Szumylo v Mondon No. Scciv-01-413

[2001] SASC 128

SZUMYLO v MONDO
[2001] SASC 128

Magistrates Appeal (Criminal)

1. DOYLE CJ (ex tempore)                 This is an appeal against a decision of a Magistrate, refusing to confirm a restraining order that had been granted in the absence of the defendant.

2. The appellant, Mrs Szumylo, sought a restraining order from the Magistrates Court against the respondent, Mr Mondon. Mrs Szumylo and Mr Mondon are next-door neighbours. Mr Mondon lives in a South Australian Housing Trust property with his wife and children. His property adjoins the property of Mrs Szumylo. She has three children.

3. The complaint of Mrs Szumylo is framed in the terms ‘There is a reasonable apprehension that Warren Mondon of 46 Kitchener Street may, unless restrained, behave in an intimidating or offensive manner’. The formal part of the complaint is followed by a number of specific complaints about Mr Mondon’s conduct.

4. Mrs Szumylo states in the complaint that she believed that Mr Mondon would engage in harassment, intimidation and defamation of her and her children and visitors. She said she feared that he would hang around in close proximity to the boundary fence. She feared that he would harm her, her children, their dog and pets, and also any visiting persons. She complained also that he would bang on the fence in order to provoke her dog, or members of her family, to come out and confront him. She also said that harm was likely to be caused by the use of his electric, or gas, or air tool, to project articles such as nails, screws and ball bearings.

5. Mrs Szumylo gave evidence about these matters at the initial hearing, in the absence of the defendant, before a Magistrate on 26 September 2000. She made other allegations about the behaviour of Mr Mondon. An order was made for a restraining order, and a summons was issued pursuant to s 99 of the Summary Procedure Act. The summons called on Mr Mondon to show cause why the order should not be confirmed. Mr Mondon appeared at the hearing on 23 January 2001. On that occasion both parties gave evidence about the matters in issue between them.

6. This appeal involved the parties, by and large, re-arguing issues of fact that were before the Magistrate. It is necessary to summarise the evidence given by each party at the hearing before the Magistrate and the conclusion reached by the Magistrate.  I emphasise this is a summary only, and does not refer to every aspect of the evidence.

7. Mrs Szumylo made a variety of accusations against Mr Mondon. Some of them were fairly specific and others were quite general. The general complaint was that she was frightened of Mr Mondon. The magistrate commented that Mrs Szumylo had been unable to substantiate the argument by giving details, and in any case regarded the complaint as, in the Magistrate’s words, “amorphous”. The Magistrate appears to conclude that there was no reasonable basis for this complaint, other than the specific things of which Mrs Szumylo complained.

8. I turn to those specific things. The more specific complaints sought to identify particular conduct on behalf of Mr Mondon which caused Mrs Szumylo apprehension, or a fear, or to be intimidated. Some of these specific complaints were found by the Magistrate to lack any firm factual foundation.  For example, Mrs Szumylo alleged that Mr Mondon fired small objects from his yard into hers. Before the magistrate’s court, she produced pieces of metal and refuse that she had found in her yard. She said that chips in the windscreen of her neighbour’s car were caused by Mr Mondon.  However, there is no evidence, apart from Mrs Szumylo’s suggestion, that this firing of projectiles by Mr Mondon ever took place.

9. In a similar category is the claim that Mr Mondon poisoned, or in some other way killed, a pet dog of Mrs Szumylo. The evidence produced to the Magistrates Court did not prove the dog was poisoned or that anything Mr Mondon had done to the dog had led to its death. The certificate that was tendered in evidence referred to a small injury to the dog, but did not establish that had caused its death, let alone that it was done by Mr Mondon. Mrs Szumylo also complained about a letter circulated in the neighbourhood relating to her husband. The letter revealed that he had been imprisoned on criminal charges. Nothing in the evidence proved that Mr Mondon had been involved in the preparation or distribution of the letter. The only thing pointed to by Mrs Szumylo was the fact that, on one occasion when Mr Mondon became angry, he shouted at Mrs Szumylo, referring to her husband’s imprisonment. The Magistrate was not prepared to infer, on this fairly limited basis, that Mr Mondon had been the author of the letter, and it is impossible for me to say that the Magistrate was wrong in so concluding.

10. A similar allegation made by Mrs Szumylo was that Mr Mondon had put graffiti on Mrs Szumylo’s fence. The Magistrate was not prepared to find against Mr Mondon on that basis. The evidence before the magistrate suggested that graffiti was quite common in the area. There was simply no evidence that Mr Mondon had been the one who put the particular graffiti on Mrs Szumylo’s fence. As to these matters, and some of the other matters of which Mrs Szumylo complained, while it is true enough that, in a sense, something happened, there was nothing on the evidence to link the events to Mr Mondon, and that was what the Magistrate concluded, as I have said.  It is not possible for me to say that the Magistrate was wrong in so deciding.

11. Other complaints by Mrs Szumylo were found by the Magistrate also not to be linked to Mr Mondon. Mrs Szumylo alleged before the Magistrate and before me that her washing had been smeared or sprayed with a substance like oil or grease. Mr Mondon gave evidence that Mrs Szumylo’s washing was likely to have been stained by bird droppings, discoloured by the consumption of berries from a tree in Mr Mondon’s yard. The Magistrate was prepared to accept that might have happened, so once again was not able to be satisfied that Mr Mondon was the cause of the stains of which Mrs Szumylo complained.

12. Mr Mondon agreed in his evidence, before the Magistrate, that he was often in the backyard. That accords with Mrs Szumylo’s complaint that Mr Mondon was often in his backyard, and behaving in an offensive manner. In particular, Mrs Szumylo suggested that Mr Mondon was keeping her and her children under surveillance. But before the Magistrate Mr Mondon produced evidence suggesting or supporting his claim that he had a keen interest in astronomy. He tendered a photograph suggesting that he owned a telescope, and he gave evidence about his use of the telescope and his interest in making observations of the sky. He said that he often stood in the backyard looking at the sky, by day and by night. The Magistrate accepted this evidence as a sufficient explanation for his frequent presence in the backyard.  There is nothing unreasonable about the Magistrate’s acceptance of that evidence.

13. Mr Mondon also agreed that he had, on one occasion, following difficulties with his neighbour, abused Mrs Szumylo and called out things about her husband. He agreed that he disliked Mrs Szumylo’s dog and he called it ‘retarded’ on one occasion. He also agreed that on one occasion he loudly banged his shovel on the fence. Mr Mondon’s behaviour in this respect is not to be condoned. However, in the Magistrate’s opinion, it was not sufficient to give rise to reasonable apprehension of intimidating or offensive conduct. Once again, I am unable to say the Magistrate was wrong in deciding that.

14. The Magistrate concluded her reasons by referring to the grounds for a restraining order, which are set out in s 91(1) of the Act, and to the matters that are set out in s 99(2) of the Act, as amounting to intimidating or offensive behaviour. She said:

    “There is no evidence before me of any personal injury or threat of personal injury. There is no evidence of any damage to property or threat to damage property on the part of Mr Mondon.  As far as whether or not he has behaved in an intimidating and offensive manner I make the following comments.  There is no allegation that he has followed her; there is no allegation that he is loitering outside her place of residence or places where she goes; there is no allegation of interfering with property, with the exception of the rather amorphous allegation of finding the items in the backyard.  The only allegation in relation to producing offensive material could solely be related to the letter which was sent within the local neighbourhood; there is no evidence before me that he was responsible for that.  Apart from him standing in the backyard indulging his interest in astronomy there is no evidence that he has been keeping her or anybody else under surveillance. In my view there is no action which has been proved against him which indicates that there is a need for an order.”

15. In that passage the Magistrate summarised her reasons for refusing to confirm the restraining order. In that passage she refused to find each of the possible factual bases for a conclusion of intimidating or offensive behaviour under s 99(2). In my opinion, it was open to the Magistrate to reason in this way.

16. Having heard Mrs Szumylo today and having read the Magistrate’s reasons, it appears to me that the Magistrate did consider all of the relevant evidence.

17. It emerges that as to a number of the matters complained of, the Magistrate was simply not satisfied that Mr Mondon was responsible for them. As to other matters, she was not satisfied that Mr Mondon’s conduct could reasonably be regarded as giving rise to a reasonable apprehension of personal injury or damage to property, or that they amounted to intimidating or offensive behaviour.

18. These are conclusions that were open on the evidence.

19. On appeal, it is not my function to rehear the case and to decide it afresh. I can interfere only if it is shown that the Magistrate has made an error of law or has made findings of fact that cannot be supported on the evidence. No errors of law have been identified.  The findings of fact by the magistrate contained in the summary which I quoted were clearly open on the evidence. I cannot say that the Magistrate’s conclusions are wrong or cannot be supported.

20. In each instance, the Magistrate has shown either that the allegation against Mr Mondon is not made out or that the conduct in question does not provide a basis for confirming the restraining order.

21. Accordingly, because there is no error by the Magistrate, the appeal must be dismissed and I so order.