Owen v Jilba - [2002] WASCA 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: OWEN -v- JILBA [2002] WASCA 283

CORAM: WHEELER J

HEARD: 29 JULY 2002

DELIVERED : 17 OCTOBER 2002

FILE NO/S: SJA 1046 of 2002

BETWEEN: CAREY DAVID OWEN
Appellant
AND
BRENDA MERCIE JILBA
Respondent

Catchwords:

Restraining Orders - Subjective nature of intimidation - Relevance of context and background

Restraining Orders - Whether it is open to restrain conduct which is unlawful - Meaning of "lawful activities and behaviour"

Legislation:

Restraining Orders Act (WA) 1997, s 13, s 36

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr N C Monahan
Respondent: Mr P G Giudice

Solicitors:

Appellant: State Crown Solicitor
Respondent: George Giudice Law Chambers

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

Nil

Case(s) also cited:

Farrell v Farrell [2000] WASCA 252
Hickey v Fallows, unreported; SCt of WA; Library No 930122; 9 March 1993
Horsman v Breese [2000] WASCA 244
McKenzie v Picken [2002] WASCA 113
Michael v Potger [2002] WASCA 6
Taikato v The Queen (1996) 186 CLR 454

WHEELER J: On 31 January 2001 a misconduct restraining order was made against the respondent in the Geraldton Court of Petty Sessions which nominated the protected person as Wendy Joy Parker and included a restraint to the effect that the respondent should not "behave in an intimidatory or offensive manner towards the person protected". The order was served on the respondent and was in force in August 2001. On 23 August 2001 the respondent was charged with an offence under s 61(2) of the Restraining Orders Act 1997 ("the Act"). The complaint alleged that the relevant offence was:-
"On 21 August 2001 at Utakarra [the respondent] having been personally served with a misconduct restraining order ... breached that order by intimidating the applicant, Wendy Joy Parker."
The complaint was heard, together with another charge which is not material to this matter, on 5 and 6 March 2002 in the Geraldton Court of Petty Sessions. The relevant conduct was outlined to his Worship, in an exchange which went as follows:-
"PROSECUTOR: The alleged facts, your Worship; that the restraint order prevents the defendant ... doing any of the acts mentioned prior, your Worship, and it will be alleged that on 21st August ... the defendant has driven a motor vehicle along Goodman Street, and crossed over to the incorrect side of the road, and went past the complainant's house and – and basically intimidated the complainant who was at that – in the front yard of that house, and after she's finished this, your Worship, she's remained in the vehicle and sped up and driven off;
HIS WORSHIP: How did she intimidate him [sic: her]? By driving past?
PROSECUTOR: By crossing to the incorrect side of the road, your Worship – completely to the incorrect side of the road; and, basically, staring out - - staring at the complainant. He [sic: she] was in the front yard. The complainant felt intimated ... and I believe she will give evidence to this fact when she gives her evidence in court."
Evidence was led on behalf of the prosecution from five witnesses. It appeared that there had been some history between the complainant and the respondent, and the complainant's evidence was certainly to the effect that she subjectively felt very upset and intimidated.
Counsel for the respondent made a submission of no case to answer which was ultimately accepted by the learned Magistrate. It is unfortunately the case that due to a failure of the recording equipment, his Worship's reasoning is impossible to follow, large portions of it being represented in the transcript only by the word "(indistinct)". However, the response of the Prosecutor and the comments of counsel for the respondent provide some clue as to his Worship's two principal concerns.
It appeared that his Worship considered that conduct which was alleged to be "intimidating", or perhaps "intimidatory" was conduct which would constitute a potential offence under the Police Act. It is not clear what section of the Police Act his Worship had in mind, and although some intimidating conduct may fall under those provisions of the Police Act directed at preventing a breach of the peace, it seems to me unlikely that all intimidating conduct would fall within the ambit of that Act. However, proceeding from that premise, his Worship considered that an order which restrained the respondent from behaving in an intimidatory or offensive manner was not a restraint which could lawfully be imposed pursuant to the Act, for the reason that s 36 provides, in subs (1), that in making a misconduct restraining order "a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent [various types of behaviour]". His Worship took the view that an order which purported to restrain unlawful conduct did not, therefore, fall within the scope of that section.
His Worship also appeared concerned, in my view correctly, with the subjective nature of the intimidation alleged in the complaint. The issue which concerned his Worship was that the restraint was on conduct of an intimidating nature, which would appear at first blush to refer to conduct which is objectively intimidatory, while both the complaint and the outline of the case as opened by the prosecutor seemed to direct attention only to the subjective experience of the protected person. While the two will generally coincide, it is self‑evident that not all conduct which is experienced by a person as intimidating will be regarded as intimidatory from the point of view of an objective observer. The person who feels intimidated may be hypersensitive or may simply misunderstand the nature of the conduct.
His Worship's concern in relation to the reference to the subjective experience of the protected person was no doubt heightened by the nature of the conduct alleged. Driving in close proximity to a person's house, even if crossing onto the wrong side of the road to do so, and merely staring at the person for a relatively short period of time is, on its own, conduct which it is difficult to perceive as intimidatory. Of course, it must not be divorced from its context. If such conduct had in the past closely preceded acts of violence or of property damage, or the like, or if such conduct closely followed threats which had been made by the defendant, then one can see that the conduct might readily be perceived by any objective observer as conduct of an intimidatory nature.
However, in this case, there was relatively little before his Worship by way of context and background, and the evidence of the complainant was only to the effect that the respondent had driven slowly past her house and had stared or glared at her and her husband while doing so. She felt upset.
It appears that some stage after the no case submission had been made, the prosecutor was invited by his Worship to consider amendment of the complaint, and it appears that he may have attempted to amend it to allege that the relevant conduct was in fact communicating or attempting to communicate with the protected person, that conduct also being prohibited by the misconduct restraining order. So far as I can discern, objection was made by counsel for the respondent on the basis that his cross‑examination of witnesses had been directed to a different issue, and his Worship did not permit the amendment. In the circumstances, it seems to me that that was a decision which was appropriate.
To the extent that his Worship may have apparently decided to uphold the no case submission in part on the basis that the conduct, while it may have upset and perhaps even intimidated the protected person, could not objectively be regarded as intimidatory, it is my view that that was a decision which was open to him having regard to the nature of the evidence. I would not therefore uphold the appeal in any event.
However, there is a further important issue of principle, which should in my view be considered, notwithstanding that it may have no practical effect upon the outcome of this particular appeal. That is the question of whether it is open, in imposing either a misconduct restraining order pursuant to s 36 of the Act, or a violence restraining order pursuant to s 13, (which also includes the reference to restraints "on the lawful activities and behaviour of the respondent") to restrain conduct which is unlawful.
There are of course three possibilities. The first is that it is only conduct which is lawful which can be the subject of restraint. "Lawful" may mean either positively authorised by law, so that a restraining order can only prohibit such conduct, or simply conduct which is not unlawful. Obviously, having regard to the nature and purpose of the Act, if this view were taken the reference to lawful activities and behaviour would be understood as a reference to activities and behaviour which were not positively unlawful. Alternatively, it may be open to a court imposing a restraining order to impose restraints upon unlawful behaviour for example, to take an extreme case, to restrain a person from murdering another. The third possibility obviously is that some restraints will encompass both lawful and unlawful behaviour. The example given by the Prosecutor to his Worship was that of causing damage to property. Often, and perhaps usually, that conduct will be unlawful, although it is also possible, particularly in a case of domestic violence, for a person to damage his own property – for example, by throwing it around the house – in a way which intimidates another.
The appellant's argument essentially is that each of s 13 and s 36 contains two distinct expressions, they being "lawful activities" on the one hand, and "behaviour" on the other, the latter expression being unqualified by the word "lawful". Having regard to the lack of punctuation in the section, that is not the most natural way in which one would read the expression. However, it is a reading which may be open.
Looking to its legislative context, and at the mischief to which it was directed, the Act replaced 1982 amendments to the Justices Act 1902. Those 1982 amendments were intended to afford an additional level of protection to victims of domestic violence, although they also came to be used in other contexts in which it was considered that a person might require protection. As the Hon Peter Foss, Attorney‑General introducing the Bill for the present Act noted during his Second Reading Speech on the Bill for the present Act, " ... numerous reviews have commented on deficiencies of the present statutory arrangements and administrative response which have affected the value of restraining orders as a protective measure". He referred to the serious nature of family or domestic violence and the need for a "multi‑faceted response" (Parliamentary Debates, vol 338, 12/3/97 at 156 - 157). An important criticism which had been made of the use of restraining orders from the time of the 1982 amendments to the Justices Act, was that they had been often used in situations where it would have been more appropriate to charge a person with an offence. In particular, it was widely reported that police officers responding to a complaint of assault in a domestic situation would commonly advise the complainant that she should take out a restraining order, rather than themselves taking any action against the alleged offender. (See, eg, Break the Silence, Report of the Task Force on Domestic Violence to the Western Australian Government January 1986 pars 4.11 - 4.15, 5.1 - 5.6, 6.18, and chs 9, 10). That was not considered to be an appropriate response to a complaint of an offence. During the course of the debate on the introduction of the Bill for the present Act, and in response to comments made by other members of the Legislative Council, the Hon Peter Foss noted:
"I could not agree more ... that, wherever possible if there is evidence of assault, the first reaction is to charge someone. The restraining order is merely the capacity to set bounds so that violent persons can be dealt with before they get close enough to do more violence. The first thing is to punish for the assault, which it is. ... The restraining order can allow intervention prior to this all taking place so that some bounds can be set for peace and quiet.
Assault is only part of the scenario. It often involves harassment and verbal abuse ... ." (26/3/1997 p 933)
It was against that background that in the course of the Second Reading Speech, at 158, the Hon Attorney‑General explicitly stated that "The Bill will allow the court to impose such restraints as the court considers necessary on the otherwise lawful activities of the respondent to prevent the respondent from engaging in the conduct which caused the application to be made".
It appears to me that when regard is had to the mischief which appears to have led, in part, to a reformulation of the type of restraints which could be imposed and the circumstances in which they could be imposed, the legislative purpose was to provide a restraint which might avoid an offence being committed, rather than to provide another means, in addition to the subsisting criminal law, to deter and to punish the commission of offences. It is likely in that context that the natural meaning of the expression in s 13 and s 36, in which the word "lawful" would govern both the word "activities" and the word "behaviour", was the intended one. Further, looking at the Act in the context of other legislation directed at the punishment of offences, it seems unlikely that it was intended to substitute for the restraints of criminal law the restraints imposed under that Act. As his Worship commented, in this case it would appear at first blush to be bizarre to make a violence restraining order pursuant to s 13 which, inter alia, restrained a person from murdering another, particularly when it is understood that the maximum penalty for the breach of an order can range from six months to 18 months depending upon the duration of the order.
It is my view that as a matter of principle, his Worship was correct to the extent that he appeared to be expressing the view, so far as one can discern from the inadequately recorded remarks which he made, that it was not a proper exercise of the jurisdiction pursuant to s 13 or s 36 of the Act to order a respondent to refrain from committing an offence.
However, it is my view that his Worship erred in expressing the view, if he did so, that the mere fact that conduct which was alleged to be in breach of a restraining order was at the same time conduct which might be punishable under some other legislation took it outside the scope of the order, or alternatively meant that the order was not a "proper" order as applicable to such conduct. It is my view that the power to impose restraints on the "lawful activities and behaviour" must be read as a power to impose restraints on behaviour which is capable of being considered to be lawful behaviour or which, broadly and generally described, encompasses lawful behaviour. To take an example, chosen rather because it is convenient than because it appears to be a desirable type of restraint, one can imagine an order which requires a person to refrain from "threatening" another. A threat may be lawful or unlawful, depending upon its nature and context. Threats to kill and to cause other detriments are unlawful (Criminal Code s 338, s 338B). Likewise, a threat to apply force to a person without the person's consent where there is an apparent present ability to carry out that threat is itself an assault and an offence (Code s 222). However, there may be a threat to engage in conduct which is morally reprehensible but not unlawful, such as disparaging a person to relatives or friends or refusing to take a person to a social engagement. The restraint on "threatening" would fall within the scope of s 13 and s 36, because threatening per se is not rendered unlawful by any statute. Behaviour which is threatening would be in all cases a breach of the Act, because a breach of a restraint imposed by the relevant order. In some circumstances and in some contexts, conduct in breach of the order may also be conduct which falls under some other provision of the criminal law or breaches some other statute. It would not for that reason be taken outside the scope of the order which had been lawfully made, or outside the scope of the Act.
To summarise, an order which required a person to refrain from assaulting or murdering another would plainly not be an exercise of the jurisdiction conferred by s 13 and s 36 of the Act. An order which encompassed conduct which might or might not be an offence, depending upon the circumstances and context, would be an order within the terms of the Act, as would an order which restrained conduct which was in all circumstances otherwise lawful such as, for example, using one's own property (s 13(2)(e)). In this instance, while I am of the view that the general principle expressed by his Worship was correct, it is my view that he was in error in forming the view that, if the conduct complained of otherwise fell within the scope of the order, it was somehow taken outside the scope of the order, or the order rendered void, merely because the conduct might have been in breach of a provision of the Police Act. Had this been his Worship's only reason for dismissing the no case submission, I would have upheld the appeal.