Rowe v Gaunt - [2013] WASC 90

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…

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 Rowe v Gaunt

Details

AGLC: Rowe v Gaunt [2013] WASC 90
Case: [2013] WASC 90
Decision Date: 20 MARCH 2013

CaseChat Overview and Summary

The case of Rowe v Gaunt involved the respondent, Gaunt, who was convicted of breaching a restraining order. The order had expired before the date on which the alleged breach occurred. Gaunt appealed his conviction, arguing that the court had no jurisdiction to convict him as the restraining order had already expired by the time of the alleged breach. The matter was heard in the Court of Appeal. The central legal issue was whether the court could validly convict Gaunt of breaching a restraining order that had expired before the date of the alleged breach.

The Court of Appeal held that a restraining order ceases to have effect once it has expired. Therefore, once the restraining order had expired, Gaunt could not be lawfully convicted of breaching it. The court found that the conviction was a miscarriage of justice as there was no legal basis for the conviction once the restraining order had expired. The Court of Appeal quashed the conviction and ordered a new trial. The Court of Appeal determined that the conviction was flawed as it was based on an order that had ceased to have effect.

Orders