| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : REGAN -v- GIBSON [2010] WADC 144 CORAM : DERRICK DCJ HEARD : 15 SEPTEMBER 2010 DELIVERED : 1 OCTOBER 2010 FILE NO/S : APP 82 of 2009 and APP 83 of 2009 BETWEEN : MURRAY JOHN REGAN Appellant
AND
KIM JEANETE GIBSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE TARR Citation : MURRAY JOHN REGAN v KIM JEANETTE GIBSON and KIM JEANETTE GIBSON v MURRAY JOHN REGAN File No : PE 1221 of 2009 and PE 2161 of 2009 (Page 2)
Catchwords: Appeal - Violence restraining orders - Failure by magistrate to issue warrant for arrest of witness - Apprehension of bias - Whether magistrate made error in refusing to grant violence restraining order - Whether sufficient grounds to justify making of violence restraining order
Legislation: District Court Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Restraining Orders Act 1997 (WA)
The Criminal Code(WA)
Result: Appeal dismissed Representation: Counsel:
Appellant : In Person
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Berry v Haynes Robinson [2009] WASCA 41
Butler v Bennett [2007] WADC 107
(Page 3)
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Gamage v The State of Western Australia [2008] WASCA 49
Hoskins v Armstrong [2008] WADC 168
Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488
Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
(Page 4)
Background 1 On 15 May 2009 the appellant made an application pursuant to s 25 of the Restraining Orders Act 1997 (WA) (the Act) for a violence restraining order (VRO) to be issued against the respondent (PE 1221 of 2009). On 10 September 2009 the respondent made an application pursuant to s 25 of the Act for a VRO to be issued against the appellant (PE 2161 of 2009). 2 On 9 October 2009 the two applications for final VROs were heard together by Magistrate Tarr at a final order hearing. The appellant and the respondent appeared in person at the hearing. The magistrate dismissed the appellant's application but allowed the respondent's application. His Honour therefore made a final VRO against the appellant for the benefit of the respondent pursuant to s 43 of the Act for a period of six months. The order is no longer in force. 3 The appellant now appeals against the decisions of the magistrate in refusing his application for a final VRO (APP 82 of 2009) and allowing the respondent's application for a final VRO (APP 83 of 2009).
Statutory provisions governing appeal 4 Pursuant to s 64(1)(b) and s 64(2) of the Act, a person aggrieved by the decision of a court in relation to a final order may appeal against the decision in accordance with Pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCPA). 5 Section 40(3) of the MCCPA, which appears within pt 7, provides that the appeal must be commenced within 21 days after the date of judgment and must be conducted in accordance with the District Court Rules 2005 (the DCR). Section 40(4) of the MCCPA provides that the District Court must decide the appeal on the material and the evidence that was before the Magistrates Court and on any other evidence that it gives leave to be admitted. Section 40(5) provides that leave may only be given to admit additional evidence on the appeal in exceptional circumstances. 6 Rule 50(1) of the DCR provides that an appeal to the court must be by way of a reconsideration of the evidence that was before the primary court unless the parties otherwise agree. (Page 5)
7 It is clear from s 40(4) of the MCCPA and r 50(1) of the DCR that an appeal from a decision of a magistrate to the District Court is by way of rehearing. The ability of the court to receive and admit new evidence does not render the appeal a hearing de novo: Butler v Bennett [2007] WADC 107 [10]; Hoskins v Armstrong [2008] WADC 168 [3]. 8 Given that the appeals are by way of rehearing, it is necessary for the appellant to demonstrate error in the court below: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [14];(2000) 203 CLR 194, 203-204. Thus the appellate powers of the court are only exercisable if the appellant demonstrates that the decisions made by the magistrate the subject of the appeals are the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172, 180 - 181. 9 The orders that I may make on the appeals if error is demonstrated are set out in s 43 of the MCCPA.
The grounds of appeal 10 The notice of appeal against the magistrate's decision to refuse the appellant's application for a final VRO is dated 27 October 2009. The notice asserts as the ground of appeal: Perverting the course of justice and conspiring to perverting course justice [sic]. 11 Similarly, the ground of appeal pleaded in the notice of appeal against the magistrate's decision to grant a final VRO against the appellant in favour of the respondent, which is also dated 27 October 2009, asserts: Conspiracy to pervert the course of justice and perverting the course of justice. 12 The grounds of appeal specified in the notices of appeal are not particularised as required by r 51(3) of the DCR. In any event they are misconceived and improper. They do not allege an error on the part of the magistrate in arriving at the decisions that he did. Rather, they assert without any reasonable basis for doing so that his Honour committed a criminal offence or offences. Accordingly, pursuant to s 43(4)(a), s 43(4)(b) and s 43(4)(d) of the MCCPA I strike out the grounds of appeal as pleaded in the notices of appeal. 13 On 24 February 2010, a judge of this court, no doubt in light of the problems with the 'grounds' as pleaded in the notices of appeal, ordered (Page 6)
the appellant to file grounds of appeal on or before 5 March 2010. On 5 March 2010 the appellant, in purported compliance with the order made on 24 February 2010, filed three documents. The first of the documents is headed 'Background Information'. The second document is headed 'District Court of Western Australia Appeal Number 82 of 2009 in the matter between Murray Regan and Kim Jeanette Gibson'. The third document is headed 'District Court of Western Australia Appeal Number 83 of 2009 in the matter between Murray Regan and Kim Jeanette Gibson. The three documents have a number of documents attached to them marked appendix one through to appendix 19. 14 The document headed 'Background Information' does not set out any ground of appeal. 15 The document headed 'District Court of Western Australia Appeal Number 82 of 2009 in the matter of Murray Regan v Kim Jeanette Gibson' reads as follows: 1. The Magistrate learns at the start of proceedings, page 5, paragraph 5, that the defendant has physically harmed my person and justifies the act in paragraph 8 that I was on top of a 72 yr old man. I tend [sic] the statement to this court of the 72 year old in question. Appendix 11. 2. Appendix 11 states, line 3; talking. This changes (page 3, line 2) Appendix 12. 'I was sound asleep'. Contradicting her own statement 3/8/09, Appendix 3, line 3. 3. The Magistrate would not accept either statement to be tended [sic] in court. 16 The document headed 'District Court of Western Australia Appeal Number 83 of 2009 in the matter between Murray Regan v Kim Jeanette Gibson' reads as follows: 1. The Magistrate would not accept evidence PE 1221/09. Re; Appeal 82. 2. Has the Magistrate (appendix 13, page 2, line 20) focused on a motor vehicle that the Police have had me before a court (13/7/09) [sic] with no evidence or claim to be before any court. That evidence was needed because they had charged me with criminal damage. 3. Appendix 12, line 4.' You will have to ask Mr Regan'. 4. See Background information. (Page 7)
5. Confusion reigns in the Magistrate (Appendix 14) after he asks the leading question (paragraph 7), 'did you or did you ….. car? Yes. The sigh in the audio edition by him is quite evident. He had got his answer with what was his original intentions [sic]. 6. Appendix 15, has the Magistrate assuming that I was an aggressor or approacher to the defendant, when she has self claims, Appendix 16, page 24, paragraph 10; 'As I approached …. extending garden…' 7. The Magistrate claims that he had no list of witnesses, presented by me. (Appendix 17, pages 30, 31, 43) 'that he would not attend this hearing.' Page 43. 8. Appendix 18. 9. How can a Magistrate accept a hearing by the defendant and then assume control over the matter, without being biased? He was biased in that I was removed for [sic] the original court to his, to hear the matter that he had already decided! No Mention Hearing for the defendant, yet during the lunch adjournment, his serving officer (Richard) is caught on the audio as he talks to a friend on the telephone, that he has two matters, this and another to follow. One VRO and the next case to be heard not. Listen before he hands down his decision on re-entering the Court after lunch. 10. Appendix 19, page 48, constantly approaching me and I have to close my door to her. This approaching continues to this day. She comes within inches of myself and if I should be talking to someone, she approaches the both of us, so I have to move away. She is enjoying this. I need a VRO to keep her away from me. 17 The appellant's documents marked as appendix 1 through to appendix 19 are as follows. 18 Appendix 1 and appendix 2 are copies of pages from the transcript of hearings that took place in the Magistrates Court on 5 June 2009 and 30 June 2009 in relation to the appellant's VRO application prior to the application being listed for final hearing. 19 Appendix 3 and appendix 4 consists of a copy of a three-page signed statement apparently made by the respondent to the police dated 3 August 2009 in relation to an incident which occurred on 26 March 2009 during which the appellant damaged the respondent's car. 20 Appendix 5 is a copy of the prosecution notice issued to the appellant dated 27 May 2009 charging him with unlawfully damaging the respondent's car on 26 March 2009. During the hearing of the appeal the (Page 8)
appellant confirmed that he had pleaded guilty to, and been convicted of, the charge. 21 Appendix 6 is a copy of the cover page of the transcript of proceedings that took place in relation to the prosecution of the appellant for unlawfully damaging the respondent's car. 22 Appendix 7 and appendix 8 are copies of two pages of transcript from a hearing that took place before the Magistrates Court on 20 August 2009 in relation to the appellant's application for a final VRO to be issued against the respondent. It was at this hearing that the appellant's application was adjourned to the final order hearing that took place on 9 October 2009. 23 Appendix 9 is a copy of four pages of the transcript of a hearing that took place on 10 September 2009 in relation to the respondent's application for a final VRO to be issued against the appellant. It was at this hearing that the respondent's application was adjourned to be heard together with the appellant's application at the final order hearing on 9 October 2009. 24 Appendix 10 is a copy of the restraining order summons issued to the appellant pursuant to s 26(3) of the Act requiring him to attend the hearing of the respondent's application on 9 October 2009. The summons was served on the appellant personally on 1 October 2009. 25 Appendix 11 is a copy of a three-page signed statement apparently made by Mr Raymond John Oakley to the police dated 26 March 2009 in relation to the incident that took place on 26 March 2009 during which the appellant damaged the respondent's car. 26 Appendixes 11 to 17 are copies of pages of the transcript of the final order hearing that took place on 9 October 2009. These pages have handwritten annotations on them made by the appellant. 27 Appendix 18 consists of three documents. The first document is a copy of a certified copy of a witness summons to give oral evidence issued by the Magistrates Court at the appellant's request pursuant to r 71(3) of the Magistrates Courts (Civil Proceedings) Rules 2005 (the MCCPR) to a Mr Rob Wolman requiring Mr Wolman to attend at the final order hearing. The second document is a copy of a certified copy of an unsigned service certificate completed pursuant to r 71(5) of the MCCPR which indicates that the appellant served Mr Wolman with the witness summons on 23 September 2009 at the Central City Medical (Page 9)
Centre. The third document is a copy of a certified copy of a request made to the Magistrates Court by the appellant pursuant to r 71(1) and r 71(2) of the MCCPR for witness summonses to be issued to four people requiring each of them to attend the final order hearing to give evidence. The four persons named in the document are Mr Rob Wolman, Mr John Ryan, Ms Leonie Tindale and Mr Colin McDonald. The certification which appears on each of the three copy documents is that of the deputy registrar of the Magistrates Court. 28 Appendix 19 is a copy of one page of transcript from the final hearing. It has on it handwritten annotations made by the appellant. 29 As is apparent from the above references to, and descriptions of, the documents filed by the appellant on the appeals, it is extremely difficult to identify from the documents any clearly expressed ground of appeal. Nonetheless, on the basis of the documents filed, and having heard the appellant's oral submissions, it seems to me that the appellant's main complaints about the proceedings and the magistrate's decisions are as follows: 1. The magistrate made an error in refusing to permit the appellant to tender as part of his case the statements apparently made to the police by the respondent and Mr Oakley in relation to the appellant's unlawful damaging of the respondent's car. 2. The magistrate made an error in proceeding with the final order hearing without permitting the appellant to adduce evidence from Mr Wolman (the respondent's doctor). 3. The magistrate made an error in proceeding with the final order hearing without permitting the appellant to adduce evidence from his doctor. 4. The magistrate was biased against the appellant and that this bias resulted in a miscarriage of justice. 5. The magistrate made an error in refusing to grant a final VRO against the respondent for the benefit of the appellant when the evidence before the magistrate justified or required the granting of the order. 6. The magistrate made an error in granting a final VRO against the appellant for the benefit of the respondent when there was no (Page 10)
evidence, or insufficient evidence, to support the granting of the order. 30 I will treat each of the appellant's above complaints as his grounds of appeal.
Failure to accept statements as exhibits 31 During the final order hearing the appellant sought to read and tender as part of his case the statement apparently made by the respondent to the police in relation to the incident during which the appellant had damaged the respondent's car. The magistrate refused to permit the appellant to do so. The appellant did not attempt to read or tender the statement apparently made by Mr Oakley. 32 The appellant did not during his case adduce evidence which authenticated the statement apparently made by the respondent. The respondent did not formally admit that she had made the statement. In these circumstances the magistrate's decision not to permit the appellant to read or tender the statement apparently made by the respondent as part of his case was correct. 33 The appellant did not ask the respondent in cross-examination to authenticate the statement. Nor did he attempt to question the respondent about aspects of the statement. Accordingly, no basis for permitting the statement to be tendered arose during the course of the respondent's case. 34 Given that the appellant did not actually seek to tender the statement apparently made by Mr Oakley the magistrate, contrary to the appellant's assertion, did not refuse to receive the statement into evidence. 35 In the circumstances the magistrate did not err as alleged by the appellant. In any event, the fact that the two statements were not tendered did not cause any material prejudice to the appellant occasioning a miscarriage of justice: Berry v Haynes Robinson [2009] WASCA 41 [35] - [36]. The statements on their face reveal that the appellant was involved in an altercation with Mr Oakley immediately after Mr Oakley had discovered the appellant unlawfully damaging the respondent's car, and that the respondent had grabbed the appellant by the hair in order to pull him off Mr Oakley. Nothing in the statements, even if they had been tendered and received as evidence of the truth of their contents, would have increased the likelihood of the appellant proving the criteria for the granting of a VRO as set out in s 11 of the Act (which I refer to in more detail in dealing with the appellant's fifth and sixth grounds of appeal). (Page 11)
36 For the reasons I have stated I dismiss this ground of appeal.
Proceeding with hearing in absence of witness Wolman 37 During the course of the final order hearing the appellant informed the magistrate that he wanted to call the respondent's doctor, Dr Wolman. He informed the magistrate that he had issued a witness summons to Dr Wolman and that he wanted to ask the doctor, 'Whether or not (indistinct) to the court here today whether or not you should grant the application et cetera'. The magistrate responded to this statement by telling the appellant that his proposed question was 'not an appropriate question to a doctor and in any event, there's some professional privilege about his relationship with a patient'. The appellant then said that the doctor had been 'called here today and the law states they must appear'. The exchange between the magistrate and the appellant then continued as follows: His Honour: Well, whether or not he might object to giving evidence and I have to consider that, but unless he was there witnessing any incidents, what evidence do you expect him to give?
Regan, Mr: Her violent nature, attacking people. I've seen her attack (indistinct). His Honour: Who's that? Regan, Mr: The person doesn't live in the flats anymore. His Honour: Well how does the doctor know about them? Regan, Mr: He would be the one to know her full mental state and help advise the court whether or not the application should be granted.
38 After the above exchange his Honour asked the appellant who his next witness was. The appellant informed his Honour that it was Ms Tindale. Ms Tindale was then called. 39 At the conclusion of Ms Tindale's evidence the issue of Dr Wolman was returned to. The magistrate informed the appellant that he could not see anything on the file to indicate that a witness summons to Dr Wolman had been issued or served on him. The appellant told the magistrate that he had served Dr Wolman with a witness summons and that he had filed the proof of service document with the court. The magistrate then asked his judicial support officer to call Dr Wolman. The judicial support officer told the magistrate that Dr Wolman was not present. (Page 12)
40 The magistrate then said to the appellant that Dr Wolman was not present and that it was his 'suspicion' that he was not going to be a witness that would help the appellant. To this statement the appellant responded, 'Yes, he's definitely a hostile witness to me, your Honour'. 41 The magistrate then told the appellant that if the appellant had been able to satisfy him that he had properly served a witness summons on Dr Wolman he might have been able to issue a warrant but that he did not believe 'in all the circumstances it's appropriate for me to issue a warrant against the doctor because I don't believe it would help your case'. The appellant said that the warrant should be issued. The magistrate repeated that there was no evidence before him that Dr Wolman had been served with a witness summons to appear before the court and asked the appellant whether he had any documentation to indicate that service had occurred. The appellant said that the documentation should be 'downstairs' and that the papers had been filed. His Honour said that he would find out if there were any documents downstairs and that after having done this he would make a decision about what to do in relation to Dr Wolman. 42 The hearing then proceeded with the respondent giving and calling evidence. 43 The above referred to exchanges between the appellant and the magistrate in relation to Dr Wolman occurred against the background of a comment made by the respondent to the magistrate in the course of her cross-examination of the appellant that her doctor had told her that one of her neighbours (no doubt the appellant) had attended his surgery and had asked him whether he would attend court 'if he put a summons on him'. The appellant told the magistrate that her doctor had thought that this was 'quite hilarious'. 44 After the evidence had been completed and the magistrate had heard submissions from the appellant and the respondent, his Honour said: In this case there are a couple of issues that have been raised that I should deal with before I deal with the case itself and one is in relation to Ms Gibson's doctor and a witness summons that was served on him. Do you have any – did you follow it up Richard? 45 The transcript records the judicial support officer's response as 'indistinct'. (Page 13)
46 His Honour then continued: Alright. Well there is no evidence before [sic] that he was served, but even if he was served, it seems to me that in the evidence he would be required to give, would be a privilege as a doctor/patient relationship. So for that reason, I'm not going to issue a warrant even if it was shown to me that he was served. 47 As I have already mentioned, the copy documents that have been provided by the appellant as appendix 18 include a certified copy of a witness summons to give oral evidence issued to a Mr Wolman and a certified copy of an unsigned service certificate completed by the appellant which indicates that the appellant served Mr Wolman on 23 September 2009. The Mr Wolman referred to in these documents is obviously Dr Wolman. It is not apparent from these copy documents when they were filed with the Magistrates Court. 48 The magistrate's decision not to issue a warrant for the arrest of Dr Wolman, to the extent that it was based on the existence of a 'doctor-patient' privilege, was clearly incorrect. There is no 'doctor-patient' privilege in legal proceedings. However, the magistrate's decision not to issue a warrant for Dr Wolman's arrest was not based solely on the supposed existence of the 'doctor-patient' privilege. It is clear from the magistrate's comments that he was not, despite the appellant's assertions from the bar table, satisfied that Dr Wolman had been served with a witness summons in accordance with r 71(4) of the MCCPR. Moreover, given the apparent absence of any documents on the court file going to prove service at the time that the magistrate was considering the issue, it cannot be said that his Honour had no basis for coming to this conclusion. In these circumstances I do not consider that the magistrate erred in refusing to issue a warrant for the arrest of Dr Wolman pursuant to s 16(2)(b) of the Magistrates Court Act 2004 (WA) for the purpose of bringing him before the court. Furthermore, given that the appellant did not actually ask for an adjournment of the hearing so as to permit him to call Dr Wolman, I do not consider that the magistrate made an error in proceeding with the hearing, and ruling on the applications, without hearing from Dr Wolman. 49 Even if I am wrong in arriving at my above conclusions I do not consider that the magistrate's decision not to issue a warrant for the arrest of Dr Wolman and to continue with, and determine, the applications without hearing evidence from Dr Wolman, caused the appellant any material prejudice occasioning a miscarriage of justice: Berry v Haynes Robinson [35] - [36]. As the appellant informed the magistrate, (Page 14)
Dr Wolman was going to be 'hostile' towards him. Moreover, the evidence which the appellant was apparently intending to attempt to illicit from Dr Wolman in relation to the respondent's mental state and allegedly 'violent nature' would not, in my view, even it is assumed that it would have been relevant and admissible, have increased the likelihood of the appellant proving that the criteria for the granting of a VRO as set out in s 11 of the Act had been established. 50 For the reasons I have stated I dismiss this ground of appeal.
Proceeding with hearing in absence of appellant's doctor 51 As I have already mentioned, on 1 October 2009 the appellant was served with a restraining order summons to appear at the final order hearing of the respondent's application for a final VRO to be issued against him. By virtue of s 54(1) of the Act, which deals with summonses relating to restraining orders, the appellant was required to be served with the summons at least seven days prior to the final order hearing. The restraining order summons was therefore served on the appellant in accordance with the time limit prescribed by s 54(1). 52 At the beginning of the final order hearing the appellant informed the magistrate that he had only been served with the summons to attend on the hearing of the respondent's application eight days previously. He said that he was a cripple, that he wanted to have his doctor present and that he had not had sufficient time to arrange for his doctor to attend court. There was then some further discussion between the magistrate and the appellant during which the magistrate ascertained that the appellant and the respondent had witnesses present to give evidence. The hearing then proceeded by the magistrate hearing the evidence of the appellant and his witnesses. 53 At the end of the evidence the magistrate invited the appellant to address him in relation to the evidence that had been given. As part of his address the appellant told the magistrate that he did not expect the respondent's application to have been heard 'today' and that he had not had the opportunity to subpoena his orthopaedic surgeon. When he was asked why he wanted to call his orthopaedic surgeon the appellant responded: That I can't catch a two-year-old ... The two-year-old child I was in charge of was to run towards a train or a bus, I cannot run after them and do anything. 54 Having heard from the appellant, and after giving the respondent the opportunity to address him, the magistrate, immediately after dealing with (Page 15)
the issue of Dr Wolman and immediately before adjourning for lunch, said the following: Now, Ms Gibson made application to the court on 10 September, a month ago now and at that time the court was aware as there was a final order hearing listed for today involving the same people and that’s why that matter was listed today to be heard at the same time. It would be a nonsense for that matter to be given another hearing date and heard separately from this matter. So what I've done today is I've heard both matters together. Now, Mr Regan claims that he would like to have called his doctor to give evidence about his physical condition, but his physical condition really isn't an issue in this matter. He has given evidence that he's on a disability pension. You've got a walking stick. He doesn't need it all the time. I accept that he does have some disability. So I'm not going to adjourn this matter to enable him to call his doctor because his doctor's evidence would, in my view, have no bearing on this issue. 55 In my view the magistrate did not make an error in refusing to adjourn the final order hearing to enable the appellant to call his doctor. I am also of the view that the magistrate's refusal to adjourn the hearing did not cause any prejudice to the appellant resulting in a miscarriage of justice. The magistrate accepted that the appellant was under a disability. Moreover, given the nature of the evidence that was adduced at the final order hearing (which is referred to further below) medical evidence of the appellant's disability would not have advanced his cause. I therefore dismiss this ground of appeal.
Magistrate's alleged bias 56 The appellant's contention, which was elaborated on when he made his oral submissions, is that the magistrate was biased against him from the start of the final order hearing and that this bias caused him to arrive at decisions that were unfairly adverse to the appellant. The appellant asserts that the magistrate was 'aloof', ran the hearing as he wanted to and commonly used an unpleasant tone of voice to him. The appellant also asserts that the magistrate's bias is revealed by recorded comments that were made by his judicial support officer during the luncheon adjournment at the final order hearing, and the magistrate's reference to the appellant as 'the accused' when his Honour was handing down his decision on the applications. 57 The test to be applied when it is alleged that a judicial support officer has been, or might be, actuated by bias is whether fair minded people might reasonably apprehend or suspect that the judicial officer has (Page 16)
pre-judged or might pre-judge the case: Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47; Johnson v Johnson (No 3) [2000] HCA 48 [11]; (2000) 201 CLR 488, 492; Gamage v The State of Western Australia [2008] WASCA 49 [54]. The fair-minded person is one who should be taken to have informed himself or herself on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances: Johnson v Johnson [53] 508; Gamage v The State of Western Australia [54]. 58 I have listened to the recording of the judicial support officer's comments made during the luncheon adjournment which the appellant places reliance on. The comments were made at or around 2.15 pm before the magistrate came back into court to give his decision on the applications. The first set of comments was as follows: Hi, it's Richard here. I've just about finished the two matters that I took as farm outs. Are there any other further matters? I have just been unable to get hold of Paul. Oh, so once this … we should just take one of those. You can send one of those up here then I guess. Yes please, 38. 59 The second set of comments would appear to have been made by the judicial support officer while he was talking to the magistrate on the phone shortly before the magistrate came into court. The comments were as follows: I've been asked to take one additional restraining order, is that Ok with you? Ok then. Ok thanks very much. When you're ready just come down. Yes, they are. 60 During his conversation with the magistrate the judicial support officer laughs obviously in response to some comment or comments made by the magistrate. 61 The appellant's contention, as I understand it, is that the above comments made by the judicial support officer in some way indicate that the magistrate had made up his mind on the VRO applications made by the appellant and the respondent before hearing all of the evidence or regardless of the evidence before him. I do not accept this submission. There is nothing in the comments made by the judicial support officer to indicate that the magistrate had pre-determined the matters before him. They reveal nothing other than the judicial support officer trying to ascertain what other matters, if any, the magistrate would be required to deal with that day and informing the magistrate of what he had ascertained. (Page 17)
62 In delivering his reasons for decision the magistrate did, on one occasion, refer to the appellant as 'the accused'. He did this in the course of reciting the evidence given by one of the witnesses called by the appellant, namely Mr John Ryan. The magistrate said: He [that is, Mr Ryan] said that he had been told by Ms Gibson that the accused [that is, the appellant] had said he was going to shoot her, but that was a fair while ago. 63 It is unfortunate that the magistrate referred to the appellant as the 'accused'. However, it is quite clear that this was simply an inadvertent slip on his Honour's part. Throughout the rest of the delivery of his reasons for decision the magistrate referred to the appellant as 'Mr Regan' or 'the applicant'. The fact that the magistrate inadvertently referred to the appellant as 'the accused' on one occasion during the entire final hearing does not give rise to a reasonable apprehension or suspicion that the magistrate had pre-judged the applications before him. 64 I have reviewed the transcript of the final order hearing. In my view there is nothing that occurred during the final order hearing which could cause a fair-minded person to reasonably apprehend or suspect that the magistrate was actuated by bias against the appellant. To the contrary, it appears to me from reading the transcript that the magistrate did his best in difficult circumstances to ensure that the appellant understood not only what he was required to prove in order to obtain a VRO but also the process of giving and adducing evidence through examination-in-chief and cross-examination. It also appears to me that the magistrate made every endeavour to ensure that the appellant was given the opportunity to fully present his case. Accordingly, I dismiss this ground of appeal.
Decisions not supported by the evidence 65 It is convenient to deal with the fifth and sixth grounds of appeal together.
Legal principles 66 Section 11A of the Act provides: (Page 18)
67 Section 3 of the Act defines 'act of abuse' as 'an act of family and domestic violence or an act of personal violence'. The appellant and the respondent were not in a 'family and domestic relationship' within the meaning of the definition of that phrase contained in s 4(1) of the Act and therefore their applications were not made on the basis that the relevant acts of abuse or threatened acts of abuse were 'acts of family and domestic violence' within the meaning of s 6(1) of the Act. Rather, the applications made by both the appellant and the respondent were founded on the 'act of personal violence' limb of the definition of 'act of abuse'. 68 Section 6(2) of the Act, so far as is relevant, defines 'act of personal violence' to mean 'assaulting or causing personal injury to the person' or threatening to do so. Section 6(4) of the Act relevantly defines 'assaulting' to include an assault within the meaning of The Criminal Code. In simple terms, an assault is defined in TheCriminal Code to include striking, touching or otherwise applying force to a person without that person's consent.
The evidence 69 The appellant gave evidence in support of his application for a final VRO. He also called three witnesses, Mr Colin McDonald, Mr John Ryan and Ms Leonie Tinsdale. 70 The appellant's evidence-in-chief, which was elicited by the magistrate asking appropriate and proper questions, was to the following effect: 1. He lives at unit 30, 11 Marchamley Place, Carlisle. The respondent lives at unit 25. The units are 10 metres apart as the crow flies. 2. At 2.20 pm on 6 October 2009 the respondent approached him and claimed that he had interfered with her watering can. 3. On 4 October 2009 the respondent was 'as usual' interfering with him and was in his face and walked within 30 centimetres of him. (Page 19)
4. On 3 October 2009 the respondent mentioned something in relation to the restraining order to him. 5. On 2 October 2009 he was sitting outside his unit and the respondent walked within inches of him. 6. On 16 May 2009 he had guests outside his place and the respondent quietly walked up to them and told them all to 'eff off'. 7. On 13 May 2009 the respondent approached him and said that she needed to speak about the garden. He told the respondent to 'eff off' and the respondent 'chasing after me, hit me, touched me'. 8. He 'can be at a premises visiting a neighbour and [the respondent] is bashing her way in the door to get at me'. 9. The respondent has been threatening him 'just to touch her and yet she is right within and falling over the top of me and I'm trying to get away'. 71 In cross-examination the appellant said that on 26 March 2009 the respondent and Mr Oakley had attacked him. This was a reference to Mr Oakley fighting with the appellant immediately after Mr Oakley had seen the appellant damaging the respondent's car. He said that the respondent had tried to grab him while Mr Oakley was attacking him. 72 Mr McDonald was one of the residents in the block of units at 11 Marchamley Place, Carlisle. He lived in unit 23. When Mr McDonald gave evidence he spoke about an occasion when the appellant was at his unit drinking and the respondent knocked on the door. He said that when he opened the door to see the respondent there he said that she could not come in because the appellant was inside. He said that the respondent said that she wanted a drink and that he told her that she could not come in because the appellant was there. He said that the respondent proceeded to come in through the door and that he more or less closed the door in her face and moved her outside his place. He said that at the time he understood that the appellant and the respondent were not allowed to come into contact with each other. He said that the respondent had never caused or incited violence to him. 73 Mr Ryan was another resident of the block of units in which the appellant and the respondent lived. He described an incident that he witnessed about a month previously. He said that he heard a commotion and came out onto his balcony. He said that he saw the appellant and the (Page 20)
respondent in the communal garden having a confrontation and that the appellant got 'quite nasty about it and told her to bugger off'. He said that the appellant at the time also said to the respondent that, 'We've got paperwork against us. We shouldn't even be speaking so close together'. He said there was no physical contact, although the appellant did get quite verbal. He said that the appellant was the aggressor. He said that it had been the respondent who approached the appellant but that she had not done so 'nastily or aggressively'. He said that the respondent approached the appellant nicely. He said that when the appellant was walking away from the respondent he was still aggressive. He confirmed in examination in chief that the respondent had told him that she feared that the appellant was going to shoot her. He said that he did not know of any incident where the respondent had physically harmed another person in the flat. 74 The final witness called by the appellant was Ms Tinsdale. She testified that she did not know of any incidents where the respondent had been violent or done anything to anybody at the flat. She said in answer to a question asked in examination in chief that the respondent had told her that she was fearful that the appellant would get a gun and shoot her. She said that the respondent was a good friend. She said that she did see the damage to the respondent's car. She said that the front windscreen was smashed in, the side window mirror was smashed, the driver's window was smashed, the window just behind the driver's seat was smashed, the roof had a dent in it, and the bonnet had a dent in it. 75 The respondent gave evidence and called one witness, Mr Oakley. The magistrate facilitated the respondent giving her evidence by asking appropriate and proper questions of her. 76 In her evidence-in-chief the respondent confirmed that she lived at unit 25, 11 Marchamley Place in Carlisle. She said that her difficulties with the appellant had been going on for months and months. She said that the appellant had verbally abused her. She said that the police had charged the appellant in relation to damaging her vehicle. She said that the last incident that she had with the appellant was in early October when she was going to the communal vegetable garden and the appellant swore at her and called her 'a slut'. She said that the appellant was 'just going mental'. She said that it was ludicrous to suggest that the appellant needed a restraining order against her and that she had no intention of doing anything untoward to him. She said that during some barbeques, which members of her block of units attended, the appellant said that he had firearms inside his unit and that he had a bullet with her name on it. (Page 21)
77 When the respondent finished giving her evidence-in-chief the magistrate asked the appellant if he had any questions that he wanted to ask. Mr Regan responded to this invitation by telling the magistrate that the respondent had told lies. The magistrate told the appellant that it was his opportunity to ask the respondent questions and that if he did not ask her a question he would assume that he did not have any questions to ask her. The magistrate then again asked the appellant if he had any questions for the respondent. The appellant said that he did. The magistrate then said to the appellant that he should ask questions but that if there was anything inappropriate about his questions he would stop the appellant asking them. 78 The appellant at this point, instead of commencing to ask questions, proceeded to make to the magistrate further statements of complaint about the respondent. The magistrate, after allowing the appellant to make his statements for a short time, told the appellant that he obviously did not have any questions for the witness and that he could sit down. Consequently the respondent was not cross-examined. 79 In his evidence-in-chief Mr Oakley said that he was 73 years old and that he lived in the units at 11 Marchamley Place. He confirmed that the appellant had obtained a restraining order against him. He said that he did see the appellant damage the respondent's car with an iron rod, that the appellant had done a lot of damage to the car and that the car was as a result unusable. 80 In cross-examination Mr Oakley agreed with the proposition put to him that he and the appellant had come to 'physical closeness'. He said that this occurred when the appellant had 'smashed the respondent's car up'. He said that the appellant was the one who 'keeps on fighting all the time'.
The magistrate's ruling 81 In handing down his decision, the magistrate summarised the evidence given by the witnesses. His Honour then said the following: Now, Mr Regan was invited to set out the grounds that he was relying on for the violence restraining order and it seems to me there is nothing in his evidence, nor any evidence of the witnesses he called which would suggest that he was in any danger from Ms Gibson, that she was not the aggressor. It is clear from the evidence that there is some animosity between them, but it also seems from the evidence that Mr Regan is responsible for most of that and it does seem as though alcohol is a catalyst to some of the problems that are going on at the units. (Page 22)
So at the end of the day in relation to Mr Regan's application, I am not satisfied to the required standard on the balance of probabilities that he has grounds for the violence restraining order against Ms Gibson and that application will be dismissed. Now in relation to the application by Ms Gibson, there has been evidence that there has been damage to her motor vehicle and evidence that Mr Regan has been aggressive towards her and has made threats. Whether or not he had an intention to carry out the threats is not to the point. He made threats that he had a firearm. He made threats that he had a bullet with her name on it and she has said in her evidence that she is concerned and frightened of him. Now just stand up, Ms Gibson. There's always some difficulty with restraining orders in the community like this. I don’t have a magic wand. I can't make everyone in these sort of situations behave appropriate [sic] towards each other or to just ignore each other. It seems to me for the reasons that I have said, there are grounds for me to make a violence restraining order on your application against Mr Regan. I don't know whether that's the answer and whether or not that's going to lead to more problems. 82 His Honour then asked the respondent if she could see another way of the matter being dealt with in the absence of a restraining order. His Honour told the respondent that he could invite the appellant to provide an undertaking but that she would have to be happy with that. The respondent replied by stating, in effect, that she had 'tried and he just slams the door' and that the situation was 'real nasty'. The magistrate then proceeded to make the final VRO against the appellant.
Magistrate's findings justified on the evidence 83 In my opinion it was open to the magistrate to conclude that the appellant had failed to prove the necessary grounds for the making of a final VRO against the respondent for the appellant's benefit. In my view it was reasonably open to his Honour that the evidence was not sufficient to prove that the respondent had committed an act of personal violence against the respondent (the Act, s 11A(a)) or that the appellant reasonably feared that the respondent would commit an act of personal violence against him: the Act, s 11A(b). In particular, and in light of all of the evidence, I do not consider that the appellant's passing and disjointed reference to the respondent 'chasing after me, hit me, touched me' required the magistrate to conclude that the respondent had committed an act of personal violence against him. Moreover, even if this evidence did justify such a finding, the balance of the evidence did not compel a finding that the respondent was 'likely again' to commit an act of personal violence against the appellant: the Act, s 11A(a). (Page 23)
84 As to the magistrate's decision to grant a final VRO against the appellant for the respondent's benefit, it would appear from his Honour's comments, although his Honour did not expressly say so, that his Honour's decision to grant the order was based on a finding that the respondent reasonably feared that the appellant would commit an act of personal violence against her. In my view, the evidence that the appellant had damaged the respondent's car, had on occasion acted aggressively towards the respondent, and had told her that there was a bullet with her name on it, provided a sufficient basis for his Honour to make this finding and consequently to conclude that the grounds for the making of the order had been established: the Act, s 11A(b). Accordingly, I do not think that his Honour made an error in allowing the respondent's application and making the final VRO against the appellant. 85 It follows from the above that I would not uphold this ground of appeal.
Conclusion 86 For the reasons that I have stated I dismiss the appellant's appeals.
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