Police v Trzesniowski - [2005] SASC 299

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TRZESNIOWSKI
Judgment of The Honourable Justice Gray
9 August 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS - GIVING EFFECT TO MANIFEST INTENTION
Crown appeal against order made by a magistrate - order related to restraining order made by a police officer on behalf of a complainant pursuant to section 99A of the Summary Procedure Act 1921 (SA) - restraining order sought to protect members of complainant's family - confirmation of the restraining order was in dispute - before order confirmed, prosecution alleged breach of restraining order - magistrate held that the restraining order, in so far as it purported to protect the complainant's mother was not a legally enforceable order - appeal on grounds that procedure followed by magistrate was irregular; that there ought to have been a separate enquiry into the jurisdiction of the Court; that the magistrate made material errors of fact and misunderstood and misinterpreted the effect of the legislative scheme - consideration of legislative scheme - magistrate proceeded under a misapprehension of fact concerning the identity of the complainant - validity of the restraining order did not depend upon the complainant being the only protected party - error of law identified - held: appeal allowed - dismissal of the complaint alleging breach of the restraining order set aside - matter remitted.
Summary Procedure Act 1921 (SA) s 99; Acts Interpretation Act 1915 (SA) s 22; Summary Procedure (Restraining Orders) Amendment Act 1994 (SA) s 22; Statutes Amendment (Restraining Orders) Act 1999 (SA); Statutes Amendment (Attorney-General's Portfolio) Act 1996 (SA); Criminal Law Consolidation Act 1935 (SA); Statutes Amendment (Courts) Act 2004 (SA), referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"restraining order"

POLICE v TRZESNIOWSKI
[2005] SASC 299
Magistrates Appeal
GRAY J:

This is a Crown appeal against an order made by a magistrate.
The present appeal raises important questions concerning the proper construction of legislation authorising the making of restraining orders. In particular, the issue of the Court’s jurisdiction to make a restraining order protecting persons other than the immediate complainant is raised. Important practical questions arise in light of the need for urgent ex parte orders to prevent threatened or apprehended violence.
Background
The restraining order the subject of the alleged breach and present appeal arose from a complaint made by a police officer pursuant to section 99A of the Summary Procedure Act 1921 (SA). That complaint was based upon information conveyed to the police and set out in an affidavit from [CS]. [CS] provided the information contained in her affidavit to the police at the Norwood Police Station on 21 July 2004. Her affidavit was sworn the same day.
In her affidavit, [CS] outlined the basis for her application for a Summary Protection Order against Andrew Trzesniowski. She explained that the two had been in a relationship for some four years but had parted from time to time due to Mr Trzesniowski’s violent behaviour towards [CS] and her family. [CS] said that both she and Mr Trzesniowski had been using drugs, but that she had ceased doing so some four to five months prior to swearing the affidavit. [CS] described Mr Trzesniowski as a heavy drug user, consuming “thirty to forty bongs” of marijuana a day. She claimed that he also used methamphetamines.
[CS] detailed violent arguments between herself and Mr Trzesniowski. One incident involved Mr Trzesniowski pushing [CS] and later chasing her down the street and pulling her back into the house by her wrists. She also described Mr Trzesniowski pressuring her to have sexual relations with him, becoming violent towards her and pulling her hair when she refused to do so.
[CS] deposed that Mr Trzesniowski resented the time she spent with her family. He became aggressive towards her when she attempted to see her family. [CS] said she was fearful for her family’s safety and did not want Mr Trzesniowski to know where they lived. She said:
Andrew hates my family and would like to see them all dead, he’s told me that many times. On one occasion when we were fighting he said he wanted to see them dead and me locked up in a room.
…
I am in fear for my safety and that of my family. I know Andrew is capable of causing harm to all of us. His behaviour intimidates and scares me.
[CS] said she was particularly worried about the safety of her twelve-year-old brother. She believed Mr Trzesniowski knew where he went to school and had threatened to hurt him. She said Mr Trzesniowski had also verbally threatened her father and brother on several occasions and had acted in an intimidating manner towards them. One such incident involved Mr Trzesniowski jumping from bushes to startle [CS’s] father and then holding his fingers up as if they were a gun and pretending to pull the trigger.
[CS] also described an incident where Mr Trzesniowski threatened her with two knives and spat in her face, using words to the effect that if she were to leave him “she would pay” and that he would “get her brother”.
[CS] sought an order restraining Mr Trzesniowski from contacting her either in person, by telephone or by post, as well as from attending at her home address or any other place she worked or resided. She further sought the restraining order to be extended to include her brother’s school.
It was on the basis of this information that Sergeant A J Cooper made a complaint and sought a restraining order pursuant to section 99A of the Summary Procedure Act. The complaint was in the following terms:
The Complaint of the Undersigned, a Member of the Police Force of Adelaide this 22^nd day of July 2004.
Who states that there is a reasonable apprehension that
Andrew Junior Trzesniowski (DOB 19/10/82)
of 15 Sando Avenue, Tranmere
hereinafter called the defendant, may, unless restrained:
behave in an intimidating or offensive manner towards [CS].
And the complainant applies for a Restraining Order against the defendant.
On 22 July 2004, a magistrate made an ex parte restraining order in the following terms:
On the 22^nd day of July 2004, the Court being satisfied that there is a reasonable apprehension that you may, unless restrained:
Cause personal injury or damage to property or behave in an intimidating or offensive manner
and having heard the matter in your absence ordered that you be restrained in the following terms: -
1. From contacting directly or indirectly, in person, in writing, by telephone, by SMS, electronically, through a third party or otherwise [CS], [JS], [GS], [JB] or any other member of the family of [CS].
2. From attending at and from remaining within 500 metres of the place of residence of [sic] place of employment of [CS].
3. From attending at and from remaining at or within the place of residence, the place of employment of or any school attended by any of [CS’s] family.
4. From causing and from threatening to cause injury to [CS], [JS], [GS], [JB] or any other family member of [CS].
and further, the following supplementary firearms orders are made pursuant to the provisions of Section 99D of the Summary Procedures Act.
The defendant is prohibited from possessing a firearm in the course of his / her employment.
That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order/ Domestic Violence Restraining Order is not confirmed.
That a member of the police force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
That any licence or permit to be in possession of a firearm that you currently hold be suspended until a court determines whether to confirm this Restraining Order / Domestic Violence Restraining Order.
The magistrate issued the restraining order after consideration of the affidavit of [CS], pursuant to section 99C of the Summary Procedure Act. That provision provides:
(1)A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.
(2)A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
(3)The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
(a)     the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b)     if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
(3a)    Subsections (2) and (3) have effect subject to section 99CA.
Pursuant to this provision, upon being served, the restraining order took effect on an interim basis.
Counsel for Mr Trzesniowski disputed confirmation of the restraining order for reasons relevant below. Prior to the confirmation hearing, the prosecution alleged that Mr Trzesniowski had breached the restraining order. The prosecution claimed that the breach arose from an incident involving Mr Trzesniowski and [CS’s] mother, [JB], on 4 September 2004. On 23 September 2004, police spoke to Mr Trzesniowski in relation to the incident on 4 September 2004. He denied the allegations but was arrested and charged with breaching the restraining order.
Counsel for Mr Trzesniowski submitted that on 25 November 2004 counsel had made written representations to the prosecution concerning the alleged breach of the restraining order. These representations gave notice of the ground for the challenge to the confirmation of the order; namely, that the restraining order purported to extend to [CS’s] mother, father and brother, while the only complainant was [CS]. Counsel for Mr Trzesniowski said that the prosecution was on notice that the validity of the restraining order was in dispute.
Pre-trial procedures ensued, but did not resolve the dispute. The confirmation hearing was set for 23 March 2005 and the breach of restraining order trial was set for 30 March 2005.
Mr Trzesniowski brought an application for a restraining order against [CS]. This matter was listed for hearing before the Adelaide Magistrate’s Court on 23 March 2005.
As a result of Mr Trzesniowski’s application, the hearing with respect to the confirmation of the restraining order brought by [CS] against Mr Trzesniowski was adjourned to 14 September 2005.
Breach of Restraining Order Proceedings
The breach of restraining order proceedings commenced on 30 March 2005 before the magistrate. The following exchange occurred during cross-examination of [JB], [CS’s] mother:
[Defence Counsel]                You were the beneficiary of an application by your daughter for a restraining order against Andrew.
A.  You mean we’re also covered in that restraining order?
Q.  That’s right.
A.  Yes.
His Honour:  There [sic] one restraining order against your client that referred to two victims.
[Defence Counsel]:       More than 2, a whole family.
COPY OF RESTRAINING ORDER PROVIDED TO COURT
Q.Is this the situation, is it not, you didn’t apply for the restraining order, your daughter did.
A.No, it was more than that, because the death threats were made against my 12 year old son, that’s why it covers the whole family.
Q.  You didn’t make the application, your daughter did.
A.I was at the police station at the time with her and that’s how they processed it.
Q.  Who put the affidavit in.
A.  She put in an affidavit.
Q.  Her name was on the application.
A.  I believe so.
Q.  It was her who made the application, not you.
A.  Yes.
Q.In the course of those documents that she put in, requests were made to protect other members of the family, is that right.
A.  That’s right.
Q.  That’s what the court ultimately did.
A.  I think so, yes.
Q.  Were you present when the court made the order.
A.  No.
Q.  You were told shortly thereafter, no doubt.
A.  I read the restraining order.
Q.  Your daughter came home with a copy of the order.
A.  Yes.
Q.You knew from than an early state that there was an order in force.
A.  Yes.
As a result of this exchange, it became apparent that [JB] may not have been the complainant for the restraining order that was alleged to have been breached. The magistrate considered this gave rise to a problem concerning jurisdiction and the validity of the order and invited submissions from counsel.
Counsel for Mr Trzesniowski submitted that, to the extent that the order purported to protect adult persons other than the complainant, it must be held to be ineffective and thus the breach proceedings should be dismissed. Counsel put no further evidence before the court to prove the identity of the complainant in the original proceedings. The order, as referred to above, does not disclose the identity of the applicant. The original complaint, seeking the restraining order, was not before the Court.
The magistrate held that the restraining order, in so far as it purported to protect [JB], was not a legally enforceable order. The magistrate dismissed the complaint alleging breach. He published the following brief reasons:
The defendant has been charged with breaching a restraint order. The order was made in the Adelaide Magistrates Court on the 22^nd of July 2004. The complainant, of course, is the South Australian Police. The person who sought the order was a [CS]. An interim order was made on the 22^nd of July 2004 and included in the order was the victim in relation the present complaint, namely [JB] who was the mother of [CS].
I raised with counsel the issue of whether the interim order was properly made and binding. I have heard submissions from both the defendant’s solicitor and the prosecutor and it is my view that the order is not enforceable in respect of [JB]. She is an adult. She did not take out the application.
The Act, specifically in s.99J, makes provision for circumstances in which a complaint or application can be made by a person other than the person making the application and that is in circumstances where the person is a child.
I have put a scenario to Sergeant Paech for the complainant, where the situation might have been one where [JB] had cause to properly take out a restraint order against the defendant and in her affidavit set out details why her daughter [CS] should be covered; but her daughter [CS] at that time did not wish to be included in the restraint order. It would be ludicrous if [JB] could have her covered by a restraint order by simply taking out the application and seeking to have her included. In my view [that is] not the intention of the legislation.
Accordingly I find the original restraining order in relation to [JB] is not a legally and properly enforceable order and accordingly this complaint must fail and is dismissed.
Order for costs, such costs to be made by consent and if so reached by consent that will be the end of the matter. If parties cannot reach consent as to costs I grant leave to call on for further argument.
Subsequently, police acting on [JB’s] behalf brought an application for a restraining order against Mr Trzesniowski. Mr Trzesniowski attended the Magistrates Court in relation to that matter on 21 April 2005 and, without admitting the allegations, did not oppose the orders sought.
Issues on Appeal
The appellant complained that the procedure followed by the magistrate was irregular. It was contended that there ought to have been a separate enquiry into the jurisdiction of the Court, which would have ensured procedural fairness. The appellant further argued that the magistrate made material errors of fact, and misunderstood and misinterpreted the effect of the legislative scheme.
Counsel for the appellant submitted that the magistrate erred in failing to embark on a proper enquiry into the validity of the restraining order brought on [CS’s] behalf. Counsel contended that, although the magistrate indicated that he had concerns regarding the enforceability of the order on jurisdictional grounds, he failed to engage in a proper enquiry. Counsel further said that the magistrate proceeded to merge the question as to jurisdiction with the breach proceedings. The correct avenue for review of the scope and enforceability of the restraining order was either by way of confirmation hearing pursuant to section 99C of the Summary Procedure Act or alternatively, by application for revocation under section 99F of the Act.
Counsel for the appellant also submitted that there was no proper factual enquiry or discussion of the provisions of the Summary Procedure Act, and that this gave rise to a denial of procedural fairness to the Crown. As a result, the magistrate proceeded under misunderstandings of fact and law.
Legislative Scheme
The policy and purpose of the relevant provisions of the Summary Procedure Act are relevant and material matters to be considered when determining the present appeal.[1] This policy can be discerned from the legislative history and the current legislative framework of the Act.
Legislative History
[1] Acts Interpretation Act 1915 (SA), section 22.
In 1994, Division 7 of the Summary Procedure Act was amended and provisions 99 to 99L inserted.[2] During the second reading speech relevant to the amending Bill, it was noted that the new provisions were part of a general policy to reform the law in the area of domestic violence restraining orders. The introduction of the new provisions of the Summary Procedure Act coincided with the introduction of the Domestic Violence Act. The provisions of the amending Act were said to:[3]
[I]mprove the existing summary protection order provisions in Part VII of the Summary Procedure Act, [and] give greater protection to those faced with violence or intimidation …
[2] Summary Procedure (Restraining Orders) Amendment Act 1994 (SA).
[3] Parliamentary Debates, House of Assembly, Hon S J Baker, Tuesday 10 May 1994, 1119.
It is clear from the second reading speech that the provisions contained in Division 7 of the Summary Procedure Act were intended to provide a framework for the speedy attainment of protection orders in situations of apprehended violence or damage to property.
In 1995, section 99AA was inserted into the Summary Procedure Act, providing a procedure regarding paedophile restraining orders.[4]
[4] Statutes Amendment (Paedophiles) Act 1995 (SA).
In 1996 the Summary Procedure Act was again amended, to replace the previous sub-section 99(4).[5] Section 99F was also amended. During the course of the second reading speech of the amending Act, it was said that:[6]
The amendments [to both the Summary Procedure Act and corresponding provisions of the Domestic Violence Act] will help to ensure that the rights of all the members of a family are given proper consideration at the time domestic violence restraining orders are made.
[5] Statutes Amendment (Attorney-General’s Portfolio) Act 1996 Part 16.
[6] Parliamentary Debates, House of Assembly, Second Reading Speech, Hon S J Baker, 10 July 1996 at 1926.

The 1996 amendments were intended to bring the Summary Procedure Act provisions in line with corresponding provisions in the Domestic Violence Act regarding the obtaining of restraining orders.
In 1999, the relevant provisions of the Summary Procedure Act were further amended by the Statutes Amendment (Restraining Orders) Act 1999. This Act amended the previous sections 99, 99B, 99C, 99D, 99E, 99F and 189. The Statutes Amendment (Restraining Orders) Act also amended the corresponding provisions in the Domestic Violence Act. In the second reading speech of the amending Act, the policy behind the provisions was described as follows:[7]
The Government recognises the importance of effective domestic violence legislation and considers that the current Act provides a practical approach to protection orders and enforcement.
…
Victims of domestic violence are entitled to the maximum protection from harm and abuse. The Liberal Government believes this Bill enhances the protection afforded to victims of domestic violence and other victims of violence and intimidating or offensive behaviour.
[7] Parliamentary Debates, House of Assembly, Second Reading Speech, Hon I F Evans, 3 March 1999 at 937-939.
Section 99 of the Summary Procedure Act was further amended in 2001 by the Statutes Amendment (Stalking) Act 2001 in an effort to ensure consistency between the “stalking” provisions in the Criminal Law Consolidation Act 1935 (SA) and the Domestic Violence Act.
Further amendments occurred in 2004, including an amendment to section 99C and the insertion of section 99CA.[8] These provisions concerned the procedures to be followed by non-police complainants when seeking section 99 restraining orders. During the second reading speech of the amending Act, it was said that these amendments were made in order to discourage the inappropriate use of restraining orders by private complainants.[9]
[8] Statutes Amendment (Courts) Act 2004 Part 8.
[9] Parliamentary Debates, House of Assembly, Second Reading Speech, Hon M J Atkinson, 4 December 2003 at 1139.
The legislative history of the relevant provisions of the Summary Procedure Act discloses that it was the purpose of the legislature to provide effective and immediate protection to those persons fearing physical violence, damage to property or intimidating or offensive behaviour. In addition, safeguards are provided to ensure that persons subject to a restraining order are provided with opportunities to challenge, revoke or vary the order as appropriate in the circumstances. It is envisaged that persons other than the named complainants can be protected by restraining orders and that complaints can be made on the behalf of third parties. These policies are incorporated in the current legislative framework.
Current Legislative Framework
Section 99 of the Summary Procedure Act sets out the powers of the court in relation to making a restraining order. Subsection 99(1) provides:
On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a)there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b) the Court is satisfied that the making of the order is appropriate in the circumstances.
Subsection 99(5) outlines the factors the court must have regard to when making the order:
In considering whether or not to make a restraining order and in considering the terms of the order, the Court must have regard to—
(a)     the welfare of any children who may be affected by the order; and
(b)     the accommodation needs of any person who may be affected by the order; and
(c)     any relevant family contact order of which the Court has been informed; and
(d)how the restraining order would be likely to affect contact (in accordance with a relevant family contact order or otherwise) between—
(i)    the person for whose benefit, or against whom, the order is sought; and
(ii)    any child of, or in the care of, either of those persons.
Section 99A concerns the making of complaints, providing:
A complaint may be made—
(a) by a member of the police force; or
(b)by a person against whom, or against whose property, the behaviour that forms the subject matter of the complaint has been, or may be, directed.
Section 99C allows for restraining orders to be made in the absence of a defendant whether or not the defendant was summonsed or required to attend. If such an order is made, the court must summon the defendant to appear to show cause why the order should not be confirmed. Subsection 99C(4) allows the court to adjourn the confirmation hearing to a later date if satisfied that the summons has not been served or for some other adequate reason. A restraining order made under section 99C(1) will remain in force until the conclusion of the confirmation hearing, unless otherwise consented to.
As earlier observed, section 99CA provides a special procedure for non-police complainants. Section 99CA(2) provides:
On a complaint to which this section applies, the following provisions apply despite any other provisions of this Act:
(a)the Court must not issue a summons for the appearance of the defendant and must dismiss the complaint unless it is supported by oral evidence;
(b)in addition to the discretion whether to make an order under section 99C(2), the Court has, subject to this subsection, a discretion to refuse to issue a summons for the appearance of the defendant and to dismiss the complaint;
(c)in determining whether to exercise the discretion under paragraph (b) to dismiss the complaint, the Court must take into account—
(i)    whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and
(ii)    whether the complaint is in the nature of a cross application; and
(iii)     any other matters that the Court considers relevant;
(d)without limiting the circumstances in which the Court may exercise the discretion, the Court may exercise the discretion under paragraph (b) to dismiss the complaint if satisfied that the complaint is frivolous, vexatious, without substance or has no reasonable prospect of success;
(e)there is a presumption against exercising the discretion under paragraph (b) to dismiss the complaint if the complaint discloses allegations of—
(i)    offence involving personal violence; or
(ii) offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935;
(f)the Court exercises the discretion under paragraph (b) to dismiss the complaint, it must record the reasons for doing so in writing.
Section 99E of the Summary Procedure Act outlines the requirements for service of the order upon the defendant. Service must be effected personally, and the order is not binding until served.
Section 99F outlines a procedure for varying or revoking restraining orders. This section provides:
(1)     The Court may vary or revoke a restraining order on application—
(a)     by a member of the police force; or
(b)     by the person for whose benefit the order was made; or
(c)     by the defendant.
(1a)An application for variation or revocation of a restraining order may only be made by the defendant with the leave of the Court and leave is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.
(2)     A firearms order cannot be revoked unless the Court is satisfied—
(a)     that the restraining order should be revoked in its entirety; or
(b)     that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearm for purposes related to earning a livelihood.
(3)The Court must, before varying or revoking a restraining order under this section—
(a)     allow all parties a reasonable opportunity to be heard on the matter; and
(b)     have regard to the same factors that the Court is required to have regard to in considering whether or not to make a restraining order and in considering the terms of a restraining order.
Section 99J concerns the making of complaints or applications by or on behalf of a child, providing:
A complaint or application that could otherwise be made by a person under this Division may, if the person is a child, be made—
(a)     by the child with the leave of the Court, if the child has attained the age of 14 years; or
(b)     on behalf of the child—
(i)     by a parent or guardian of the child; or
(ii)    by a person with whom the child normally or regularly resides.
Other relevant sections include: section 99AA, which provides a procedure for making paedophile restraining orders; section 99B, concerning complaints made by telephone; and section 99D, allowing the court to make firearm orders in addition to restraining orders.
Misapprehension of Fact
Counsel for the appellant submitted that the evidence before the magistrate was insufficient to allow the finding that the applicant for the restraining order was [CS], and not the police. Counsel said that, on the basis of the cross-examination of [JB], no finding could be made as to the identity of the complainant and that the magistrate ought to have sought further evidence on a voir dire hearing.
Production of the original complaint discloses that the complainant named was a member of the police force, not [CS]. The magistrate proceeded on a misunderstanding of fact. The magistrate erred in failing to conduct a factual enquiry as to the identity of the complainant or applicant.
Validity of the Restraining Order
Counsel for the appellant submitted that, in addition to proceeding under a misapprehension of fact, the magistrate’s ruling was wrong in law. Counsel said that the validity of the restraining order did not depend upon the complainant being the only protected party.
Counsel submitted that sub-sections 99(1) and (2) of the Summary Procedure Act do not require that the personal injury, damage to property or intimidating or offensive behaviour be directed solely at a complainant. Further, counsel said that section 99(3) appears to contemplate whether the behaviour sought to be restrained may be directed at third parties. The very existence of section 99A(a), allowing a police officer to issue a complaint to protect another person, suggests that the provisions of the Summary Procedure Act can be utilised to protect the complainant and third parties from personal injury, damage to property or intimidating or offensive behaviour.
Counsel for Mr Trzesniowski submitted that such an approach is erroneous and has the potential to lead to situations where a complainant can seek to cover a number of persons other than themselves or their children, such as their extended family and neighbours, with the protection of the restraining order sought. Counsel said that if [JB] was seeking protection from Mr Trzesniowski’s behaviour, she should have utilised section 99A or 99CA to make the complaint herself.
This submission should be rejected. The correct test for validity of the restraining order concerns the question of whether the defendant has acted so as to reasonably arouse in the complainant apprehension of fear of personal injury or damage to property, not whether the behaviour was directed at the complainant.
Section 99F of the Summary Procedure Act enables a court to vary or revoke the order on application of the person for whose benefit the order was made. This absolves the concerns expressed by the magistrate regarding a situation whereby a person was provided with unwanted protection by a restraining order. In such circumstances, the person protected could apply to have the order varied or revoked.
Counsel for Mr Trzesniowski submitted that the magistrate was correct in finding that section 99J of the Act did not apply to [JB’s] circumstance and that an adult person who is not the actual complainant could not be afforded the protection of a restraining order issued upon a complaint of another adult.
Section 99J of the Summary Procedure Act, referred to by the magistrate in his reasons, constitutes an enabling provision, rather than a restrictive provision. Section 99J enables children to bring restraining order proceedings either by themselves, if over 14 years of age, or through a parent or guardian where they would not otherwise be able to do so under section 99A(b). Section 99J provides one, but not the only, avenue for children to seek a restraining order. Children seeking a restraining order can proceed pursuant to section 99A(a), whereby a complaint is brought by the police on their behalf; or alternatively, they can proceed pursuant to section 99J and make the complaint individually or through a parent or guardian.
Conclusion
Division 7 of the Summary Procedure Act was intended to mirror the procedures contained in the Domestic Violence Act concerning the issuing of restraining orders. Both Acts were intended to ensure that victims of domestic violence receive maximum of protection from harm or abuse committed in their homes. Pursuant to the Summary Procedure Act, adults, police officers and, in some circumstances, children may bring a complaint and seek a section 99 restraining order. Such orders can extend protection to third parties not named as complainants. This is clearly intended by the legislative scheme and the provisions of the Act.
In the present case, the magistrate proceeded under a misapprehension of fact and a misunderstanding of law. The complaint giving rise to the restraining order in question was made by a police officer having obtained an affidavit from [CS]. The magistrate erred in proceeding on the assumption that the complaint was made by [CS]. This assumption was not supported by the evidence.
The magistrate erred in finding that the validity of the order depends upon the identity of the complainant. Such a requirement does not form part of the legislative scheme.
The procedure the magistrate followed when determining the legal enforceability and validity of the restraining order resulted in a denial of procedural fairness to the Crown. No evidence was called to determine the identity of the complainant, no voir dire hearing was conducted, no proceeding for judicial review was conducted, no section 99F procedure was followed, no enquiry into the provisions of the Summary Procedure Act was made. This amounted to a miscarriage of justice.
The dismissal of the complaint alleging the breach of the restraining order is set aside. The matter is remitted to the Magistrates Court for hearing.