Sturt v Ball
[2013] WASC 343
•9 SEPTEMBER 2013
STURT -v- BALL [2013] WASC 343
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 343 | |
| 09/09/2013 | |||
| Case No: | SJA:1053/2013 | 6 SEPTEMBER 2013 | |
| Coram: | BEECH J | 6/09/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld | ||
| B | |||
| PDF Version |
| Parties: | TERRY STURT DAVID BALL |
Catchwords: | Criminal law Charge of breaching restraining order by approaching protected person Protected person walked up to appellant Whether appellant approached protected person Turns on own facts |
Legislation: | Restraining Orders Act 1997 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DAVID BALL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE C D ROBERTS
File No : DY 129 of 2012
Catchwords:
Criminal law - Charge of breaching restraining order by approaching protected person - Protected person walked up to appellant - Whether appellant approached protected person - Turns on own facts
Legislation:
Restraining Orders Act 1997 (WA)
Result:
Appeal upheld
Category: B
Representation:
Counsel:
Appellant : Mr D Brunello
Respondent : Mr B D Nelson
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Nil
- BEECH J:
Introduction
1 The appellant appeals against his conviction for a breach of a violence restraining order. The charge alleged that, having been served with a violence restraining order, he breached that order by approaching within 20 m of the protected person under that restraining order. The evidence was that the protected person walked up to the appellant.
2 At the hearing of the appeal, I ordered that the appeal be upheld and the conviction quashed. I said I would provide reasons later. These are my reasons. In essence, the magistrate correctly found that the appellant did not approach within 20 m of the protected person and convicted the appellant on a different basis, when it was not open to do so.
The charge
3 The charge alleged that on 2 March 2012 at Derby the appellant, 'having been personally served with [the specified violence restraining order], breached that order by approaching within 20 metres of [the protected person]'.
The evidence
4 A certified copy of the violence restraining order was tendered. It contains two conditions, that the appellant not:
(a) enter upon any premises where the person protected lives or works, or be within 20 m of the nearest external boundary of such premises; or
(b) approach within 20 m of the person protected.
5 At the commencement of the case, defence counsel sought and obtained particulars. Particulars of the charge were given in terms of the charge, namely that the appellant breached the violence restraining order by approaching within 20 m of the protected person.1
6 The prosecution relied on the evidence of three witnesses, none of whom was cross-examined. The protected person gave evidence that one evening she was walking when she saw the appellant. She said that what then happened was:
I walked up to him and he told me 'where are you going?' and I said 'I'm going home'. So the police vehicle pulled over and he turned around and gave me his wallet and phone and from there I just went back home.2
7 She said that at the time she was 'really drunk'.3
8 Constable Ball gave evidence that he saw the appellant and the protected person 'walking together for about 3 seconds'. They walked side by side over only a couple of metres.4
9 The statement of the other constable was read by consent. It does not add to the evidence of Constable Ball.5
The parties' submissions before the magistrate
10 The prosecutor submitted that the evidence demonstrated a clear breach of the violence restraining order in that they were seen walking together, side by side.6
11 Counsel for the appellant referred to the terms of the violence restraining order and the direct evidence of the protected person in submitting that the evidence failed to prove that the accused 'approached' the protected person as alleged.7
The magistrate's reasons
12 After summarising the evidence of the witnesses, the learned magistrate said as follows:
The sole question for my determination is whether pursuant to the District Court VRO whether the accused has approached within 20 metres of the protected person.
It's clear on the evidence to me that he didn't approach Roseanne Green, it was the other way around, she approached him. However, in my view, once a person has approached another and it becomes apparent that they are within the 20-metre prohibition area in terms of the restraining order, it is incumbent upon the person who has the restraining order imposed upon them to immediately then walk away from that person.
The accused chose not to do so. He remained with her, and I note that he gave the phone and wallet to her. In those circumstances, there is a breach of the restraining order in my view. The case has been proved beyond reasonable doubt. Of course, the particular facts of this matter do go a substantial way in mitigation, the facts of the case, but it does not provide a defence or more correctly, the prosecution has negatived any defence open to the accused to have to prove their case beyond reasonable doubt.8
Ground of appeal
13 The notice of appeal contains two grounds. The appellant abandoned ground 1.9 The sole ground of appeal is that, having regard to the evidence, the verdict is unreasonable and cannot be supported.
Disposition of the matter
14 In the context of the violence restraining order, and in the context of the charge, the word 'approach' bears its ordinary meaning. 'Approach' is commonly defined to mean 'to come nearer or near to (someone or something) in distance or time'.10 The respondent accepts that this is the meaning of 'approach' in this context.11
15 The evidence established that the accused did not approach the protected person. Rather, the protected person approached the accused.
16 In my respectful view, the magistrate correctly characterised the sole question for his determination as whether the accused had approached within 20 m of the protected person and correctly answered that question in the negative. In my view, the charge should therefore have been dismissed.
17 However, the magistrate went on to say that it was incumbent upon the person upon whom the restraining order is imposed to then immediately walk away from the protected person. In my respectful view, for two overlapping reasons, it was not open to the magistrate to reason in this way. First, that was not the charge which the appellant faced. The charge alleged that he had approached the protected person. Secondly, I do not accept that the violence restraining order can be construed as, in effect, containing additional implied obligations beyond those expressly stated in it. It would be open under s 13(2) of the Restraining Orders Act 1997 (WA) to impose a restraint against approaching a person, and a restraint against remaining within a particular distance of a person. However, I am not persuaded that the latter should be implied in the violence restraining order.
18 Breach of a restraining order is an offence rendering a person liable to up to 2 years imprisonment under s 61(1). Consequently, a restraining order, like an injunction, must clearly identify the conduct that is restrained. In that framework, a court will be, to say the least, cautious to imply additional restraints into the terms of a restraint order.
19 The respondent submitted that the magistrate's reasons should be understood as referring to 'approach' in two different senses. First, the magistrate said the appellant did not approach the protected person, she approached him. On the respondent's submission, the second sense of 'approach' arises from his Honour's finding that, by remaining with her, the appellant breached the restraining order. The respondent submits that that involves an implicit conclusion that, by remaining with the protected person, the appellant 'approached' her.
20 I reject that submission. I do not think the magistrate's reasons can be read this way. In any event, if that was his Honour's reasoning, it was, with respect, wrong, for the reasons that follow.
21 The respondent adopts the ordinary meaning of approach - to bring oneself nearer to someone or something. He submits that a person who fails to take reasonable steps to remove himself from the protected person has 'approached' that person because his failure to remove himself 'had the continuing effect of bringing him nearer and closer to the protected person'.12 This was explained in oral argument to mean that by remaining where he was, the appellant brought himself nearer and closer to the protected person than he would have been had he removed himself. To my mind, that is a an unnatural and contrived sense of bringing oneself closer to another. It involves a strained and artificial construction of the language of the order, that the appellant not 'approach' the protected person. I reject that construction.
22 The respondent points out, correctly, that by s 12(1) of the Restraining Orders Act,when a court is considering whether to make a violence restraining order, and its terms, a court is to give primary consideration to, among other things, the need to ensure that the person seeking to be protected is protected from acts of abuse. The respondent submits that if an order preventing a person from 'approaching within' a specified distance of another is construed not to include a requirement that the person not remain within the specified distance if the protected person has walked up to them, it is questionable whether the order ensures adequate protection from acts of abuse.13 In my view, that submission does not sustain the magistrate's and respondent's construction of the violence restraining order made in this case. Section 12 is directed to the terms of a violence restraining order to be made by a court, rather than the construction of an order once it has been made. To the extent that the need to ensure that the relevant person is protected from acts of abuse requires the order to prevent the person bound by the order from remaining within a specified distance of the protected person, an order restraining the person bound by the order from remaining within a particular distance of the person could and should have been made. That consideration does not justify a construction of the language of the order that is, as I have explained, so strained.
23 Further, the respondent submits that if 'approach' is construed to apply only when the person bound by the order physically brings himself closer to the protected person, the following would also not give rise to a breach:
(a) a protected person walks within the prohibited distance of the person bound by the order - who having observed the protected person - is otherwise hiding, or intentionally avoiding being seen by the protected person; or
(b) a person bound by the order intentionally places themselves, stationary, in sites and localities they know the protected person regularly frequents (but which are not otherwise the subject of a separate protective order).14
24 That submission does not sustain the respondent's construction of 'approach'. As I have said, it is open to a court making a restraining order to make other orders apart from an order not to approach. Another available order is not to remain within a given distance of the protected person.
25 The respondent rightly conceded that if I found that the appellant had not approached the protected person, an extension of time should be granted, and the appeal upheld.
Conclusion
26 For these reasons, I ordered:
(1) extension of time to appeal be granted;
(2) leave to appeal be granted;
(3) the appeal be allowed;
(4) the conviction be set aside; and
(5) judgment of acquittal be entered.
Postscript: the appellant's time in custody
27 On my analysis, this prosecution was always doomed to fail, and lacked any reasonable foundation. Nevertheless, the institution of the prosecution, when the appellant was on bail for a similar offence, had the practical consequence of putting the appellant into custody pending his trial.
28 The appellant spent almost three and a half months in custody awaiting his trial on this offence. That arose by the operation of cl 3A of pt C of sch 1 of the Bail Act 1982 (WA) and by the inclusion of an offence under s 61(1) of the Restraining Orders Act within the definition of serious offence in sch 2 of the Bail Act. The appellant was on bail for another offence against s 61(1) when he was alleged to have committed the offence the subject of this appeal. That meant that bail must be refused unless the appellant demonstrated that there were exceptional circumstances why he should not be kept in custody.
29 That combination of events, circumstances and the legislative scheme has meant that the appellant has suffered grave injustice at the hands of the legal system.
1 ts 16/06/2012, page 3.
2 ts 16/06/2012, page 4.
3 ts 16/06/2012, pages 4 - 5.
4 ts 16/06/2012, pages 5 - 6.
5 ts 16/06/2012, pages 6 - 7.
6 ts 16/06/2012, pages 7 - 8.
7 ts 16/06/2012, page 8.
8 ts 16/06/2012, page 9.
9 Appellant's Submissions [28].
10Macquarie English Dictionary (5th ed, 2009).
11 Respondent's Submissions [23].
12 Respondent's Submissions [33].
13 Respondent's Submissions [26].
14 Respondent's Submissions [38].
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