefore tolerably clear that the court was not purporting to provide an exhaustive interpretation or definition of the word 'approach' as part of the phrase 'approach…within 25 metres of the Person Protected' that would apply in all circumstances. That is, the court was not purporting to state that the only circumstance in which a person can 'approach within 25 metres of the Person Protected' is where the person intentionally moves from outside to inside a radius of 25 m of the protected person.
Second, and following on from the above made first point, the court's interpretation of the word 'approach' as part of the phrase 'approach…within 25 metres of the Person Protected' must be considered in light of the facts that were before the court in the case. The court interpreted the word 'approach' as including intentionally moving from outside to inside a radius of 25 m from the protected person against a factual background in which it was the protected person who had approached within 25 m of the appellant. The circumstance of the appellant being within 25 m of the protected person was brought about by the protected person approaching the appellant.
The facts of the present case are, of course, very different. It was the appellant who, while already within a radius of 20 m of the complainant, approached the complainant and the support person so that he was closer to the complainant than he had been at the time that the provocative comment was made by the support person.
Third, in Tsang v Francis the relevant provision of the FVRO, unlike the Part A order, prohibited the person bound by the order from not only approaching within 25 m of the protected person but also from remaining within 25 m of the protected person. Thus the court's interpretation of the word 'approach' as part of the phrase 'approach…within 25 metres of the Person Protected' occurred in the context of a provision that contained the additional prohibition on the person bound by the order 'remaining within 25 metres of the Person Protected', which prohibition the court appeared to construe as preventing the person bound by the order from moving closer to the protected person even though they were already within a radius of 25 m of the protected person.
In short, in light of the above made three points I do not think that the statements made by the court in Tsang v Francis should be read as authority for the proposition that the phrase 'approach within [specified distance] of the Person Protected' must always be interpreted as meaning only approaching from outside to within a radius of the specified distance.
I come back then to the Part A order.
Courts should interpret restraining orders according to their plain and ordinary meaning and should be slow to imply additional words or restraints into the orders.[57] Such an approach to the interpretation of a restraining order is, of course, entirely consistent with the principles identified in Tsang v Francis that are, by analogy, to be applied in construing a FVRO in the context of proceedings brought against a person under s 61(1) of the ROA.
[57] Horwarth v Sharples [2018] WASC 315 [18] - [19].
The word 'approach' is not defined in the Order or in the ROA. The Australian Concise Oxford Dictionary relevantly defines 'approach' to mean 'come near or nearer in space or time'.[58] Similarly, the Macquarie Dictionary relevantly defines 'approach' to mean 'to come nearer or near to … draw near … the act of drawing near'. [59]
[58] Australian Concise Oxford Dictionary (6^th ed), page 64.
[59] Macquarie Dictionary (7^th ed), page 68.
The word 'within' is also not defined in the Order or in the ROA. The Australian Concise Oxford Dictionary relevantly defines 'within' to mean 'inside … to, at, or on the inside … internally … not beyond or exceeding … not further off than'.[60] The Macquarie Dictionary relevantly defines 'within' as 'in or into the interior or inner part, or inside … in or into the interior or the parts of space enclosed by, or inside … at or some point not beyond, as in length or distance; not farther than: within a radius of a kilometre … at or to some amount or degree not exceeding'.[61]
[60] Australian Concise Oxford Dictionary (6^th ed), page 1656.
[61] Macquarie Dictionary (7^th ed), page 1725.
In my opinion, taking all of the above definitions into account, the words 'approach within' as used in the Part A order should, consistently with the principles identified in Tsang v Francis which are to be applied in construing a FVRO in the context of proceedings brought against a person under s 61(1) of the ROA, be interpreted as encompassing conduct that involves not only intentionally moving nearer the protected person from outside a 20 m radius to inside a 20 m radius, but also conduct that involves intentionally moving nearer the protected person from a position that is already inside a 20 m radius of the person. On the plain, ordinary and clear meaning of the words 'approach within' the fact that a person is already within 20 m of a protected person does not, in my opinion, mean that if the person intentionally moves nearer to the protected person they are not 'approaching within' 20 m of the protected person. They are intentionally moving nearer to the protected person and in doing so they are intentionally moving to a position that is 'within' (that is, inside or not beyond) 20 m of the protected person. It is the approaching within 20 m of the protected person, as opposed to being within 20 m of the protected person, that is prohibited.
In my view my above interpretation of the Part A order is consistent with the objects of pt 1B of the ROA (which deals with FVROs and conduct agreement orders) specified in s 10A(a) and s 10A(b) of the ROA. Indeed, if my interpretation is incorrect the odd result will be that a person who is bound by an order in the terms of the Part A order will be liable for intentionally approaching a protected person from a distance of just outside 20 m to a distance of just inside 20 m, but will not, if they are already within 20 m of the protected person at the time of the commencement of the relevant intentional approach, be liable for intentionally approaching the protected person regardless of how close they get to the protected person. Such a result would, in my view, be clearly inconsistent with the relevant specified objects of pt 1B of the ROA.
For the reasons I have given, I am satisfied 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.
In order to avoid any doubt on the point, I note with respect to my above stated conclusion that it is not submitted by the appellant that any approach by him towards the complainant was unintentional. Indeed any such suggestion was, in response to questioning by me, expressly disavowed by the appellant's counsel during the hearing of the appeal.[62] The appellant's position in this respect is entirely understandable. Although on the facts of the offence as found by the magistrate it can be inferred that the appellant's focus of attention at the time of approaching the complainant was the support person, it is equally clear on the facts as found by the magistrate that in approaching the support person the appellant knew that he was also approaching the complainant. In these circumstances it cannot be sensibly suggested that he did not deliberately or intentionally approach the complainant.
[62] Appeal ts 8 and 19-20, 19 January 2022.

Did the appellant's conduct fall within the Part B exemption?

As is apparent from the decision in Tsang v Francis, the proper construction of the Part B exemption means that in order for the appellant to bring himself within the exemption he must demonstrate that at the time he approached within 20 m of the complainant he and the complainant were participating in or attending a court event in which they were parties. As is also apparent from the decision in Tsang v Francis, a 'court event' for the purposes of the Part B exemption is an occasion that has been arranged by or with the court in relation to pending proceedings.
The appellant submits that the property dispute resolution was a 'court event' as defined by the court in Tsang v Francis. The appellant submits that the property dispute resolution transcript makes clear that during the luncheon adjournment of the property dispute resolution proceedings, and at the suggestion of the presiding magistrate, discussions were to occur between the appellant's lawyer and the complainant with a view to resolving the issue the subject of the proceedings. The appellant submits that it was when his lawyer during the luncheon adjournment asked the complainant if the relevant discussions could occur in the absence of the support person, that the support person made the provocative comment which resulted in him approaching the support person and the complainant. The appellant submits that in these circumstances at the time that he approached the complainant he was both attending and participating in a court event in proceedings in which he and the complainant were parties and to comply with a direction of a court within the meaning of the Part B exemption.
The respondent accepts that the property dispute resolution was a 'court event' for the purposes of the Part B exemption, that is, was an occasion that had been arranged by or with the Family Court in relation to pending proceedings between the appellant and the complainant that were on foot in that court. However, the respondent does not accept that the appellant, in approaching the complainant, was attending or participating in a court event within the meaning of the Part B exemption. The respondent submits that given that the appellant did not approach the complainant for any purpose connected with the property dispute resolution 'at least insofar as that court event was framed by the magistrate's expectations about what would occur during the lunch break',[63] but rather as a result of, and in response to, the provocative comment made by the support person, it cannot be said that at the time of approaching the complainant the appellant was attending or participating in the property dispute resolution. The respondent also makes the point in this context that it is apparent from the property dispute resolution transcript that what was envisaged by the magistrate was that the luncheon adjournment discussions would occur between the appellant's lawyer and the complainant and that the appellant would not be directly involved in the discussions.
[63] Appeal ts 28, 19 January 2022.
Even putting to one side the property dispute resolution transcript, I am satisfied on what is before me that the property dispute resolution was a 'court event' in proceedings in which the appellant and the complainant were parties within the meaning of the Part B exemption. The issue is whether the appellant, at the time of approaching the complainant, was attending or participating in the property dispute resolution.
In my opinion it is clear that the Part B exemption, properly construed, is engaged in relation to the appellant approaching within 20 m of the complainant when the approach occurs as an inevitable or necessary consequence of his attendance at, or participation in, a 'court event' in proceedings in which he and the complainant are parties. This construction of the Part B exemption is consistent with the above cited statements made by the court in Tsang v Francisin relation to the identically worded exemption the subject of consideration in that case.
Immediately before engaging in the conduct the subject of the offence, the appellant was approximately 10 m away from the complainant and was waiting near the lifts in the Family Court building while his lawyer was speaking to the complainant in accordance with the suggestion that had been made by the magistrate. Thus, even if it is assumed that the appellant, in making his way to the lifts, moved nearer to the complainant and therefore 'approached within' 20 m of her, it is clear that his conduct in doing so was an inevitable or necessary consequence of his attendance at the property dispute resolution and consequently was not in contravention of the Part A order. However, the same cannot, in my opinion, be said for the appellant's 'approach' the subject of the offence. The appellant's approach the subject of the offence was not an inevitable or necessary consequence of his attendance at, or participation in, the property dispute resolution. More specifically, the appellant's approach the subject of the offence was not an inevitable or necessary consequence of his lawyer attempting to speak to the complainant in accordance with the suggestion made by the magistrate. Rather, the appellant's approach the subject of the offence occurred in response to the support person's provocative comment and because the appellant was angered by the provocative comment. This is not a case, to pick up on the language used by the court in Tsang v Francis, in which it can be said that at all material times, including when the Order was made, it was obvious (or, at least, objectively in contemplation) that if it was necessary for the appellant and the complainant to attend Family Court proceedings in which they were parties, then it would be likely (if not inevitable) that after they entered the Family Court building and during any breaks in the proceedings the appellant would approach within 20 m of the complainant in the circumstances that he admits he did, that is, in response to a provocative comment made by the complainant's support person.Accordingly, it cannot, in my opinion, be said that when the appellant approached the complainant he was attending a court event or participating in a court event within the meaning of the Part B exemption.

For the reasons I have stated, I am not persuaded that the conduct engaged in by the appellant fell within the Part B exemption.

Did the appellant have a defence under s 62(1)(ca)?

Section 62(1)(ca) provides:
(1)It is a defence to a charge under section 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was -
(ca)attending a court hearing in proceedings under this Act or under any other written law…
The property dispute resolution was not a proceeding under the ROA. Accordingly, for the appellant to have had a defence under s 62(1)(ca) he must have been in a position to satisfy the magistrate that in carrying out the act that constituted the offence, that is, in approaching within 20 m of the complainant, he was attending a court hearing in proceedings under another written law.
As was pointed out by the court in Tsang v Francis, the term 'court hearing' used in s 62(1)(ca) is not defined in the ROA but the ordinary and natural meaning of the term 'court hearing' is a hearing ordered or listed by a court before a judicial officer in pending proceedings.
It is common ground between the parties that the property dispute resolution was a 'court hearing in proceedings under…[a] written law'. In light of the property dispute resolution transcript, I am satisfied that the property dispute resolution was a 'court hearing in proceedings under…[a] written law'.
The appellant submits that in carrying out the act that constituted the offence, that is, in approaching the complainant, he was attending the property dispute resolution within the meaning of s 62(1)(ca). The appellant submits that although the relevant approach occurred during a lunch break the 'court hearing' was, at the time of the approach, ongoing because at that time his lawyer was, in accordance with the suggestion of the magistrate presiding over the property dispute resolution, attempting to speak to the complainant about a possible resolution of the issue the subject of the property dispute resolution. The appellant also points out in this context that his lawyer was attempting to speak to the complainant inside the Family Court building just outside the courtroom and shortly after the magistrate had adjourned the property dispute resolution for the lunch break.
The respondent submits, in reliance on the statements made by the court in Tsang v Francis in relation to the concept of a 'court hearing' for the purposes of s 62(1)(ca), that the relevant court hearing, that is, the property dispute resolution, ended, even if only temporarily, when the magistrate adjourned the hearing for the lunch break. Accordingly, the respondent submits, the appellant was not attending the court hearing at the time that he approached the complainant. The respondent further submits that even if contrary to his primary submission what was occurring between the appellant's lawyer and the complainant at the time that the appellant approached the complainant was a continuation of the 'court hearing', the appellant's approach was not connected with, or related to, the subject matter of the court hearing and therefore cannot be said to have constituted an attendance at the court hearing within the meaning of s 62(1)(ca).
I do not accept the appellant's submissions. Although at the time that the appellant approached the complainant his lawyer was attempting to speak to the complainant in accordance with the suggestion made by the magistrate in relation to the issue the subject of the property dispute resolution, this was not occurring in the courtroom before the magistrate. Rather, the appellant's lawyer was attempting to speak to the complainant during the luncheon adjournment outside of the courtroom in the absence of the magistrate. Therefore, although the appellant was, at the time that he approached the complainant, within the Family Court building in order to attend the property dispute resolution, it cannot, in my opinion, be sensibly contended that in carrying out the act that constituted the offence, that is, in approaching within 20 m of the complainant, the appellant was 'attending a court hearing' within the meaning of s 62(1)(ca).
I find support for my above stated conclusion in the decision in Tsang v Francis. As is apparent from the above cited statements of the court in Tsang v Francis relating to s 62(1)(ca), the court held that the defence created by the section did not apply to the appellant in that case because although his communication with the protected person occurred in the court registry the court hearing had concluded by the time of the relevant communication. Similarly, the property dispute resolution had concluded, albeit temporarily during the luncheon adjournment, at the time that the appellant approached within 20 m of the complainant.
Further, even if contrary to my above expressed conclusion the exchange that was occurring between the appellant's lawyer and the complainant at the time that the appellant approached the complainant was 'a court hearing' within the meaning of s 62(1)(ca), I do not accept that the appellant, in carrying out the act that constituted the offence, was 'attending' the hearing. In my opinion s 62(1)(ca) must, as a matter of common sense, be construed as applying only to the situation in which the attendance at the court hearing that occurs by reason of the carrying out of the act that constitutes the offence is connected with the purpose of the court hearing. Clearly, if the discussions between the appellant's lawyer and the complainant were part of the property dispute resolution 'court hearing', the appellant's 'attendance' at this aspect of the 'court hearing' comprised of him approaching within 20 m of the complainant, was not connected with the purpose of the hearing. Rather, the appellant approached the complainant for the purpose of responding to the provocative comment made by the support person.
For the reasons I have stated I am not persuaded that the appellant, at the time of carrying out the act that constituted the offence, was attending a court hearing within the meaning of s 62(1)(ca). It follows that I am also not persuaded that the appellant had (or has) a defence under s 62(1)(ca).

Application to adduce additional evidence - determination

I turn now to determining the appellant's application made pursuant to s 40(1)(e) of the CAA to admit the additional evidence comprised of the affidavit of Ms Smith and the property dispute resolution transcript.
The general rule as set out in s 39(1) of the CAA is that the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 40(1)(e) of the CAA gives the appeal court the power to admit other evidence on the appeal.
In my opinion it is relatively clear from a review of the relevant authorities that where it is alleged on appeal that a miscarriage of justice occurred because the appellant could not, upon the admitted facts, in law have been guilty of the offence, the question that must be asked in determining an application to admit additional evidence on the appeal is whether the evidence establishes that the alleged miscarriage of justice occurred. If the additional evidence does not establish that the appellant could not, upon the admitted facts, in law have been guilty of the offence the application to admit the evidence should be refused.[64]
[64] See generally Clarke v The State of Western Australia [2018] WASCA 14 [236], [246]; Tsang v Francis [79] - [87], [90] - [93].
In expressing the above opinion I have not overlooked the distinction that appellate courts have traditionally drawn between applications to admit on an appeal against conviction after trial 'fresh' evidence and applications to admit on an appeal against conviction after trial 'new' evidence. However, in a case such as the present where the conviction occurred following a plea of guilty and the allegation is that a miscarriage of justice occurred because the appellant could not, on the admitted facts, in law have been guilty of the offence the distinction traditionally drawn between applications to admit 'fresh' evidence and applications to admit 'new' evidence is not generally applicable.[65] Accordingly, I do not consider that the fact that the additional evidence could have been obtained and adduced at the sentencing hearing and is therefore 'new' as opposed to 'fresh' evidence is of relevance to the determination of the application. This is particularly so given that at least insofar as the evidence comprised of Ms Smith's affidavit is concerned, the issue of the distance between the appellant and the complainant at the time that the appellant commenced to approach the complainant was not seen by anyone involved in the sentencing hearing to be of any possible significance.
[65] Tsang v Francis [82] - [93].
For reasons that are apparent from what I have said in dealing with the individual arguments raised in support of the ground of appeal, I am not satisfied that the additional evidence that the appellant seeks to admit on the appeal, either by itself or in conjunction with the material already before me, establishes that the alleged miscarriage of justice occurred. I therefore refuse the application to admit the additional evidence.

Application for an extension of time - determination

In his affidavit sworn in support of the appellant's application for an extension of time within which to appeal Mr Perrella deposes as follows:
1.He first met with the appellant on 4 August 2021. At the time of this meeting the appellant did not have the certified prosecution notice for the offence or the transcript of the hearing that took place in the Magistrates Court on 2 June 2021. The appellant instructed him to provide advice on the prospects of him successfully appealing against his conviction;
2.Immediately after his first meeting with the appellant he telephoned Mr Gerald Yin who was the counsel who had acted for the appellant during the hearing on 2 June 2021. Mr Yin provided him with background information and confirmed that his advice to the appellant to plead guilty to the charge was based on his understanding of the law as it stood prior to the decision in Tsang v Francis. Mr Yin confirmed that he had alerted the appellant to the existence of the decision in Tsang v Francis 'very soon' after the decision had been delivered. Mr Yin confirmed that he had advised the appellant to seek independent legal advice regarding appealing against his conviction for the offence;
3.On 6 August 2021 the appellant executed a Costs Agreement with his firm;
4.On 16 August 2021 the appellant deposited funds into his firm's trust account;
5.Prior to drafting his opinion on the prospects of the appellant successfully appealing against his conviction he considered it necessary to view the closed-circuit television footage of the incident the subject of the offence (footage);
6.The appellant's family lawyer arranged for him to view the footage at the registry of the Family Court;
7.On 25 August 2021 he attended the registry of the Family Court and viewed the footage;
8.Thereafter the appellant, through his family lawyer, requested him to provide his opinion as to the prospects of successfully appealing against his conviction as soon as possible because the appellant was concerned about the difficulty with the court granting an extension of time;
9.Despite his firm requesting the Magistrates Court to provide the transcript of the 2 June 2021 hearing soon after the appellant had deposited funds into his firm's trust account, the transcript was not provided to his firm until 7 September 2021;
10.On Friday 10 September 2021, after reviewing the transcript, he provided written advice to the appellant regarding his prospects of successfully appealing against his conviction; and
11.On 13 September 2021 the appellant, through his family lawyer, instructed him to file the appeal notice without delay.
As I have already indicated, the decision in Tsang v Francis was delivered on 27 July 2021. Thus, it is apparent from Mr Perrella's affidavit that within days of the appellant being made aware of the decision in Tsang v Francis (which ultimately formed the central basis for at least the aspect of his appeal relating to the Part A order) the appellant contacted Mr Perrella in relation to the possibility of appealing against his conviction for the offence. It is also apparent from Mr Perrella's affidavit that save for the slight delay (10 days) that occurred between the appellant signing the Costs Agreement with his firm and the appellant depositing funds into his firm's trust account, the matter was from the time of the appellant's initial contact with him progressed as expeditiously as the circumstances allowed.
Having regard to the fact that the central basis for at least one aspect of the appellant's appeal, specifically the decision in Tsang v Francis, did not come into existence until the appeal period had expired, to the fact that once the decision in Tsang v Francis was delivered the necessary steps towards filing the application for leave to appeal were in an overall sense taken expeditiously, and to the fact that the respondent will not be prejudiced if the application for an extension of time is granted, I am satisfied that exceptional reasons for granting the application for an extension of time within which to appeal have been established. Accordingly, I would allow the application.

Conclusion

For the reasons I have given I am not satisfied that the magistrate's decision convicting the appellant of the offence occasioned a miscarriage of justice. Accordingly, although I would grant leave to appeal the appeal must be dismissed.
I would make orders in the following terms:
1.The application to admit additional evidence on the appeal is dismissed;
2.The application for an extension of time within which to appeal is allowed;
3.The application for leave to appeal is allowed; and
4.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
28 JANUARY 2022

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