Stock v Bennett
[2000] WASCA 268
•21 SEPTEMBER 2000
STOCK -v- BENNETT [2000] WASCA 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 268 | |
| Case No: | SJA:1097/2000 | 8 SEPTEMBER 2000 | |
| Coram: | MILLER J | 21/09/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | MICHAEL STOCK IAN ALBERT BENNETT |
Catchwords: | Criminal law Appeal Convictions for breach of restraining order Whether findings of Magistrate should be set aside Turns on own facts |
Legislation: | Nil |
Case References: | Grove v Gage [2000] WASCA 70 Lurssen v Williams, unreported; SCt of WA; Library No 950015; 20 January 1995 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
IAN ALBERT BENNETT
Respondent
Catchwords:
Criminal law - Appeal - Convictions for breach of restraining order - Whether findings of Magistrate should be set aside - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : In person
Respondent : Mr R Bathurst
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Grove v Gage [2000] WASCA 70
Lurssen v Williams, unreported; SCt of WA; Library No 950015; 20 January 1995
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: The appellant was convicted by Mr T McIntyre SM in the Court of Petty Sessions at Armadale on 1 March 2000 on two charges of breaching a violence restraining order. One charge alleged that the appellant had attended at a residence at 240 Steich Avenue, Armadale on 2 December 1999 in breach of the violence restraining order and the other alleged that he had attended again at that address on 18 December 1999 in further breach of the order.
2 In relation to the first charge the former de facto wife of the appellant, one Marie Baker, testified that on 2 December 1999 the appellant had attended at her place of residence in order to serve a court order. According to her evidence had pushed paperwork through the flyscreen door which was in breach of the restraining order which prevented him from entering those premises. The appellant testified in his defence that he had never attended as alleged and put to Ms Baker that her testimony was a complete fabrication. In essence the appellant was contesting the day upon which he had been at the residence, not that he had not been there at all.
3 The learned Magistrate found as a fact that Ms Baker was a truthful witness and that the appellant had attended at her place of residence on the day in question to serve a document in breach of the violence restraining order.
4 In reasons for decision the learned Magistrate described both the appellant and his former de facto wife as "totally lacking in any form of maturity or responsibility" and "prepared to take just about every opportunity that is available to try and score some points one against the other. They are like two kids squabbling over a toy". His Worship went on to say that although Ms Baker appeared to be "just a scatterbrained nincompoop who blunders her way along trying to do the best she can" she was not a perjurer and her testimony was accurate and truthful.
5 In relation to the second charge it was the case that the appellant had arranged to pick up his two children from Ms Baker on 18 December 1999 for weekend access under the terms of an order made under the Family Court Act1997. The children were to be handed over outside the main entrance of the Armadale Police Station unless otherwise agreed between the parties. It seems that Ms Baker, in breach of the court order, would not allow the appellant to pick up the children at all. He thereupon went to her residence and it was his contention that an agreement had been made with Ms Baker that he could pick up the children from the
(Page 4)
- house or, alternatively, there was a general agreement that they could be picked up from her house.
6 It was the case that if Ms Baker had agreed to the appellant coming to the house to pick up the children the appellant would not have been in breach of the violence restraining order. That was because the operation of the restraining order was expressed to be subject to an order of the Family Court of Australia. Ms Baker, however, denied that there was any agreement and the learned Magistrate, after hearing the evidence, found as a fact that there was no such agreement. Again, he believed Ms Baker's testimony. The result was that the learned Magistrate fined the appellant $300 on each charge with costs of $92.20 on the first and $38 on the second.
7 The appellant was given leave by Wallwork J on 30 June 2000 to appeal from the decision of the learned Magistrate on two grounds:
"(i) The convictions were not sustainable at law in view of the circumstances of the relevant alleged offences.
(ii) The conviction for the alleged breach of restraining order was contrary to the arrangements made with Ms Maree Suzette BAKER."
- At the hearing of the appeal the appellant appeared in person and endeavoured to raise a wide range of matters, many of which were irrelevant to the decision of the learned Magistrate. I express sympathy with the appellant for the position in which he has found himself, as it is apparent that the question of his access to his children has become almost insoluble. However, I pointed out to the appellant that it is the responsibility of the Family Court, not this Court, to resolve the problems that have arisen. I stressed to the appellant that my function in the appeal proceedings was simply to determine whether or not grounds could be made out to set aside the convictions recorded by the learned Magistrate. In that regard I accept the written submissions of counsel for the respondent that the appeal being by way of re-hearing, I was placed in as good a position as the learned Magistrate to decide on the proper inferences to be drawn from undisputed facts which were established before him: Vrisakis v Australian Securities Commission (1993) 9 WAR 395. However, as was rightly pointed out in the respondent's submissions, there was a clash of critical oral testimony between Ms Baker and the appellant in relation to the alleged breaches of the restraining order and the learned Magistrate held a significant advantage over this Court in
(Page 5)
- assessing the clash of "oath against oath": Grove v Gage [2000] WASCA 70 at [18]. I accept, too, that the primary facts found by the learned Magistrate are not ordinarily to be interfered with providing there is evidence to support the findings made and provided the appellant fails to establish that the Magistrate has not taken proper advantage of seeing and hearing the witnesses: Vrisakis v Australian Securities Commission (supra) at 448. I was unable to find evidence of any error demonstrating a miscarriage of justice and there was nothing in the materials put before me to suggest that the proceedings below were fundamentally flawed in any way: Lurssen v Williams, unreported; SCt of WA; Library No 950015; 20 January 1995.
8 In all the circumstances of the case the appellant failed to make out the grounds of appeal and the appeal was therefore dismissed. I made no order for costs.
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