Schmidt v SA Police No. SCGRG 95/918 Judgment No. 5164 Number of Pages 11 Criminal Law and Procedure

[1995] SASC 5164

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Criminal law and procedure - criminal law - domestic violence confirming order made by a Magistrate under the Domestic Violence Act 1994s9(2) - appellant summoned to attend Court to show cause why the original order should not be confirmed under s9(2)(a) - the words "show cause" do not reverse the final onus of proof - they cast an evidentiary onus on the summoned defendant - the final onus to prove that the original order should be confirmed lies on the complainant - proof on the balance of probabilities is required (s17).

Domestic Violence Act (SA) 1994 s4, referred to.

HRNG ADELAIDE, 18 July 1995 #DATE 18:7:1995 #ADD 11:9:1995

Counsel for appellant:     Mr D Peek

Solicitors for appellant:    Morris Pearce And Associates

Counsel for respondent:     Ms L M Makiv

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal from an order of the Magistrates' Court at Port Adelaide on 29th May 1995. Mr Metanomski SM confirmed a Domestic Violence Interim Restraining Order. The order was made in favour of the wife of the appellant, Michele Schmidt, against the defendant John Francis Page Schmidt.

2. There are two ways in which an order can be made against a defendant under the Domestic Violence Act (SA) 1994 (DVA). A defendant can be summoned immediately on complaint for a hearing before the Magistrate. Alternatively, the matter can proceed on an ex parte application. A preliminary order is made. The defendant is later summoned to a hearing for a confirmation of that order (s9(2)).

3. Here an interim order was made ex parte. The hearing before the Magistrate was a "confirmation hearing".

4. Section 4 of the DVA states that a defendant commits domestic violence:-
    4(2)(c) if on two or more separate occasions
    (i) the defendant follows a family member; or
    (ii) the defendant loiters outside the place of residence of
    a family member or some other place frequented by a family
    member; or
    (iii) the defendant enters or interferes with property
    occupied by, or in the possession of, a family member; or
    (iv) the defendant gives offensive material to a family
    member or leaves offensive material where it will be found
    by, given to or brought to the attention of a family member;
    or
    (v) the defendant keeps a family member under surveillance;
    or
    (vi) the defendant engages in other conduct,
    so as to reasonably arouse a family member's apprehension or
    fear.

5. The order in question was an interim order dated 27th September 1994. The defendant, now the appellant, was restrained from:
    1. Attending at or being in the vicinity of premises at
    which Michele Carrie Schmidt may from time to time reside or
    be employed.

2. Contacting or approaching (directly or indirectly)
    whether in person, by telephone, writing or otherwise with
    Michele Carrie Schmidt.

3. Assaulting, harassing, threatening or intimidating
    Michele Carrie Schmidt.

4. Contacting or approaching any of the children of Rebecca
    Slater, David Shannon Slater or Laura Schmidt except, in
    relation to the child, Laura, any access arrangements as
    ordered by the Family Court of Australia.

6. At the confirmation hearing there were a number of allegations made by the complainant and her mother about the behaviour of the defendant. Many of these were fleetingly or vaguely recounted. In his reasons, the learned magistrate referred to five specific incidents described by the complainant and her witnesses which were alleged to justify a confirmation of the restraining order. These incidents were labelled A to E by Mr Peek, counsel for the appellant (the defendant before the Magistrate).

7. I set out a chronological list of all incidents, however tenuous, which might justify a restraining order, with some comments.
    - The complainant testified that prior to the separation,
     she had been punched and strangled on more than one
     occasion, including during her pregnancy. Mrs Grindley
     reported often having seen bruising on her neck and arms. The defendant denied this.

8. The separation is dated 4th September 1993.
    - After the separation the defendant rang the complainant
     late at night and threatened her.

9. The two following incidents were given as examples:-
    - In October 1993, the defendant called the complainant and
     threatened to come around and kill her and 'get' her
     family and take the baby. He was extremely drunk. He was
     in hospital at the time after an alleged attack on him by
     the complainant's brother. He called back at about
     11.30pm and a nurse came on the phone and said she
     couldn't control him. The complainant said that he later
     also called her ex-husband and her friend Carly Gibson.

The defendant gave evidence of his 'nervous breakdowns' at
     that time. He also said that he had been drinking and had
     been given medication on that occasion, but denied that he
     had threatened her, and said that he was affected by the
     medication rather than alcohol.

He said he had been trying to call someone else that night
     but could not remember the number and had dialled
     Michele's number by mistake because he was drugged and
     confused, and that they had talked for an hour. He
     reported her as having told him that her brother and his
     friends had tried to kill him, and that he was to be 'put
     away'. He said in cross-examination that he phoned her
     back to verify he was there (in Hospital). He agreed that
     at the time there was a Family Court injunction in place,
     restraining him from (inter alia) contacting her by phone.

- On a later occasion, a Friday night around 27 October 1993
     at about 7.30, the complainant said that the defendant
     called her and said that he had arranged supervisors for
     the handing over of Laura for an access visit. The
     complainant told him that they had already been arranged
     and he responded by yelling at her and threatening her.
     She said he sounded unstable and volatile. The defendant denied ever calling the complainant and threatening her.
    - The complainant said that in the first four weeks of
     access he would threaten her, while she held the baby,
     saying he was going to keep the baby, that he was going to
     get her, that she was a liar. He also threatened Mrs
     Doolan, the supervisor. The defendant denied threatening Mrs Doolan.
    - In cross-examination, the complainant also said that there
     were occasions when after an access visit when she had
     collected Laura from the police station the defendant had
     followed her car as far as Hanson Road. This was not put
     to the defendant specifically, but he denied ever
     following or stalking the complainant.

- At a child support review in February 1994 (transcript
     reads 1993, probably an error) the defendant asked to hold
     the baby. He was insistent and his manner frightened her.

- In March 1994 before a hearing at the Family Court, the
     complainant alleged the defendant threatened her. She
     testified that he came up behind her while she was smoking
     and said "Do you like breathing the oxygen? Do you like
     breathing air because you won't be doing that for much
     longer", that she got past him and that he followed her as
     she went upstairs. She said that he later sat next to her
     and said "Is there any hope for us, Michele?". The defendant's evidence was that he merely sat down with her and had a cigarette.
    - The complainant further testified that there were other
     times when he would threaten her "if he got a chance".
     She said that she took to hiding from him, and that
     instead he repeatedly rang her friend Mrs Doolan and
     threatened her. He twice called Mrs Doolan "Michele", and
     said they (Doolan and Michele) would be punished for what
     they had done. She said that sometimes there were 4 or 5
     messages from him on Mrs Doolan's answering machine. The
     calls stopped before the trial in the Family Court in
     April. The defendant denied making such threats.
    - The complainant told of another occasion, in March 1994,
     in which she called the defendant to tell him her car was
     broken down so he could not have it for the access visit.
     She testified that he said he would have her murdered, and
     have her tongue cut out over the lies she had told. He
     also said he would break her mother's knees and jail her
     brother and "get" Doolan. "If I don't get my way with the
     courts I'll do it myself". The defendant denied making any call threatening the complainant. However, he did later recount the complainant calling him to tell him the car was broken down, and refusing access on that basis. He did not elaborate on that conversation.
    - The defendant was required to present a document to the
     Family Court in July 1994 to answer for his earnings
     regarding child support. The complainant said that
     throughout it he denigrated her and her lawyer.

- Thursday 25.8.94 3.15pm: The complainant alleged that
     the defendant was in his car near the creche the
     complainant used. Her testimony was that he smirked at
     her, and that it frightened her because he was so close to
     the creche and he had previously threatened to take the
     baby. She denied in cross-examination that he was merely
     in the line of traffic. He was, on her evidence, parked
     on the side of the road.

10. He said that he was returning from an appointment with a dentist at Seacliff, which had finished at 1.30pm and was in a traffic jam at the end of Hanson Road. He testified that the complainant said something to her daughter Rebecca, and that they both laughed, and he gave them a friendly wave and she smirked at him.

11. The complainant had not said she had Rebecca with her.
    - Tuesday 30.8.94 about 11.05am: The complainant was taking
     Laura in a pram to the Doctor's surgery. The complainant
     says she saw the defendant parked on the side of her
     street. She said he gestured, nodded and smirked and
     drove off slowly. She said that when she had got to the
     Doctor's, which was three houses away, he had not yet left
     the street.

12. The defendant's evidence is that he was in the office on that day. Phone records and work-cards were presented to prove that denial. He denied having been there, and said he was too busy planning a trip to Sydney to be away. The Magistrate may have misunderstood the evidence on this issue. But even if "D" is subtracted from the case I think that makes no difference to the result.
    - Thursday 1.9.94: A letter from him, addressed in his
     handwriting, was pushed under her door, unstamped. She
     assumed it was delivered by him. She found the letter at
     about lunchtime. She and her daughter Rebecca were
     frightened that he had been so near, particularly in light
     of the sightings in D and E which had occurred within the
     last week. The complainant was concerned that the
     defendant seemed to be getting closer and closer.

13. The letter contained documents she needed and had asked for.

14. The defendant said that he had a friend deliver them, because "We had discussions in the past in the Family Court about Australia Post not working". In cross-examination the defendant said that the letter would have been delivered between 7.30 and 8.30pm.
    - The complainant said that since the interim order, dated
     27.9.94, for two weeks there had been a number of calls in
     which no one speaks, but breathing could be heard. On the
     3.12.94 (the same night as incident A, following) it
     happened twice. The complainant testified that this was
     the first time this had happened since she got a silent
     phone number.

- 3.12.94: The defendant called the complainant's telephone
     number and spoke to Mrs Grindley, the mother of the
     complainant. Her testimony was that he asked to speak to
     the complainant, but that she (Mrs Grindley) lied and said
     Michele was not there. At which "he raved on for quite a
     while about me going to jail... he kept going on my son
     would go to jail and Michele would go to jail and he just
     raved on... Never once asked for Laura, yet he hadn't seen
     her that day for access".

15. The defendant admitted making the call and asking for Michele. On that day he had on that day not had Laura for access, as planned, because the little girl had been ill. It was his evidence that he called because he "was very worried about Laura's health". He also admitted (with some argument) that he called the complainant after he had been served with a restraining order not to have contact with her. Further, he said he would continue to do so if she failed to give him access or failed to call and explain why. He gave evidence that the complainant had more than once withheld access without giving him reasons, or lying. He said that Mrs Grindley told him he "would be lucky to see Christmas".

16. The learned magistrate held (at 4 of his judgment) that this call was in clear breach of a restraining order, and that the defendant had admitted a total disregard for a court order.

17. The "labels" of Mr Peek appear alongside the relevant incident.

18. The learned Magistrate was clear in his judgment, delivered ex tempore, that on the balance of probabilities he preferred the complainant's version of events. In his reasons, the learned Magistrate made specific mention of the incidents labelled A to E and the phone call made from the hospital in October 1993. The learned Magistrate accepted the complainant's version of facts, except that the delivery of the letter (incident E) by the defendant. He held that not to have been proved. I repeat my comment about incident "D".

19. The appellant appeals.

20. The grounds of appeal are -
    1. The learned Magistrate erred in that he -
    (a) Approached the issue of confirmation of the order on the
    basis that the appellant was required to show on the balance
    of probabilities that it should not be confirmed whereas the
    onus remained on the complainant to justify the order.
    (b) Failed adequately to address the issue of whether there
    was a reasonable apprehension that the appellant might in
    future commit domestic violence.

2. The learned Magistrate erred in that he -
(a) failed correctly to delineate and assess the
    inconsistencies in the evidence of Michele Schmidt and Mrs
    Grindley and erred in simply preferring such evidence to
    that of the appellant.
    (b) failed to direct himself as to, or consider, or
    appreciate, the inconsistencies and infirmities in, and the
    unsatisfactory nature of, the evidence adduced to justify
    the order.
    (c) failed to give himself any or any sufficient warning as
    to the dangers associated with acting upon the evidence of
    Michele Schmidt and Mrs Grindley in all the circumstances of
    the case.

Mrs Grindley is the mother of the wife.

3. The learned Magistrate erred in that he failed to direct
    himself that no use, or alternatively strictly limited use,
    could be made of the evidence that Michele Schmidt had
    previously complained of assault and that Court Orders had
    previously been made against the appellant.

4. The learned Magistrate misdirected himself as to, and
    erred in his approach to and use of, the evidence of the
    appellant and as to his observations of the appellant in
    Court.

5. The learned Magistrate erred in that he misconstrued the
    nature and effect of evidence adduced and thereby drew
    incorrect inferences as to fact and matters of credibility
    and reliability.

5A. (as amended) The learned Magistrate erred in that he
    incorrectly admitted exhibits P4 and P7.

6. A miscarriage of justice has occurred and the appellant
    has been deprived of a fair hearing according to law as a
    result of the cumulative effect of the above matters.

7. The findings are unsafe and/or unsatisfactory and/or
    unreasonable and/or against the weight of the evidence.

21. In my opinion the most important ground of appeal is Ground 1(a) - suggested reversal of onus of proof. I will deal with it last.

22. I do not think that Ground 1(b) has been made out. I think that the Magistrate did address the issue of reasonable apprehension of violence correctly. He was required to look to the future in the light of past events. I emphasise that the Magistrate accepted the evidence of Michele Schmidt (the wife) and that of her mother. The Magistrate said in his reasons:-
    "The applicant has given evidence, which has not be(en)
    challenged, that she was during the currency of the marriage
    subjected to physical and verbal abuse by the defendant.
    This is important only from the point of view of the
    applicant's belief that she will be in danger if the
    defendant is not restrained from any contact with her.
    Subsequent to the separation of the parties a Family Court
    injunction was considered necessary to protection (sic) the
    applicant from the defendant. That order it would appear
    terminated with the conclusion of the Family Court
    proceedings. The defendant in 1993 was the subject of a
    restraining order which was withdrawn because it apparently
    duplicated the Family Court order."

23. Amongst other evidence the wife gave this evidence (after speaking of various incidents):-
    "Q. If the order wasn't granted you feel that this type of
    behaviour would continue.

A. John would feel that he had a licence to kill. He has no
    regard for police officers talking to him about his
    behaviour. He doesn't feel that what he has done in the
    past is a problem. He thinks that he will get away with it
    over and over again, which I suppose he has.

Q. Do you fear that these threats made by John, that he
    would carry that out. Is that a belief in your mind.

A. I think he would carry them out. I think that he doesn't
    seem to be able to control his behaviour. I think my life
    would be in great danger but I've got three children. I've
    got my son, Dave, who is now at my house again. I don't
    want him to have to go through what he did before either.
    I don't want the children to have to go through this any
    more.

Q. Has there been physical violence on you at all by John.

OBJECTION Mr Wyatt objects.

QUESTION ALLOWED

Q. There has been physical violence on you by John, is that
    correct.

A. That's correct.

Q. What type of injuries have you received.

A. Majority of times he would usually hit me with his fist
    in my head. He tended to put his hand around my throat. He
    would attempt to strangle me, squeeze my neck. This was
    when I was pregnant. One time he actually put his fist - I
    was pretty late pregnancy and he put his fist towards my
    stomach. That was on the way out after he had actually had
    me by the throat again against the wall because I threatened
    to call the police. This happened over and over again if he
    didn't get his way he would threaten me. He would usually
    use violence, physical violence. He would hit me a couple
    of times when I was in bed, actually when I was pregnant.
    I remember so many times that I made excuses for -

Q. Actual injuries.

A. Injuries. I went to work with marks around my throat.
    I had time off of work for that. I came here at the Police
    station around March and reported it. I was five and a half
    months pregnant. I had marks around my throat. People from
    my work came to my house and they saw it. My mum came to
    the police station that time and I couldn't go through with
    it. I wanted us to be together. I wanted John and
    I together.

Q. Is there any other incidents that you wish to relate to
    the court at all.

A. I think that's enough."

24. I hark back to the "list" which I have included in these reasons. Taking all the accepted evidence into account I think that it was well established, and certainly on balance, that the wife was under a perfectly reasonable apprehension that the appellant might, unless restrained, commit domestic violence (DVA s4(i)(a)). I do not see how the Magistrate could have found otherwise. That finding, of course, depended on his acceptance of the evidence of the wife and her mother.

25. Ground 2 complains that the Magistrate failed in the process of assessing the evidence. I have studied the evidence and the submissions of it by Mr Peek, for the appellant. I do not think that there were any significant inconsistencies in the evidence of the wife and her mother. Nor do I think, on a reading of the transcript, that the evidence was "unsatisfactory". That, of course, is really something about which the trier of fact can best judge by watching and listening to the witnesses. I think the Magistrate went about his task in an acceptable manner. I cannot think that the Magistrate was not alive to any danger lurking in acting upon the evidence of the wife and the mother. It is part and parcel of the life of a magistrate to be alive to the possibility of falsity in the evidence of "interested" persons.

26. I cannot agree with the submission contained in Ground 3. I think that any use made of evidence of previous complaints and the existence of court orders was justified. As I have said, the Magistrate, dealing with reasonable apprehension, was required to look into the future in the light of past events.

27. Nor can I find the faults suggested in Grounds 4 and 5 to be made out. It is sufficient to say that I think that the Magistrate approached the evidence, no matter by whom given, correctly. I think that the Magistrate understood the evidence perfectly well. I think that the exhibits mentioned in Ground 5A were correctly admitted into evidence but I do not think, as it happened, that the Magistrate made any use of them.

28. I think that the Magistrate reached his decision on assessment of the witnesses called before him. He said:
    "In terms of the manner in which the victim and the
    defendant gave their evidence I believe the victim to be a
    sincere credible and convincing witness. Insofar as the
    defendant was concerned I formed the contrary view. The
    defendant gave his evidence in a vague, arrogant,
    aggressive, and unconvincing manner. His outbursts in court
    and the manner in which he gave his evidence gave support to
    the likelihood that he would be likely to resort to
    intimidation if doing so achieved his purposes. I believe
    that he was present on the occasions alleged and acted in
    the manner alleged by the alleged victim. I believe that he
    intended to harass and intimidate the victim on each
    occasion." And:
    "In reference back to the telephone call from Kiandra
    hospital, in so doing he was in clear breach of a
    restraining order imposed by the court. He therefore
    admitted he showed total disregard for a court order. He is
    not in my view a man to be relied upon.

On the balance of probabilities I accept the alleged
    victim's version where it conflicts with that of the
    defendant and I am of the view that the victim would be
    subjected to further harassment and intimidation by the
    defendant."

29. These are the passages in which he tells us why he decided as he did. No fault, no miscarriage of justice, no unsafe or unsatisfactory finding is revealed.

30. But, of course, I must return to Ground 1(a). At the end of his reasons the Magistrate said:
    "I believe therefore that the order should be confirmed the
    defendant not having shown to the court in my view on the
    balance of probabilities why the order should not be
    confirmed."

31. Mr Peek submitted that the Magistrate had "reversed the onus" (my expression). He wrote in his Outline and spoke to the point:-
    "The second matter arising out of His Honour's remarks... is
    the submission that the onus was not on the appellant to
    show why the order should not be confirmed but rather upon
    the complainant to demonstrate at the end of the day that it
    should be confirmed."

32. There was much debate about Ground 1(a) before me.

33. Section 17 of the Domestic Violence Act provides that the Court is to decide (in proceedings other than for an offence) questions of fact on the balance of probabilities. So one party had an onus to prove something on the balance of probabilities.

34. Mr Peek submitted that the onus was on the complainant to (as I have quoted) "to demonstrate at the end of the day that it should be confirmed". By "demonstrate" Mr Peek meant "prove on the balance of probabilities". The verb demonstrate is, I think, better used in speaking of the "criminal onus". I think that in law the submission of Mr Peek is correct. I note that s9(2)(a) of the Domestic Violence Act speaks of the summoning of "the defendant to appear before the Court to show cause why the order should not be confirmed". Those words are capable of giving the impression that Parliament has cast a final onus on the defendant. I cannot think that that is what Parliament intended. The idea that a person faced with the penalty of an adverse order is called upon to prove that the order should not be made is inimical to basic ideas of proof and, indeed, of justice. It would require very clear words in a statute to bring about any "reversing" of the onus of proof. What then does s9(a)(2) mean? I think it means that an evidentiary onus is cast upon the defendant. When he answers the summons he may not stand mute or, at least, may not usefully do so. He must offer some fact or reason or argument capable of showing cause why the order should not be confirmed. That must then be weighed with the evidence of or called by the complainant. At the end the question for the Court must be "has the complainant proved on the balance of probabilities that the original order should be confirmed?'.

35. I think that the Magistrate did ask himself this question. I do not think that he fell into any error about onus of proof. He has said that he accepted the "alleged victim's version" on the balance of probabilities. I think that that was his decisive remark. It reveals correct reasoning. His reference to the failure of the defendant to show why the original order should not be confirmed is, perhaps, not as well expressed as it might have been. We must remember that a busy magistrate was giving an ex tempore judgment. Had those words stood alone Mr Peek's submissions might have prevailed. But the remark follows the "decisive remark". The Magistrate accepted, as he was entitled to do, evidence sufficient to found the making of an order confirming the original order. By speaking of a failure of the defendant to show cause the Magistrate is saying no more than that the object of the attendance of the defendant in Court was not achieved because the complainant established, on the balance of probabilities, that a confirming order should be made. I realise that the appellant was summoned to Court. He came. He had an object in attending even though he was compelled to attend. That object failed.

36. As Miss Makiv, for the respondent, wrote in her Outline:
    "The court having preferred the complainant's case, it
    follows that the defendant failed to show cause why the
    order should not be confirmed."

37. I dismiss the appeal.