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Roe v D'Costa

Roe v D'Costa

Case [2014] WASCA 118 6 June 2014

Breach of Contract

Unconscionable Conduct

Breach of Trust

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROE -v- D'COSTA [2014] WASCA 118

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 20 NOVEMBER 2013

DELIVERED : 6 JUNE 2014

FILE NO/S: CACR 74 of 2013

BETWEEN: NICHOLAS GLENN ROE
Appellant
AND
MARK NOEL D'COSTA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
Citation  :D'COSTA -v- ROE [2013] WASC 99
File No  :SJA 1135 of 2012

Catchwords:

Criminal law - Breach of restraining order - Whether presumption of imprisonment for third offence applicable where two previous convictions occurred on the same day - Interpretation of s 61A Restraining Orders Act 1997 (WA)

Legislation:

Misuse of Drugs Act 1981 (WA), s 32A
Restraining Orders Act 1997 (WA), s 61A
Sentencing Act 1995 (WA), s 39(3)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr G T W Tannin SC
Respondent: Ms K J Farley

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Legal Aid (WA)

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

Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554
Bahar v The Queen [2011] WASCA 249
Carter v Denham [1994] WAR 123
D'Costa v Roe [2013] WASC 99
Director of Public Prosecutions v Partridge [2009] NSWCCA 75; (2009) 74 NSWLR 62
Electrolux Home Products Pty Ltd v The Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309
Farrington v Thomson [1959] VR 286
Lee v NSW Crime Commission [2013] HCA 39
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
O'Hara v Harrington [1962] Tas SR 165
Oxenham v Connor [1976] WAR 118
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Skolnik [1982] 2 SCR 47
R v South Shields Licensing Justices [1911] 2 KB 1
Reid v Rowbottam (2005) 15 NTLR 1
Ryszawa v Samuels [1969] SASR 158
Schluter v Trenerry (1997) 6 NTLR 194
T v Bolitho [2010] WASC 30
The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
Turbitt v Pryce (Unreported, NTSC, 21 January 1998)

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against the decision by Hall J in D'Costa v Roe [2013] WASC 99. The appeal concerns the proper construction of s 61A(2) of the Restraining Orders Act 1997 (WA) (ROA).

Background

The background circumstances are as follows. Sometime prior to 3 July 2012, the respondent was served with a violence restraining order (VRO) which protected his wife and their two children. The order required the respondent not…

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.

Continue reading Roe v D'Costa

Details

AGLC: Roe v D'Costa [2014] WASCA 118
Case: [2014] WASCA 118
Decision Date: 6 JUNE 2014

CaseChat Overview and Summary

The matter of Roe versus D'Costa involved the interpretation of section 61A of the Restraining Orders Act 1997 (WA) in relation to the applicability of the presumption of imprisonment for a third offence of breaching a restraining order. The appellant, Roe, contested the presumption of imprisonment which arose due to the number of his prior convictions. The respondent, D'Costa, argued that the presumption should apply as Roe's previous convictions occurred on the same day, thus counting as separate offences. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court centred around the interpretation and application of section 61A of the Restraining Orders Act. Specifically, the court needed to determine whether the provision applied to multiple convictions occurring on the same day and whether this constituted separate offences for the purposes of the presumption of imprisonment. The crux of the issue was whether the literal wording of the statute, which referred to "previous convictions", should be given its ordinary meaning or if a more contextual interpretation was required.

The court held that the literal wording of the statute should be adhered to, thereby applying the presumption of imprisonment in this case. The court found that the language of the statute was clear and unambiguous, and thus should be interpreted as intended by the legislature. The court rejected the argument that the two previous convictions occurring on the same day should be treated as a single offence. The presumption of imprisonment was deemed applicable given the statutory wording and the appellant's history of breaching restraining orders.

In light of the above, the court dismissed the appeal and upheld the presumption of imprisonment. The appellant's argument that the two previous convictions should not count as separate offences was rejected, and the respondent's submission was upheld. The court made it clear that the literal interpretation of the statute was to be followed, and the appellant was to serve the sentence as prescribed by the law.

Orders