Rowe v Gaunt
[2013] WASC 90
•20 MARCH 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ROWE -v- GAUNT [2013] WASC 90
CORAM: HALL J
HEARD: ON THE PAPERS
DELIVERED : 20 MARCH 2013
FILE NO/S: SJA 1128 of 2012
BETWEEN: MICHELLE ANN ROWE
Appellant
AND
LINDSAY MARK GAUNT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T R WATT
File No :AL 2676 of 2011
Catchwords:
Criminal law - Breach of restraining order - Restraining order expired before date of alleged breach - Conviction a miscarriage of justice
Legislation:
Restraining Orders Act 1997 (WA), s 61
Result:
1. Appeal is allowed.
2. The conviction, sentence and costs order on charge AL 2676 of 2011 are set aside.
3. A judgment of acquittal is entered on charge AL 2676 of 2011.
4. The appellant is granted a certificate under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) for costs fixed in the sum of $1,500.
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Liberti v The Queen (1991) 55 A Crim R 120
Topic v Lynch [2012] WASC 446
HALL J:
Introduction
On 19 January 2012 the appellant pleaded guilty to a charge of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the Act). She was sentenced to a conditional release order of 3 months in the sum of $250 and ordered to pay costs of $121.95. She now appeals against her conviction.
On 29 October 2012 the appellant filed a notice of appeal. The lengthy delay has been satisfactorily explained in an affidavit of Mr Graeme Payne, a Legal Aid lawyer. Mr Payne deposes that he represented the appellant in the Albany Magistrates Court on 19 January 2012. At that time it was his understanding, and the understanding of the appellant, that at the time of the alleged offence she was subject to a continuing restraining order. The plea of guilty was entered on that basis. On 24 September 2012 Mr Payne received a telephone call from a police officer who advised that it appeared that the appellant may have been wrongly convicted because records indicated that the restraining order had expired prior to the date of the alleged breach. In these circumstances I granted an extension of time and leave to appeal on 22 November 2012.
The respondent has now conceded that the appeal should be allowed and that the conviction should be set aside. For the reasons that follow I am satisfied that that concession has been properly made and that the appeal must be allowed.
Background
On 3 November 2010 an interim violence restraining order in respect of the appellant was granted in the Albany Magistrates Court. One of the conditions of that order was the appellant was not to approach within 5 m of any premises where the protected person lived or worked. The interim order was served on the appellant by a police officer on 4 November 2010.
A person served with an interim order has 21 days within which to advise whether or not they object to the interim order becoming final: s 31. An interim order will become final if the respondent indicates that he or she does not object or if he or she fails to respond within 21 days: s 32. If a respondent does object then a hearing date is fixed and all parties are notified: s 33. At the final order hearing the court can either dismiss the application or make a final order: s 42. The registrar of the court is required to prepare and serve a final order made at a final order hearing: s 44.
In this case it would seem that a final order hearing must have been held because a notice was sent to the appellant by the registrar of the Albany Magistrates Court on 9 December 2010 advising that the interim order was made final on that day. The notice also stated that the final order would remain in force for six months from the date that the interim order was served unless otherwise specified. There is no suggestion that the restraining order was subsequently amended or extended. Accordingly the final restraining order expired on 4 May 2011.
On 5 October 2011 the appellant was charged with breaching the restraining order. The alleged breach was that on 27 September 2011 she had gone to the house of the protected person and placed a hand written letter in the letterbox. This was said to breach the condition that the appellant not approach within 5 metres of the protected person's residence.
On 19 January 2012 the appellant appeared in the Albany Magistrates court and entered a plea of guilty to the charge. She was represented by Mr Payne on that day. The facts read to the court were consistent with the charge in that the allegation was that she had breached the order by coming within 5 metres of the protected person's home. The facts referred to the date on which the restraining order had been served but made no reference to the period of time that the order remained current.
A certified copy of the interim violence restraining order and the registrar's notification of the final order have been obtained and are annexed to Mr Payne's affidavit. The respondent takes no issue with the correctness of those documents.
Merits of the appeal
Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction where a plea of guilty has been made. However, an appellate court will approach any attempt to set aside a conviction based on a plea of guilty with 'caution bordering on circumspection': Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing).
Before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa, Steytler J referred to three well recognised circumstances in which a conviction based on a plea of guilty will be set aside:
1.when the appellant did not understand the nature of the charge or did not intend to admit guilt;
2.if upon the admitted facts the appellant could not in law have been guilty of the offence; and
3.where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.
In this case the allegation that the appellant breached the violence restraining order by approaching within 5 m of the protected person's home could not in law have constituted a breach of s 61(1) of the Act. The violence restraining order referred to in the charge was not in force as at the day that the breach was said to have occurred, namely 27 September 2011. The appellant's plea of guilty did not alter that fact. In these circumstances her conviction for breaching the violence restraining order was a clear miscarriage of justice.
I am compelled to note that this is the second occasion in recent times on which I have been called upon to set aside a conviction for breach of a violence restraining order where the alleged breach has occurred after the order has expired. See Topic v Lynch [2012] WASC 446. It is of course a necessary element of an offence under s 61 of the Act that there be a restraining order in force at the time the breach is alleged to have occurred. It is always possible that a protected person may complain to the police on the basis of a mistaken belief that a restraining order is still in force. Care must be taken to ensure that that is the case.
It would seem from the information provided by the police to Mr Payne that the police computer contained two different dates as to when the restraining order expired, 4 May 2011 and 4 November 2012. The former date was obviously the correct one but any confusion in that regard could easily have been resolved. Mistakes are always possible but in both this case and Topic errors could have been avoided by examining the original restraining order documents before any charge was laid.
Conclusion
Accordingly the following orders are made:
1.The appeal is allowed.
2.The conviction, sentence and costs order on charge AL 2676 of 2011 are set aside.
3.A judgment of acquittal is entered on charge AL 2676 of 2011.
4.The appellant is granted a certificate under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) for costs fixed in the sum of $1,500.
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