Smith v Vivian
[2002] WASCA 227
•24 JULY 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SMITH -v- VIVIAN [2002] WASCA 227
CORAM: HASLUCK J
HEARD: 24 JULY 2002
DELIVERED : 24 JULY 2002
FILE NO/S: SJA 1062 of 2002
MATTER :Justices Act 1902
BETWEEN: GLENN LEON SMITH
Appellant
AND
AMANDA KINGSTON VIVIAN
Respondent
Catchwords:
Restraining Orders Act - Appeal against misconduct restraining order - Whether Magistrate erred as to meaning of intimidatory and offensive conduct - error as to admission of hearsay evidence - Turns on own facts
Legislation:
Evidence Act 1906, s 4
Justices Act 1902, s 69(1), s 74, s 184(1), s 186, s 196(1), s 199
Restraining Orders Act 1997, s 6, s 7, s 8, s 34, s 35
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr M C Owens
Respondent: No appearance
Solicitors:
Appellant: Max Owens & Co
Respondent: No appearance
Case(s) referred to in judgment(s):
I W v City of Perth (1997) 191 CLR 1
Wimbridge v Wimbridge, unreported; SCt of WA; (McKechnie J); Library No 990211; 7 April 1999
Case(s) also cited:
Nil
HASLUCK J: This is an appeal pursuant to provisions of the Justices Act 1902 against a decision of a Magistrate sitting in the Court of Petty Sessions at Bunbury on 8 March 2002. On that occasion the learned Magistrate made a misconduct restraining order against the appellant, Glenn Leon Smith, under s 34 of the Restraining Orders Act 1997. I will come to the terms of that provision in a moment.
The appeal comes before me pursuant to those provisions of the Justices Act which confer a right of appeal to the Supreme Court from the decision of a Magistrate in the Court of Petty Sessions. I refer to s 184(1) of the Justices Act which provides:
"(1)Subject to any other Act -
(a)an appeal lies to the Court, by leave as provided in this Part, from a decision of justices…"
Related provisions allow for an application for leave to appeal to be made to a Judge in Chambers. The application may be made by any person who is aggrieved by the decision. By s 186 of the Justices Act an application for leave to appeal may only be made on a ground or grounds as follows:
"(a)that the justices -
(i)made an error of law or in fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there is some other reason that is sufficient to justify a review of the decision."
The powers of the Court and the manner in which the appeal is to proceed are dealt with in later provisions. I will not traverse those provisions in their entirety but, importantly for the present purposes, one notices that by s 196(1):
"(1)The Court shall determine the appeal -
(a)on the material that was before the justices; and
(b)on such further evidence either oral or by affidavit as the Court thinks fit to receive."
The powers of the Supreme Court on appeal are described in s 199. Upon the hearing of an appeal the Court may dismiss the appeal or set aside, quash or vary the decision below and any order made or thing done as a result of that decision.
Before leaving the provisions of the Justices Act, I note in passing that the structure of the Act presumes that hearings will be conducted in accordance with the conventional practices of the adversarial system of justice and that decisions made by the Justices will be the subject of evidence presented to them at a hearing in a conventional mode.
I note also that by s 69(1) "every witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts in force for the time being relating to giving evidence in courts of justice." Further, as appears in s 74, provision is made for the summoning of witnesses, and that too is consistent with the structure of the Act as I have described it.
Section 4 of the Evidence Act 1906 provides:
"All the provisions of this Act, except where the contrary intention appears, shall apply to every legal proceeding."
I pause at this point to say that the Restraining Orders Act does not appear to contain any provision to the effect that the rules of evidence should be set aside or dispensed with.
Let me come now to the procedural history of the matter before me. The materials in the appeal book include the relevant restraining order summons. It makes provision for a hearing on 8 March 2002 at the Court of Petty Sessions in Bunbury. The respondent to the summons is the appellant in these proceedings, Glenn Smith, and his address is given as 2 Lefroy Street, Bunbury. The person to be protected is described. The applicant, Amanda Kingston Vivian, is described on the form as the parent of the child who is to be protected.
Importantly for the purposes of this appeal, one notices in the section of the form concerning the scope of the order, that what is sought is a misconduct restraining order. The misconduct restraining order is said to be necessary because the respondent is likely to behave in a manner that is intimidating or offensive to the protected person. This reflects the language of s 34 of the Restraining Orders Act.
In order to complete the narrative, I note that after a hearing at which the applicant was sworn in as a witness, orders were made in respect of the protected person to this effect: that the respondent was not to behave in an intimidatory or offensive manner towards the person protected, communicate or attempt to communicate by whatever means with the person protected, enter upon any premises where the person protected lives, or attends education, or be within 100 metres of the nearest external boundary of such premises, or approach within 10 metres of the person protected. The order was for a duration of 2 years.
A transcript of what occurred before the learned Magistrate on the hearing date of 8 March 2002 is before me. It is important to look at the detail of what occurred and I am indebted to counsel for the appellant for having taken me carefully through the transcript. However, before turning to the transcript, it will be convenient to look more closely at the structure of the Restraining Orders Act and the grounds for granting a misconduct restraining order.
It is apparent from s 6, s 7 and s 8 of the Act that a parent can make an application on behalf of a child, as has happened in the present case. The applicant stands in for the child. Indeed, by s 7 a reference to the applicant is deemed to be a reference to the child. It follows that if a misconduct restraining order is applied for, the question before the Court is whether protection is required in respect of the child. The procedural provisions direct attention to conduct concerning the person to be protected and on whose behalf the application was made.
This brings me to s 34 of the Act. That appears in Pt 3, dealing with the misconduct restraining orders. I pause to note that Pt 1 of the Act contains procedural provisions, Pt 2 deals with violence restraining orders, Pt 3 deals with misconduct restraining orders. The misconduct restraining order appears to be lower in the hierarchy than the violence restraining order.
Section 34 of the Act is in these terms:
"A court may make a misconduct restraining order if it is satisfied that:
(a)unless restrained, the respondent is likely to -
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant and that would, in fact, intimidate or offend the applicant;
(ii)cause damage to property owned by, or in the possession of, the applicant; or
(iii)behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b)granting a misconduct restraining order is appropriate in the circumstances."
Section 35 deals with matters to be considered by the Court. I will not go to the entirety of those matters but the provision commences by saying that when considering whether to make a misconduct restraining order for reasons referred to in s 34(a)(i) or s 34(a)(ii) and the terms of the order, a court is to have regard to the need to ensure that the applicant is protected from intimidatory or offensive behaviour. The welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order is also to be considered.
It emerges, then, that in the circumstances of this case, having regard to the complaint that was originally lodged, the focus of the Court's attention on 8 March 2002 was upon s 34(a)(i). The question was whether, unless restrained, the respondent to that complaint, Mr Smith (being the appellant in these proceedings) was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to the person to be protected and whether his conduct would in fact intimidate or offend her. The Court had to be satisfied also that granting an order was appropriate in the circumstances.
I understand from the use of the word "reasonably," that it is not sufficient for the Court simply to hear evidence about apprehensions or to speculate about matters that might occur. The use of the word "reasonably" suggests to me that an objective approach must be taken. The Court must be guided by evidence sufficient to sustain a conclusion that unless restrained the respondent is likely to behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant. As I have already noted in the context of this case, by s 8, a reference to the applicant is deemed to be a reference to the teenage child in question. There was a need for evidence bearing upon the principal issues.
This view of the matter, and the general observations I have made about evidence, are underpinned by a decision of his Honour McKechnie J in the matter of Wimbridge v Wimbridge, unreported; SCt of WA; (McKechnie J); Library No 990211; 7 April 1999. That was a case concerning an application for a violence restraining order. Nonetheless, the observations made by his Honour on the subject of evidence are applicable to the case before me.
One finds at page 7 of that report an observation made by his Honour that the evidence before a Magistrate on hearings of this nature must be according to the rules of evidence. He went on to say, in the context of that case:
"The alleged conversation with the sister by the appellant may have been admissible had the sister been brought to Court and given evidence of it. In the form in which it was adduced it was inadmissible and should have played no further part in the case."
That conclusion had a bearing upon the outcome of the appeal. His Honour noted further at page 9:
"In deciding whether grounds are reasonable the Court can only have regard to admissible evidence. This is self-evident. Inadmissible material does not form part of the evidence and must be treated as if it were never said."
This line of reasoning is consistent with and underpins observations I made a moment ago after looking at the provisions of the Justices Act, the Evidence Act and the Restraining Orders Act itself. These statutes require that a hearing before the Magistrate will be conducted in accordance with the rules of evidence and the usual conventions of the adversarial system.
It is against this background that I come now to the transcript of what occurred before the learned Magistrate at the Court of Petty Sessions on 8 March 2002. Counsel has taken me to the critical passages and there is therefore no need for me to look at the entirety of the transcript in detail. The hearing was short but it is desirable, having regard to the grounds of the appeal in this matter, that I touch upon one or two matters of particular significance.
The respondent, Mr Smith, who is the appellant in the appeal before me, was not before the Court, although it seems that he was served with the relevant papers and given notice of the hearing. It appears from certain references in the transcript that the lodging of the application for an order was something that had been suggested to the applicant, Mrs Vivian, by the police. She herself was unrepresented before the learned Magistrate and it is clear from the nature of the dialogue that she was not familiar with the nature of the relief she was applying for or with the provisions of the Restraining Orders Act.
Quite properly, his Worship decided to proceed in the absence of the respondent, bearing in mind that the relevant documents had been served. Amanda Kingston Vivian was then sworn in and gave some evidence. Inevitably, the evidence was brought forward in the course of a dialogue with the learned Magistrate as he endeavoured to draw out facts and matters that might have a bearing upon the subject matter of the complaint before him. He established that Mrs Vivian was seeking a misconduct restraining order and that the ground was that the respondent was likely to behave in an intimidating or offensive manner towards her teenage daughter.
It is apparent from the transcript that essentially the matter of concern to Mrs Vivian was that her teenage daughter had become attracted to the appellant, Mr Smith. The mother was fearful that there was some intimacy between them. It was of concern to her that her daughter was young and might suffer prejudice if the relationship continued. It is significant, when one views the transcript as a whole, that she does not appear to be complaining that there has been some atmosphere of intimidation or some conduct in the nature of threats or violence as between Smith and her daughter; it is the disparity in the ages which is of concern to her.
This emerges from the exchanges between Mrs Vivian and the bench, but many of these exchanges had the effect of introducing hearsay evidence. Counsel has touched upon them at some length. One finds at page 3, for example, that Mrs Vivian says her daughter "has admitted to me, and him, that there has been sexual activity." The mother is providing a summary account in the form of hearsay of various out of court statements that have been made that would otherwise not be admissible in evidence unless they fell within an exception to the rules concerning hearsay.
There is a passage in the transcript in which Mrs Vivian says:
"Twice I've been into the police.
They found there's insufficient evidence to ‑‑‑?‑‑‑ They've been to see him. I have to catch them in the act, apparently, before I can do anything about it, because they both deny it to the police.
Yes? ‑‑‑ She's denied it to protect him. She told me if I went to the police she would do that."
There are other out of court statements made by the daughter which were received into evidence without objection. One finds at page 4 evidence to this effect:
"I wasn't home, 3 weeks ago, on a Saturday night, and he's come out and picked her up. I've come home at 11 o'clock and she's gone."
The witness before the Court is purporting to give an account of something that had happened in her absence. It appears that she is drawing together various out of court statements and providing a summation as to what she understood occurred. She goes on to say:
"And the school is doing everything they can do to keep him, you know ‑‑‑ if he's seen there ‑‑‑ any time she is late or absent, they're ringing me."
The sentence is unfinished, but one understands that the school is taking steps to keep the parties apart. Mrs Vivian is reporting to the Court what she has heard from others.
In addition to hearsay issue there is another matter which has become important for the purposes of this appeal. As the learned Magistrate commenced to ask some questions, in order to understand the nature of the case being presented to him, he referred to the fact that the term "intimidatory" means "to act in a way that's threatening towards her." Mrs Vivian responded:
"But, he's not threatening her. This is where it seems to be a problem because he's not ‑‑‑ he tells me he's in love with her and he can't help it."
This underlines the position I described a moment ago, namely, that the complaint goes to the disparity of ages. Mrs Vivian describes the appellant as a predator, but there is a lack of particularity. The upshot of the various exchanges was not to bring before the court any significant or precise evidence of conduct which could be described as intimidating or offensive, being the criteria posed by the relevant provision of the Act.
It was against this background that the learned Magistrate proceeded to deal with the matter. Eventually, as I have already indicated, he made a misconduct restraining order subject to certain conditions. However, it is clear from the transcript that he had reservations about whether the powers allowed to him by the Act extended to the case before him and as to whether the Act was designed to cover this sort of situation.
The learned Magistrate referred to endeavouring to provide relief under the guise of a misconduct order. He described the relief being provided as "novel" and as possibly stretching the boundaries of a misconduct order. He seems to have recognised that there could be a challenge to the validity of the order.
In making this analysis of what was said, it should not be thought that I am chastising the learned Magistrate. In the course of dealing with the many matters that come before them, Magistrates must inevitably endeavour to exercise some constructive commonsense, and to bring some human understanding to the concerns and apprehensions of people who have no close association with the law.
However, such an approach is always subject to another and equally important consideration: the rights and liberties of the subject must be kept in mind. It is important that no person within the legal system, and certainly no judicial officer, exceeds the boundaries of the powers allowed to him. An appeal court must take care to ensure that there is a proper supervision of restraining orders.
In summary then, to this point, it emerges that on 8 March 2002 the learned Magistrate himself had reservations as to whether he had power to make orders of the kind proposed. It is apparent on a first look at the transcript that there must be some doubt as to whether there was sufficient admissible evidence before the Court bearing upon the criteria enunciated in the Act. One notes also that the reasoning underlying the decision to grant the order was comparatively brief. His Worship said:
"…I'm satisfied on all of that evidence that it is appropriate to make a misconduct order, and I'll make it in the following terms: that the respondent, that is to say, Glenn Smith, is not to behave in an intimidatory or offensive manner…"
It is clear from this passage that the learned Magistrate purported to be making the decision on the basis of evidence, although at that stage he had not heard very much evidence from the one witness before him. It was then, having made the order (or having foreshadowed the making of the order) that the dialogue took place which suggested that the appellant was not in fact threatening the person to be protected. Some further discussion occurred. The learned Magistrate went on to say eventually that he proposed to make the order, and then did so in the terms that I have previously described.
It is clear that, although the Magistrate purported to be making the order upon the basis of evidence directed to the criteria of offensive and intimidatory conduct, the reasoning is so brief that it is difficult to discern whether he kept in mind an important element of the relevant provision. The word "reasonably" imports an objective standard. The Magistrate must be satisfied that unless restrained the respondent is likely to behave in a manner that could be reasonably expected to be intimidating or offensive.
Let me now turn to subsequent events so that the significance of what took place at the hearing is fully before me. In that respect I draw upon the affidavit of Glenn Leon Smith sworn 23 April 2002. Mr Smith says that he is the applicant, that is to say, the applicant for leave to appeal, and says further:
"2.A few days prior to the 8th March 2002 I was served with a restraining order summons taken out by Amanda Kingston Vivian on behalf of [the person to be protected].
3.I did not attend on the 8th March as I did not want to cause any conflict. I did not take any advice on the matter, let alone any legal advice on the matter.
4.I was then served with a misconduct restraining order dated the 8th March. To the best of my knowledge I was served with the order within a few days after the 8th March."
Copies of the summons and the orders are then exhibited. He goes on to say:
"6.In the early hours of the morning of the 13th April 2002 I was charged by the Bunbury police with a breach of the misconduct restraining order."
A copy of that complaint is exhibited. He continues:
"8.I do not wish to be seen as making any admissions in regards to the alleged offence, however I can say that on the morning of the 13th April the investigating officer, Constable Lyons of the Bunbury Police, told me I was not going to be charged with any offence. He left my premises. He then re‑attended at my premises shortly after on the same morning and told me that his Sergeant had over ruled him and I had to be charged."
It seems that the person to be protected came to the appellant's residence and engaged in conversation with him. That arguably amounted to an infringement of the restraining order. As a consequence of the alleged infringement a charge has been laid and it seems, upon what has been put before me in the course of this appeal, that the relevant charge will come before the Court shortly. It emerges, then, that the question of whether the order made under the Restraining Orders Act was properly made, and whether it should be quashed or not, being the relief sought in this appeal, is a matter which has a real and practical significance so far as the appellant is concerned.
It was against this background that an application for leave to appeal was brought before the Supreme Court by the appellant. An order granting leave was made by Miller J on 30 April 2002. I understand that as a consequence of some discussion at the hearing of the application for leave there was some adjustment to the grounds of appeal. The grounds of appeal are now expressed in this way:
"The learned Magistrate:
(a)erred in law and fact in making the Misconduct Restraining Order against the Applicant when there were no grounds either in law or fact under section 34 of the Restraining Orders Act for making the said order;
(b)erred in law in allowing the introduction of hearsay evidence;
(c)erred in law in making the said order while effectively acknowledging while making the order that there was no proper basis for it, and that as a matter of law it was not appropriate."
The matter was listed for hearing before the Supreme Court circuit Judge on Monday, 29 July and papers were served accordingly. I have an affidavit of service before me of Judith Diane Van Heerwaarden sworn 29 May 2002 and Debra Gay Robinson sworn 29 May 2002. These affidavits of service establish that the order made by Miller J and the related documents were served upon Mrs Vivian as the respondent to the appeal.
Mrs Vivian wrote a letter to Mr Owens, as the solicitor for the appellant. The letter, dated 18 July 2002, was in these terms:
"I will not be defending the appeal, owing to the fact that I am unable to afford legal representation. Also emotionally I am no longer able to fight this. It seems that there is no legal way I am able to prevent Glen and [the person to be protected] from seeing each other, so I am going to drop the matter. It has cost me my marriage and my daughter who is no longer living at home any‑more and refuses to come home. I will not be appearing in court the stress is just too much for me to handle.
Regards,
Amanda Vivian."
In the event, arrangements were made for the appeal to be heard on Wednesday, 24 July 2002, provided the Court could be assured that the respondent had suitable and sufficient notice of the revised hearing date or, otherwise, that no injustice would be done to the respondent.
With that thought in mind Mr Owens contacted the respondent again, whereupon she reaffirmed that she did not wish to be involved in the appeal. The letter I have just described was signed again. It is my belief and firm understanding that Mrs Vivian does not wish to be present and simply wishes to abide the ruling of the Court. I am satisfied, as I am presently informed, that there would be no injustice to her in my proceeding to deal with this matter in her absence, having regard to the view that she has expressed.
Counsel for the appellant, Mr Owens, has prepared a written outline of submissions in support of the grounds of appeal as I have described them. They are before me. He has also spoken to those submissions in the course of an oral address. I will not traverse the full range of matters contained in both the written and verbal submissions.
However, essentially, having regard to the grounds of appeal and the contents of the transcript, he submitted that various hearsay statements were placed before the Court which were inadmissible. On his submission there is nothing in the statute or related statutes which would justify the reception of inadmissible hearsay evidence of that kind. He submits that it would be an unsatisfactory basis for the Court to make orders of the kind that were made. He points out, further, upon a closer analysis of what was said as reflected in the transcript, that in any event there was insufficient evidence before the Court. The evidence did not permit a reasonable conclusion to be arrived at, that the appellant was guilty of intimidatory or offensive conduct.
Counsel emphasised that the applicant for relief herself seemed to agree that the circumstances did not amount to threatening conduct. He referred also to the meaning of "intimidatory or offensive conduct". The dictionary meaning of "intimidate," is expressed in these terms: "To make timid or frightened, as by threats; scare; to discourage, restrain or silence illegally or unscrupulously, as by threats or blackmail." He referred to the dictionary definition of "offensive," that is to say: "Conduct which is unpleasant or disgusting as to the senses; causing anger or annoyance; insulting for the purpose of attack rather than defence; proceeded by an attitude or position of aggression; an assault, attack or military initiative."
Let me now return to the grounds of appeal, keeping in mind the relevant provision of the Act.
The first ground of appeal is that the learned Magistrate erred in law and fact in making the misconduct restraining order against the applicant when there were no grounds either in law or fact under s 34 of the Restraining Orders Act for making the said order.
I consider that the appeal should be allowed on this ground. I am persuaded by the submissions put to me by counsel for the appellant that the admissible evidence before the Court was scant and insufficient. I uphold the contention that the statements I have identified and which to some extent at least were relied upon by the Court below, were hearsay and therefore inadmissible. Notwithstanding the absence of objection, I consider that the Magistrate was in error in allowing hearsay evidence of that kind to constitute the evidentiary foundation from which he proceeded.
There was no significant evidence before the Court to justify an order of the kind made. Further, as I have indicated, it is not apparent from the nature of the learned Magistrate's reasoning that he gave sufficient weight to the concept of behaving in a manner that could reasonably be expected to be intimidating or offensive. It rather seems, as best as one can discern it, that he gave inordinate weight to the subjective apprehensions of the witness before him.
I therefore consider that the ground set out in subparagraph (a) of the grounds of appeal has been made out, namely, that there were no grounds either in law or in fact under s 34 of the Restraining Orders Act for making the said order.
As to subparagraph (b), the contention is that the learned Magistrate erred in allowing the introduction of hearsay evidence. It follows from what I said a moment ago, and from my earlier analysis of the transcript, that I do consider, notwithstanding the absence of objection, that the Magistrate was in error in allowing into evidence, and apparently acting upon, various hearsay statements of the kind identified by counsel and described by me in earlier discussion.
As to the third ground of appeal, that the learned Magistrate erred in law in making the said order while effectively acknowledging that there was no proper basis for it and that as a matter of law it was not appropriate, I am not persuaded that the appeal should be allowed on that ground. There is a line to be drawn between a clear acknowledgment by a judicial officer that he or she simply doesn't have the power to do what is proposed to be done, and the articulation of doubt concerning the limits of a comparatively new rule of law. There are occasions on which a court expresses some hesitation in a new area of the law as to whether the powers extend as far as might be thought necessary. I am of the view that the present case should be characterised as a case of the second kind, where the learned Magistrate expressed some hesitation as to whether there was a basis for proceeding as he did. I am not persuaded that this ground of appeal has been made out.
I have already observed that the learned Magistrate, in a conscientious way, was obviously trying to make constructive use of the powers allowed to him and to bring about a sensible result. I am conscious that the Restraining Orders Act should be regarded as remedial legislation, allowing courts to give expeditious relief in ambiguous and complex domestic situations. Nonetheless, the powers allowed to the Court must also be exercised in the knowledge that the rights of the citizen are not lightly to be interfered with and should only to be taken away by express language.
If a restraining order is made, whether it goes to allegedly violent conduct or simply to conduct characterised as misconduct, such an order imposes a restraint upon the respondent. It seems to me that this brings into play a consideration of the rights of the citizen. Even in the case of remedial legislation, the exact boundaries of the powers allowed to the Court must be discerned by a close reading of the legislation, and it should not be assumed too readily that new powers are necessarily be construed in a broad manner. See I W v City of Perth (1997) 191 CLR 1 at 15.
It might be argued that the grant of a misconduct restraining order pursuant to s 34 is a remedy provided for by a broad power. However, in my view, in addressing the concept of intimidation or offensive conduct, proper weight should be given to the word "reasonably" as importing the need for an objective assessment of the evidence.
These matters may on occasion be passed over, but in this case the appellant has brought the issues I have mentioned directly under the notice of the Court. The appellant has been obliged to make the application before me because he is now facing a charge arising out of an alleged breach of the misconduct restraining order. This makes it necessary to determine whether the foundation of the original order was properly in place. It follows from the ruling I have made, that in my view the learned Magistrate erred in his application of the statutory provision in question. The order made on 8 March 2002 will be quashed.
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