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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] SASC 299
Decision Date: 9 August 2005

CaseChat Overview and Summary

The appeal in Police v Trzesniowski involved a dispute regarding the validity and enforcement of a restraining order issued under the Summary Procedure Act 1921 (SA). The matter was brought before the court after a magistrate dismissed a complaint alleging a breach of the restraining order. The appeal sought to overturn this decision, arguing that the magistrate had followed an irregular procedure, misunderstood the law, and made material errors of fact. The central issue before the court was whether the magistrate correctly interpreted the legislative scheme concerning the jurisdiction to issue restraining orders that protect individuals other than the immediate complainant.

The legal issues that the court had to address included whether the procedure followed by the magistrate was irregular, whether a separate inquiry into the jurisdiction of the court was necessary, and whether the magistrate made material errors of fact or misinterpreted the legislative scheme. The court examined the Summary Procedure Act to understand the intent and scope of the provisions enabling the issuance of restraining orders. It noted that section 99J of the Act provides one of the avenues for children to seek restraining orders, and that such orders can extend protection to third parties. The court found that the magistrate's assumption that the complaint was made by the immediate complainant rather than a police officer was not supported by the evidence. This error led to the magistrate misunderstanding the law and misapplying it to the facts of the case.

The court concluded that the magistrate's decision was flawed due to procedural irregularities, errors of fact, and a misinterpretation of the legislative scheme. The magistrate's assumption that the validity of the restraining order depended on the identity of the complainant was incorrect, as the legislative scheme does not impose such a requirement. The court held that the dismissal of the complaint alleging the breach of the restraining order was set aside, and the matter was remitted to the Magistrates Court for further hearing. This decision ensures that the proper procedures and legal principles are applied in future proceedings concerning the enforcement of restraining orders.

Orders

Orders of the court

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Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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