Police v Willing
[2005] SASC 294
•9 August 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WILLING
Judgment of The Honourable Justice Gray
9 August 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - INJUNCTIONS - EX PARTE INJUNCTIONS
Crown appeal against dismissal of complaint by magistrate - alleged that respondent breached restraining order - respondent pleaded not guilty - proof of service document tendered by Crown during trial as part of exhibit P1 - respondent submitted to magistrate that proof of service document ought to be withdrawn from exhibit P1 - proof of service withdrawn - complaint dismissed on the basis that service of restraining order had not been proved - consideration of Domestic Violence Act 1994 section 9(2) - consideration of Magistrate Court Rules 1992 Rule 18A.05 - consideration of Evidence Act 1929 section 45C - consideration of Summary Procedure Act 1921 section 28 - discussion of acceptance of further evidence on appeal - respondent's request to withdraw the proof of service document misconceived - withdrawal of proof of service notice from exhibit constituted an irregularity in trial procedure and gave rise to unfairness to the Crown - held: appeal allowed - decision of magistrate dismissing complaint set aside - prosecution has established case to answer - matter remitted to magistrate for further hearing.
Domestic Violence Act 1994 (SA) s 9(2), s 15(1); Magistrates Court Rules 1992 (SA) r 18A.05; Evidence Act 1929 (SA) s 45C; Summary Procedure Act 1921 (SA) s 28(2), referred to.
R v Liristis [2004] NSWCCA 287; R v Patsalis & Spathis No 6 [1999] NSWCA 746; Holder v Lewis (2003) LSJS 431, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"restraining order"
POLICE v WILLING
[2005] SASC 294Magistrates Appeal
GRAY J
This is a Crown appeal against the dismissal of a complaint by a magistrate.
Introduction
The Crown alleged that on 27 March 2004 at Holden Hill the respondent, Darren Alfred Willing, contravened a domestic violence restraining order imposed in the Magistrates Court on 23 January 2004.[1] The matter was heard before the Magistrates Court at Holden Hill on 16 March 2005. The respondent pleaded not guilty. At the close of the prosecution case, the magistrate dismissed the complaint on the basis that service of the restraining order had not been proved.
[1] Section 15(1) of the Domestic Violence Act 1994 (SA).
The domestic violence restraining order of 23 January 2004 was issued on behalf of Melisa Foley, the respondent’s ex-partner. Subject to any Family Court order, it restrained Darren Willing from being on any premises at which Ms Foley or her daughter may from time to time reside or work. The respondent was further restrained from:
-contacting, communicating or approaching directly or indirectly whether in person, by telephone, in writing or otherwise with Melisa Jane Foley and her daughter, other than via a solicitor; and
-assaulting, harassing threatening or intimidating Melisa Jane Foley and her daughter.
According to a proof of service, this domestic violence restraining order was served on the respondent by, a police officer, on 21 January 2004.
Circumstances of alleged breach
On the Crown case, on 27 March 2004 the respondent drove past Ms Foley’s house. Ms Foley, her sister and her daughter were inside the house. They became aware of a noisy vehicle driving in close proximity to the house. They looked out of the window and saw the respondent in the passenger seat of a red and white F100 light truck. The truck drove past Ms Foley’s house, turned at the cul-de-sac at the end of the street and then drove away. Ms Foley felt fearful for her safety.
After about half an hour, Ms Foley and her sister left the house and drove to Ingle Farm Shopping Centre. Ms Foley’s sister drove the vehicle. As they drove north on Bridge Road, they saw the red and white truck travelling in the opposite direction. The truck made a U-turn and followed Ms Foley’s vehicle. Ms Foley, aware that the respondent was in the truck, told her sister to continue driving past the shopping centre towards Holden Hill Police Station.
The truck caught up with Ms Foley’s vehicle and followed closely. At the intersection of Wright and Walkleys Roads, Ms Foley’s vehicle stopped at a red light. The truck moved close behind the vehicle. Ms Foley was afraid the two vehicles would come into contact. At this time Ms Foley called the police. Ms Foley told the police she was being followed by the respondent and informed them of the existence of the domestic violence restraining order. She was advised to attend at the police station.
The truck continued to follow Ms Foley’s vehicle. At times the truck was close enough to the vehicle for Ms Foley to hear the respondent shouting insults at her. The respondent repeatedly shouted at Ms Foley, calling her a “fucking bitch”. As they approached the Holden Hill Police Station, at the intersection of North East Road and Walkleys Road, the truck pulled up to the same level as Ms Foley’s vehicle, using a “turn left with care lane”. Both Ms Foley and her sister were unable to identify the driver of the truck, merely describing him as “dark”. However, they both claim to have seen the respondent leaning forward in the passenger seat and to have heard him say: “you’re fucking dead, slut”. The respondent then put his finger across his throat in a threatening gesture. As Ms Foley’s vehicle arrived at the police station, the truck drove away in a different direction.
Ms Foley suffered feelings of fear and anxiety as a result of this incident, as indicated by her evidence before the Magistrates Court:
Q. How did this make you feel.
A.I was scared, I was angry, I was upset, I was nervous. I was just – yes, just upset and scared and he was very agitated and yes – I was just scared. I didn’t know – you know, I felt violated that I couldn’t even go – leave my house to go to the shops and go shopping without being followed and intimidated.
Circumstances in which part of exhibit P1 was withdrawn
In the course of the proceedings before the magistrate, the prosecution introduced a certified copy of the domestic violence restraining order imposed in the Magistrates Court at Holden Hill on 23 January 2004. This document included a proof of service to the respondent. The proof of service was in the following terms:
I, David Versen
of c/o Elizabeth Police Station
certify that I did on the 21 day of 01 2004 between the hours of 10 and 11 in the fore noon duly serve the within named Darren Alfred Willing at 22 Elmwood Road, McDonald Park
with the within order by delivering a duplicate hereof to him personally.
[signed David Versen, Const 4505/2]
Certified this 21 day of 01 2004.
[Not sworn]
No objection was raised by counsel. The document was admitted and marked as exhibit P1.
During an adjournment at the close of the Crown case, counsel for the respondent examined the domestic violence restraining order tendered as exhibit P1 for the first time. Counsel noted that a proof of service document was attached to the restraining order. The proof of service document was unsworn and did not contain the seal of the court. Following the adjournment, counsel for the respondent requested that the proof of service notice attached to the document tendered as exhibit P1 not to be included as part of the exhibit. The following exchange took place:
[Counsel]:Your Honour, one thing I should raise, I note Exhibit P1 was tendered as a copy of the restraining order. However, I note that there is also a proof of service document attached to that restraining order. I wasn’t aware that was tendered as part of the document entitled P1.
Her Honour: So do I take it that you are objecting to that proof of service being put in?
[Counsel]: Only the proof of service document, your Honour.
Her Honour: All right.
[Prosecutor]: I just wonder why that would be the case. I have actually just requested a copy from the Magistrate’s Court and that’s what they sent me so that’s why I tendered it all in one rather than separating parts of it. I don’t see the proof of service is really relevant. The order had been confirmed since that date and the offence date is after that.
Her Honour: All right, well, I will just detach the proof of service. I will just return that to the prosecution.
PROOF OF SERVICE HANDED TO PROSECUTION
Her Honour: All right. Okay. So that’s the case for the prosecution, do I take it?
[Prosecutor]: Yes, your Honour.
CASE FOR THE PROSECUTION
Her Honour: All right, [counsel]?
[Counsel]: Yes, your Honour, in my submission, there is no case to answer. There is no evidence that – well, it’s imperative for an offence of this type to prove that the accused knew of the existence of a restraining order and that indeed it was served on him.
Your Honour, there has been no evidence to that effect whatsoever, either through the two prosecution witnesses, or the exhibits tendered. There certainly exists a court certified copy of a restraining order but there has been no evidence heard or tendered proving that order was served on Mr. Willing. In my respectful submission, that fact is paramount in proving this offence.
Her Honour: All right.
[Prosecutor]: There was evidence given in relation to the restraining order, your Honour. In fact, in the cross-examination when questioned in relation to the Family Court order – I’ll just check it’s Melissa – Melissa Foley has stated when asked – it was early 2004 Family Court order and she stated ‘After the restraining order was granted’. So that would suggest that it was prior to that. Amanda Foley has also stated that the restraining order was in force and – when asked whether or not she liked Mr Willing.
I have to be honest, I am not sure exactly what happened before when that proof of service came back to me, your Honour. It was tendered with the restraining order as a whole and my friend has obviously objected to it, but I don’t understand the actual legalities around that.
Her Honour: Well, I guess the situation is that you sought to tender the restraint order
[Prosecutor]: Yes.
[Her Honour]: For which there was no objection and that was admitted. There hasn’t been an application to tender the proof of service.
[Prosecutor]: With respect, your Honour, it is probably my mistake in not realizing that the two items were actually part of the one document. I did not see them as being two separate items. It is a matter of record before the court, however, that the order had been confirmed in January of 2004 and this offence took place in March of 2004. As a matter of record before the court and it’s a matter of court record, I don’t see that that can be disputed simply because I failed to specify that the restraining order proof of service should be tendered as well as the restraining order.
…
On 16 March 2005, the magistrate dismissed the charge on the ground that the order ultimately tendered as exhibit P1 did not establish proof of service with respect to the defendant. The magistrate concluded that the evidence of the Crown witnesses did not establish the respondent’s awareness of the existence of the order, as there was no evidence concerning the service of the order. The magistrate held that the Crown had failed to prove beyond reasonable doubt that the respondent was aware of the existence of the restraining order prior to the alleged breach.
The Appeal
The appellant contended that the magistrate erred in allowing part of exhibit P1 to be withdrawn. It was further contended that upon the hearing of this appeal this Court should receive the certificate of proof of service into evidence.
Withdrawal of the Proof of Service
the domestic violence restraining order was made pursuant to section 9(2) of the Domestic Violence Act. That section relevantly provides:
A domestic violence restraining order may be made in the absence of the defendant, … 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.
Rule 18A.05 of the Magistrates Court Rules provides:
A Domestic Violence Restraining Order made ex parte pursuant to section 9(2) of the Act and Summons to Defendant shall comply with Form No. 40.
Form 40 comprises a complaint in the form of an interim restraining order, a summons and a proof of service notice. The Form 40 relating to the respondent was the document originally tendered by the prosecutor as exhibit P1.
Counsel for the Crown submitted that the proof of service notice was properly tendered as forming part of the Form 40. It was said that as the proof of service document formed part of the court process regarding the issuing of ex parte restraining orders, it could not stand alone. It would therefore have been inappropriate for the prosecutor to seek to tender the proof of service notice separately from the restraining order itself.
Counsel for the Crown pointed out that the original Form 40, including the certified copy of the proof of service notice, was in the possession of the court as part of the court records. As a result, the tender of the proof of service notice, as part of exhibit P1, was not an attempt by the prosecution to admit secondary evidence without having given notice to produce the original document prior to trial. The certified copy of the proof of service notice was already before the court as part of the court’s record.
Counsel for the Crown emphasised that at no stage during the original tender was objection raised by counsel for the respondent. Counsel for the respondent only voiced objection to the exhibit following an adjournment at the end of the Crown case. Counsel submitted that the magistrate erred in subsequently withdrawing part of that exhibit following a request from counsel for the respondent.
It was further contended that the magistrate ought to have accepted the proof of service document as evidence in the trial. The evidentiary presumption of proof of service was said to be in favour of the prosecution. Should the respondent have sought to challenge proof of service, he was required to call evidence to the contrary.
Finally, it was contended by counsel for the Crown that, having allowed the withdrawal of the proof of service notice from exhibit P1, the magistrate ought to have exercised her discretion to allow the prosecution to re-open the case and tender the notice separately.
Counsel for the respondent contended that the magistrate was correct to withdraw the proof of service notice as it could not be accurately be described as comprising the domestic violence restraining order, as suggested by the prosecutor at the time of its original tender. It was further submitted that the withdrawal was appropriate given that the proof of service document had not been sworn or sealed by the court. It was said that as the document formed an essential part of the Crown case, it ought to be duly certified before being tendered into evidence.
The proof of service forming part of the original exhibit P1 was admissible pursuant to section 28(2) of the Summary Procedure Act 1921 (SA) which provides:
…
(2)Service may also be proved by tender of a certificate of service signed by the person who effected service.
(3)A document appearing to be an affidavit or certificate under this section may be accepted, without further evidence, as proof of the matters stated in it.
(4)A person who gives a false certificate under this section is guilty of an offence.
Penalty: Imprisonment for two years.
The proof of service notice constituted admissible, relevant and probative evidence. The prosecutor, in seeking to tender what was described as “the restraining order”, was not intending to mislead the court or the respondent as to the nature of the document. The respondent had ample opportunity to examine the document sought to be tendered or to object to the tender of the document, and if need be to clarify the documents comprising the exhibit. None of these steps were taken.
The copy domestic violence restraining order and attached proof of service, the documents comprising the original exhibit P1, were admissible pursuant to section 45C of the Evidence Act 1929 (SA). That provision provides:
(1)A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document (whether or not that other document still exists).
(2)In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and, in particular--
(a) the court may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made;
(b) the court may make findings based on the certificate of a person with knowledge and experience of the processes by which the reproduction was made;
(c) court may make findings based on the certificate of a person who has compared the contents of both documents and found them to be identical;
(d) the court may act on any other basis it considers appropriate in the circumstances.
(3) This section applies to reproductions made--
(a) by an instantaneous process; or
(b) by a process in which the contents of a document are recorded (by photographic, electronic or other means) and the reproduction is subsequently produced from that record; or
(c) any other way.
(4)Where a reproduction is made by an approved process, it will be presumed that it accurately reproduces the contents of the document purportedly reproduced unless the contrary is established.
(5)The above reference to an approved process is a reference to a process prescribed by regulation for the purposes of this subsection.
(6)Where a court admits or refuses to admit a document under this section, the court must, if so requested by a party to the proceedings, state the reason for its decision.
(7)A person who gives a certificate for the purposes of this section knowing it to be false is guilty of an indictable offence.
Penalty: Division 5 imprisonment.
Although the proof of service document was unsworn and not sealed by the court, it remained admissible pursuant to section 45C of the Evidence Act and section 28 of the Summary Procedure Act. Any concerns regarding the proof of service document raise considerations of weight rather than admissibility. The respondent was entitled to call evidence challenging the authenticity or accuracy of the document. Moreover, the original, certified copy of the proof of service notice comprising exhibit P1 was part of the court record.
Counsel’s request that the proof of service be withdrawn from exhibit P1 following the close of the Crown case was misconceived. The proof of service was admissible evidence. Having successfully removed the document from the consideration of the court, counsel for the respondent proceeded to submit that the Crown had failed to provide proof of service. It is clear from the exchange referred to earlier that the prosecutor, not a trained lawyer, was unaware of the suggested significance of the removal of the proof of service notice from exhibit P1.
There exists authority suggesting that exhibits may be withdrawn on the basis that whatever probative value they may have is outweighed by prejudice to an accused that could arise through the exhibit being available for consideration by a jury.[2] However, there appears to be little authority suggesting magistrates or judges have a broad discretion to withdraw exhibits once tendered. In the present case, the withdrawal of the proof of service notice from exhibit P1 constituted an irregularity in trial procedure and gave rise to an unfairness to the Crown. In the circumstances, the ruling of the magistrate to permit withdrawal of part of exhibit P1 should be set aside. There was a prima facie case of service established by the proof of service.
[2] R v Liristis [2004] NSWCCA 287; R v Patsalis & Spathis No 6 [1999] NSWCA 746.
On appeal, counsel for the respondent accepted that exhibit P1 was a true and accurate photocopy of the original document. Production of the original was not required. Counsel for the respondent conceded that once the proof of service was admitted there was a case to answer. Counsel acknowledged that her client had in fact been served with the restraining order.
Admission of Proof of Service into Evidence before this Court
As a result of the above conclusion it is not necessary to consider the Crown’s alternative submission that the present case fell within the scope of Holder v Lewis[3] and thus it was appropriate for this Court to re-hear the matter and to receive the documents that originally formed exhibit P1 into evidence pursuant to section 28 of the Summary Procedure Act and section 45C of the Evidence Act. It was said that, should the restraining order and proof of service be admitted into evidence before this Court, proof of service being the only basis for the magistrate’s dismissal of the complaint, the prosecution had made out a case to answer.
[3] (2003) 231 LSJS 431.
In Holder v Lewis the Full Court considered the acceptance and use of further evidence upon appeal. It was concluded that further evidence could be admitted on an appeal to remedy a mistake made at trial. Doyle CJ, with whom Prior J and Perry J agreed, observed:[4]
Power to admit the evidence is conferred either by s 42 (4) of the MCA or by r 97.18(b) of the Supreme Court Rules 1987 (SA).
Section 42(4) of the MCA provides:
(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
That provision should not be read as permitting the receipt of evidence only if that evidence was not reasonably available at trial. In some circumstances that will be the only justification for admitting further evidence. However, that should not be taken as the sole basis for the admission of evidence on appeal. I consider that the provision should be read as enabling the court to permit an oversight or mistake of the kind in question here to be corrected, if that can be done without causing any injustice. In short, the reference to “fresh evidence” should not be read as referring only to one kind of evidence of the type that appeal courts are often able or empowered to receive.
In any event, r 97.18(b) of the Supreme Court Rules gives the court hearing such an appeal power to receive “further evidence upon any question of fact”. There is no doubt that that provision empowered the Judge to receive the evidence.
The decision to admit the evidence was appropriate. The evidence in question was not contentious. The prosecutor should have tendered the evidence. Her decision not to do so was a mistake, partly attributable to the Magistrate’s intimation that the tender of the material should be deferred until after he had dealt with the challenge to the admissibility of the evidence of admissions by Mr Holder. The decision was not made for tactical reasons or to secure some advantage. Counsel for the defendants was well aware of the evidence, a copy of the documents having been provided to him. The interests of justice support allowing the mistake to be remedied. To do so is not unfair to the defendants, even though it assists the prosecution on the appeal. Even if the evidence had been tendered, the complaints would have been dismissed, and so the failure to tender the evidence has not affected the outcome of the proceedings in the Magistrates’ Court.
[4] (2003) 231 LSJS 431 at [13] – [17].
These observations suggest that the proof of service notice withdrawn from exhibit P1 could be received by this Court into evidence on the grounds that the prosecutor’s alleged failure to tender the notice separately constituted a mistake giving rise to no unfairness to the respondent. However, as earlier observed, this was an alternative position submitted by counsel for the Crown. The primary position was that the magistrate erred in the withdrawal of the notice from the exhibit. As this primary position has been accepted it is unnecessary to determine this alternative issue.
Conclusion
The appeal is allowed. The proof of service was wrongly withdrawn as an exhibit. The proof should remain as part of exhibit P1. The ruling of the magistrate withdrawing the proof of service as part of exhibit P1 is set aside. The ruling of the magistrate dismissing the complaint is set aside. The prosecution has established a case to answer. The matter is remitted to the magistrate for further hearing.
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