STURT -v- BALL [2013] WASC 343

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 343
Published:	09/09/2013
Case No:	SJA:1053/2013	Heard:	6 SEPTEMBER 2013
Coram:	BEECH J	Delivered:	6/09/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal upheld
Category:	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

CITATION : STURT -v- BALL [2013] WASC 343 CORAM : BEECH J HEARD : 6 SEPTEMBER 2013 DELIVERED : 6 SEPTEMBER 2013 PUBLISHED : 9 SEPTEMBER 2013 FILE NO/S : SJA 1053 of 2013 BETWEEN : TERRY STURT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sturt v Ball

Details

AGLC: STURT -v- BALL [2013] WASC 343
Case: [2013] WASC 343
Decision Date: 9 SEPTEMBER 2013

CaseChat Overview and Summary

In the case of Sturt v Ball, the appellant was convicted of breaching a restraining order by approaching the protected person. The protected person in question walked up to the appellant, and it was this encounter that formed the basis of the charge. The court was tasked with determining whether the appellant indeed approached the protected person, a question that hinged on the unique facts of the case. The appeal was heard by the court, which examined the evidence and arguments presented by both parties.

The central legal issue before the court was whether the appellant had contravened the restraining order by approaching the protected person. This required the court to closely scrutinise the evidence and determine the precise sequence of events that took place. The court had to consider the definition of "approaching" within the context of the restraining order, as well as the credibility of the witnesses and the reliability of the evidence presented. It was essential for the court to establish the facts of the case with a high degree of certainty, as the outcome hinged on the interpretation of these facts.

The court, after careful consideration, found that the evidence did not support the conclusion that the appellant had approached the protected person. The protected person had, in fact, walked up to the appellant, which was a reversal of the typical dynamic expected under the restraining order. The court held that the appellant's conviction was not supported by the evidence and that the appeal should be upheld. Consequently, the appeal was allowed, and the conviction was quashed.

Orders

Orders of the court

Appeal upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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