Smith v Andricopoulos
[2003] TASSC 87
•16 September 2003
[2003] TASSC 87
CITATION: Smith v Andricopoulos [2003] TASSC 87
PARTIES: SMITH, Lee Vincent
v
ANDRICOPOULOS, Peter
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 75/2003
DELIVERED ON: 16 September 2003
DELIVERED AT: Hobart
HEARING DATES: 9 September 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: M Healy
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 87
Number of Paragraphs: 12
Serial No 87/2003
File No LCA 75/2003
LEE VINCENT SMITH v PETER ANDRICOPOULOS
REASONS FOR JUDGMENT SLICER J
16 September 2003
The applicant seeks review of a decision of a court of petty sessions to grant an adjournment of the hearing of an application to revoke an interim restraint order. Given that his actual grievance concerns a different and wider issue, it is necessary to consider the details and outcome of the proceedings giving rise to the motion to review to explain the outcome of this appeal.
On 18 July 2003, police were called to the residence of the applicant and his partner, at the request of the partner, following a domestic disturbance. Mr Smith was arrested and taken to a police station where he was processed and bailed. He disputes the propriety of the original call to police by his partner and the basis of his arrest. It would appear that there was some history of previous contact with police which had resulted in complaints being made by the applicant to Tasmania police. On 28 July 2003, the respondent, a police officer, made an application for a restraint order, naming as the person to be protected the partner, C.
Mr Smith was bailed to appear in the court of petty sessions on 23 July 2003. On that day, he appeared and showed cause and the matter was adjourned for hearing until 25 November. The court made an interim restraint order in terms that the applicant:
"1 not stalk [C] (see definition of 'stalking' and related provisions as they appear in section 106A of the Justices Act)
2 not directly or indirectly threaten, harass, abuse or assault [C]"
No time limit was specified in the interim order which was either in contravention of the Justices Act 1959, s106D(2) or will expire on 23 September by virtue of the operation of that section. In either case, it did not extend to the date of the adjourned hearing. No order was made extending the order as permitted by the Justices Act, s106D(3).
On 5 August, Mr Smith made an application for the revocation of the restraint order, stating as a reason:
"Since Police with no regard to the real facts arrested me & sought an urgent order at a night sitting. The Applicant [C] has visited me at home on or about 4 or 5 occasions & we have also had lunch & several outing [sic] together."
Under the heading "other relevant matters", he stated:
"The Police in this instance have relied on their own prejudices against me & paid no regard to the application which clearly asks for facts not fiction. They should be reprimanded."
Police officers attending the applicant's home on 18 July had taken a detailed statement from C alleging acts of violence.
The revocation application was returned to a court of petty sessions on 7 August. When C was called, she did not appear. The police prosecutor appearing at the hearing did not have carriage of the matter with the responsible officer being delayed at another court. Following a short adjournment, the case officer appeared, after which the following exchanges occurred between the magistrate, the prosecutor and the applicant:
"Mr Driver, Mr Smith's made an application to revoke a restraint order which he says as far as he was aware was to be unopposed and the matter was listed today for the first time on that application. Initially I adjourned the matter until next week sometime so that instructions could be got from the applicant to see whether he opposes the application. If she doesn't well obviously I can revoke the order, if she does I need to adjourn for evidence. So - and I understand you might have had some knowledge of it, that's why you're here.
MR DRIVER: Absolutely no knowledge at all ‘til I walked through that door just a few moments ago.
HIS WORSHIP: Okay.
MR DRIVER: Certainly I'd be seeking in the first course that it be adjourned perhaps 'til next week in order that we can speak with the other party and take instructions.
HIS WORSHIP: All right. Mr Smith, you said you were going interstate next week?
MR SMITH: I was wanting to, your Worship. It just seems to me that it makes a mockery of the system by -
HIS WORSHIP: There's no use preaching to me about it because the procedural obligations that I have are that I need to give the other party to the application the opportunity to respond to it. If they want a reasonable opportunity to do that, that is what I will do and I will put it - if you don't want to do it next week I'll have to do it the week after because I haven't got any time this week. If you want me to put it to another date, that's fine, but I haven't got any time this week to hear the matter so if you'd rather me not put it in next week I'll put it in the week after.
MR SMITH: I think I hear what you're saying, your Worship.
HIS WORSHIP: Well I hope so.
MR SMITH: Could I just clarify this - could I clarify this. If I serve a summons on a person requiring them to attend court and there are two parties that I need to serve it on, the police and the original applicant who the police are acting on behalf of. If I do all those procedural things correctly how can it be that they just don't turn up and they don't get instructions yet I'm penalised, I give up my time, I attend as per the format laid out and the prosecution comes here and tells you Mr Driver's not available, Mr Driver comes here and says he knows nothing about it.
HIS WORSHIP: Just - just - just a moment.
MR SMITH. To my mind the left hand doesn't know what the right hand's doing and I'm the one penalised.
HIS WORSHIP: First, the person is entitled to have the matter adjourned, that's an entitlement.
MR SMITH: The police are asking for an adjournment, the applicant - the original applicant, who I will be visiting as soon as I leave this court, has no desire for this to continue.
HIS WORSHIP: Well that's a matter for you, that's a matter for you. Do you want me to put -
MR SMITH: The police are just stretching this out for my inconvenience.
HIS WORSHIP: Look, Mr Smith, do you want me to put the matter on for next Monday or not?
MR SMITH: I will cancel my interstate trip and I will add costs to my bill and I will attend next week, your Worship.
HIS WORSHIP: All right, two fifteen.
MR SMITH: And it's a lay down misere and I will wipe the floor with the prosecution.
HIS WORSHIP: All right. 11th August, at two fifteen.
MR SMITH: And if they're not embarrassed they damn well should be.
HIS WORSHIP: All right, 11th August.
MR SMITH: If this could happen to me it could happen to anyone.
HIS WORSHIP: Just go away until the 11th August, 11th August at two fifteen.
MR SMITH: What do we get arrested for next, eating?
HIS WORSHIP: Well no, Mr Smith, just on your way now.
MR SMITH: You ought to be ashamed of yourself.
HIS WORSHIP: Just a moment.
MR SMITH: Thank you, your Worship."
The applicant did not enhance his cause by his comments. On the resumed hearing the prosecutor told the magistrate:
"That's right, and in the interim I've made several enquiries. It resulted in a telephone conversation between myself and the protected party, [C] this morning. It was a mobile phone call to her. In that conversation she indicated that she didn't want to proceed with the matters but I then went on to say was she free to speak to me at that time and was Lee Vincent Smith present. She said she was in a meeting. I came to an understanding with her that she would present herself at court here today and she would ask for the matters not to proceed, however I ask that her name be called, but I understand that she's not here."
and following the formal calling of C, who did not appear, the following exchanges occurred:
"That concerns me because I had a conversation with Mr Smith just before court began I anticipated she would be here, he told me categorically she would not be attending. He went on to relate the details of the telephone conversation that I had with her this morning insofar as that I'd told her to be here, asked her to be here, that I required her here, that I'd asked whether he was present or not, information which doesn't fill me with confidence bearing in mind one of the restraints at item 4, not to approach the particular person directly or indirectly, including telephone, e-mail, facsimile or letter. But I give Mr Smith the benefit of the doubt, however I'm not -
MR SMITH: This is just ludicrous. I didn't say that at all.
HIS WORSHIP: He's just telling me - I'm not listening to any evidence, Mr Smith, sit down. Yes, Mr Driver.
MR DRIVER: I'm not in a position to recommend or to ask that this matter be revoked, I have great concerns for [C]. I've made verbal arrangements for her to be here, she's not here.
HIS WORSHIP: Well this is an application for revocation, obviously. You're not in a position to consent to that, as I understand it, so the Court will need to hear evidence about it.
MR DRIVER: Sir, I ask that the matter be listed to take that evidence.
HIS WORSHIP: Yes, I'll have to do that, I don't have any choice, Mr Smith. I need to adjourn this application for hearing so that I can hear the evidence about why you say the matter should be - order should be revoked.
MR SMITH: From whom, your Worship?
HIS WORSHIP: From you, and I will need to hear any evidence that the respondent wishes to call in response. If the respondent doesn't turn up on the next occasion I'll hear the evidence and see whether the order ought to be revoked.
MR SMITH: So do you have a policy if the respondent doesn't turn up three times now instead of twice -
HIS WORSHIP: No, no, no, no, this situation is somewhat unusual, Mr Smith.
MR SMITH: It's not unusual – (overtalking)
HIS WORSHIP: I'm telling you it is, just sit down for a minute, please, I'll try and give you a date for the hearing of this.
MR SMITH: Well I'd like you to explain it, your Worship.
HIS WORSHIP: Well the situation's quite simple. The police officers are not in a position to be able to indicate whether the respondent to this application consents to it or opposes it. Now the respondent to this application, to your application, if she's going to accede to it and consent to the orders being discharged, ought to be here. She's not here, therefore it's not appropriate for me to proceed to discharge the orders in her absence.
MR SMITH: Correct me if I'm wrong, your Worship, I thought I heard Mr Driver say that she said that she didn't want to proceed with it.
HIS WORSHIP: Yes, but she needs to be here to tell me that.
MR SMITH: But she doesn't wish to be here because she's looking after our son, she won't be here, your Worship I can guarantee you that.
HIS WORSHIP: All right.
MR SMITH: She's nervous about her attendance here.
HIS WORSHIP: Well she will need evidence.
MR SMITH: She doesn't want to be here, it's a waste of time.
HIS WORSHIP: Just a minute, she will need - she will need to go and see the prosecuting people in person to do that.
MR SMITH: She won't do that either, your Worship. I assure you.
HIS WORSHIP: All right, I'll adjourn the application for hearing. I'm going to adjourn this for hearing, all right.
MR SMITH: That's all right, your Worship, my costs are piling up.
HIS WORSHIP: Now the date will be the 14th November in court 5 at 10:00 a.m. Now you will need to serve the other person with a copy of a notice of adjourned hearing for that date. Mr Driver, I don't take it that you'd have instructions to accept that so that should be done and the Court would need to be satisfied the person's been served. Now if the person wants to consent to the orders being revoked the only way to do that is to consult with the police officers and - or the prosecuting officer.
MR SMITH: There is another way, your Worship, which I'll be taking this afternoon, that's apply to the Supreme Court (inaudible phrase).
HIS WORSHIP: Well - matter for you, matter for you.
MR SMITH: Thank you very much.
HIS WORSHIP: All right.
MR SMITH: It's ridiculous.
HIS WORSHIP: 14th November, court 5."
It is from the grant of adjournment that this appeal is made. His motion to review claims error on the basis that:
"… on application for Revoke [sic] Restraint Order I served notice on the Applicant (Police) & witness of the hearing date & the particulars & the application. The witness decided not to appear & I asked that the matter be granted. The magistrate gave police an adjournment until today 11th. The Police rang the witness & were told she would not appear. Again the magistrate would not hear me & granted a further adjournment.
I have followed due process to the letter
The magistrate should have granted the application
I should not have been gagged & had the full facts been allowed to be presented justice would have taken its natural course."
The real grievances of the applicant can be articulated as:
(1)the police ought not act on the basis of a complaint of violence made by a woman who is his partner if he maintains his innocence;
(2)earlier complaints, if withdrawn, ought reinforce proposition (1);
(3)arrest is not an appropriate response;
(4)a court ought not grant an interim order against the wishes of a respondent unless there has been a full hearing of the merits;
(5)if an interim order is made, it ought be revoked in the absence of evidence from the "real", rather than the "legal" complainant;
(6)the court should not make inquiry to ascertain whether the revocation accords with her interests.
His grievances ignore public policy stated, not by the courts, but by Parliament. The police and the courts give effect to that public policy. Parliament has provided for the making of interim orders to protect vulnerable persons who might be at risk of violence. It is impossible to enact public policy by reference to individual cases. Application of public policy to individual cases can only be made through a hearing on the merits conducted by a court or designated tribunal. It is not effected through the claim of a particular person. If the original allegation is false then, subject to the limitations of any human institution, it will be found wanting. If further implementation of public policy is unnecessary either because of reconciliation or absence of future risk, then the proceedings can be brought to an end. The scheme attempts to balance a social protective policy with individual rights. Mr Smith is entitled to a hearing of his cause on the merits, but he is not entitled to disregard policy enacted by his Parliament. In this case, an arbiter of that balance, the learned magistrate, was required by law to afford Mr Smith a hearing on the merits, while ensuring the continued protection of the "real" complainant. He was required by law to do so, irrespective of whether the original allegation was true or false. He did so in this case. The failure in giving effect to "social" policy is one of allocation of resources. It would have been preferable if the prosecutor had assured himself, through a state institution, that C was content that the proceedings be brought to an end. It would have been preferable if the learned magistrate could have been assured by an independent source that further proceedings were unnecessary. But he had no resource to obtain such independent assurance.
I have written the above in detail because of another misunderstanding. Mr Smith has a misconception, as do many, of the role of this Court. He seeks to raise a grievance against "the system" and has an expectation that he has only to articulate it and the Court will provide an undefined remedy. Courts may provide a specific remedy to a specific error or cause of action. But what remedy is sought?:
· that his partner may not summon police or seek their aid;
· that police, on arrival, conduct a hearing on the merits;
· that police not attend;
· that courts act solely at the behest of a respondent.
In defining the issue in the above rhetorical question, it might become apparent that the tensions between public policy, social good, and individual claims, are indeed many and their resolution complex.
The motion to review is dismissed.
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