The State of Western Australia v Legge
[2013] WADC 26
•25 FEBRUARY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LEGGE [2013] WADC 26
CORAM: MCCANN DCJ
HEARD: 15 FEBRUARY 2013
DELIVERED : 25 FEBRUARY 2013
FILE NO/S: IND 787 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
CARL PEARSON LEGGE
Catchwords:
Restraining Orders - Jurisdiction of the District Court pursuant to s 63 of the Restraining Orders Act 1997
Legislation:
Restraining Orders Act 1997, s 3, s 6, s 11A, s 11B, s 12, s 34, s 35, s 63, s 63A
The Criminal Code, s 294(1)
Result:
Finding that the District Court has jurisdiction to make a restraining order pursuant to s 63 of the Restraining Orders Act 1997
Representation:
Counsel:
The State of Western Australia : Mr R G Wilson
The Defendant : Ms M A Loveday
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
The Defendant : M A Loveday
Case(s) referred to in judgment(s):
Australian Crime Commission v Marrapodi [2012] WASCA 103
Grayson v Bartley [2000] WASCA 252
Rolfe v The State of Western Australia [2012] WASCA 169
MCCANN DCJ:
Introduction
On 21 January 2013 the defendant, Mr Legge, was convicted by a jury of one count of wounding or doing grievous bodily harm to Matthew James Worthington with intent to maim, disfigure, disable or do some grievous bodily harm to him, contrary to s 294(1) of the Criminal Code.
In its sentencing submissions the State applied for lifetime violence restraining orders against Mr Legge for the protection of Matthew Worthington and his wife Laura Worthington (nee Puurits), his parents Elizabeth and Murray Worthington and his brother Joseph Worthington (the Worthington group) pursuant to s 63 of the Restraining Orders Act 1997 (the Act). Mr Wilson, who appeared on behalf of the State, informed me that Murray Worthington (who was present in court) had instructed him that all members of the Worthington group supported the application.
The State seeks orders in the same terms as are currently in force pursuant to two year restraining orders which were made for the protection of all of the Worthington group (except Laura Worthington) in the Perth Magistrates Court on 15 February 2012.
The State does not seek restraining orders pursuant to s 63A of the Act since Mr Legge's conviction was not for a 'violent personal offence' as defined in that provision.
Sentencing took place on 15 February 2013. Mr Legge was sentenced to imprisonment for six years backdated to 6 December 2012. I adjourned the application for the restraining orders pending this decision which relates to the court's jurisdiction under s 63.
The legislation
The Act provides for the making of restraining orders against individuals for the protection of persons from violence or misconduct. A 'restraining order' means either a 'violence restraining order' or a 'misconduct restraining order'.
Subject to s 63 and s 63A and div 3A of Pt 2 (which relates to police orders), an application for a restraining order must be made to either the Children's Court or the Magistrates Court (depending on the age of the respondent or the person seeking protection).
Sections 63 and 63A of the Act are contained within div 4 of Pt 6 of the Act which are entitled 'General'. Relevantly, they provide as follows (emphasis added):
63. Making restraining orders during other proceedings
(1)A court, including a judicial officer considering a case for bail, before which a person charged with an offence is appearing may make a restraining order against that person or any other person who gives evidence in relation to the charge.
(2)A court hearing proceedings under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth may make a restraining order against a party to the proceedings or any other person who gives evidence in the proceedings.
(3)A court hearing protection proceedings under the Children and Community Services Act 2004 may make a restraining order against a party to the proceedings or any other person who gives evidence in the proceedings.
(3a)A restraining order may be made under this section —
(a)on the initiative of the court;
(b)at the request of a party to the proceedings;
(c)if the person seeking to be protected is a child, at the request of —
(i)the child;
(ii)a parent or guardian of the child on behalf of the child; or
(iii)in a matter referred to in subsection (3), a child welfare officer on behalf of the child;
(d)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, at the request of the guardian on behalf of the person; or
(e)at the request of a person who gives evidence in the proceedings or in relation to the charge.
(3b)A court may make a restraining order under this section against a person and for the protection of another person even if a restraining order in similar terms in respect of those persons is in force, but if it does, the court must specify that the order comes into force immediately the earlier order expires.
(4)A court is not to make a restraining order under this section unless —
(a)the court is satisfied that there are grounds for making the order under section 11A, 11B or 34, as is appropriate to the case;
(b)the court has had regard to the matters set out in section 12 or 35, as is appropriate to the case; and
(c)the person is present when the order is made and has been given an opportunity to be heard on the matter.
(4a)Subject to subsection (4b) a restraining order made under this section is a final order.
(4b)If a court referred to in subsection (2) is considering making a restraining order and the person who would be bound by the order objects to it being made, the court may make an interim order.
…
63A. Restraining order to be made if certain violent personal offences committed
(1)A court convicting a person for a violent personal offence, within the meaning of subsection (5), is —
(a)to make a violence restraining order against that person for the protection of a victim of the offence unless there is such an order in force already for the period of the life of the person who committed the offence; or
(b)where a violence restraining order is in force for the protection of a victim of the offence, to vary that order by extending the duration of the order.
(2)An order made, or varied, under subsection (1) is to specify that the order is to remain in force for the period of the life of the person who committed the offence.
(3)A restraining order made under this section is a final order.
(4)A court must not make an order under this section if a victim of the offence for whose benefit the court proposes to make a violence restraining order objects to that order being made.
(5)In subsection (1) —
violent personal offence means an offence against section 283, 297, 325, 326, 327 or 328 of The Criminal Code.
The issue and the parties' submissions
The issue which has arisen is whether the court has jurisdiction to make a restraining order pursuant to s 63 against a person who has been both charged and convicted with an offence, as has occurred in this matter.
The negative position upon which Ms Legge relies is that the phrase 'charged [and] … appearing' in s 63(1) predicates that the defendant stands charged and has merely appeared when the order is made. That contention is supported by the wording of s 63A(1) which confers jurisdiction on a court that is 'convicting a person'. It is arguable that the different language signifies different legislative intentions in terms of the court's jurisdiction.
The State contends that jurisdiction is conferred on the court as soon as (or because) a defendant has been charged and appears in the proceedings and that it matters not from a jurisdictional point of view whether he or she is subsequently convicted. Indeed, it seems to me that on the State's position the defendant could be acquitted and yet he or she (or a witness, such as the complainant for that matter) could still be liable to the making of a restraining order against him or her.
Mr Wilson submitted that the State's position is consistent with existing procedure in this court. He referred to Rolfe v The State of Western Australia [2012] WASCA 169 in which the sentencing judge (Stavrianou DCJ) imposed a permanent violence restraining order on an offender who had been convicted of two offences contrary to s 294(1) of the Criminal Code. In their reasons for refusing leave to appeal the Court of Appeal referred to the violence restraining order and noted that it had not been challenged on appeal, but made no further comment (Mazza JA [7]).
Analysis
In my opinion the State's suggested construction of s 63 obtains some assistance from the side-note or sub‑heading ('making restraining orders during other proceedings') which implies that an order might be made at any point during proceedings. Miller J referred to this side-note in Grayson v Bartley [2000] WASCA 252 (obiter, at [5]), albeit on a different point.
This construction is consistent with the wording of subsections (2) and (3) which confer jurisdiction on a court to make a restraining order whilst the relevant court is 'hearing proceedings'. Those subsections were inserted in the Act by the Restraining Orders Amendment Act 2000 and extended the power to make restraining orders under s 63 to courts other than criminal courts (as provided for in subsection (1)). The phrase 'hearing proceedings' is wide enough to embrace the entire hearing, including the final decision. In my view all three subsections should be construed consistently with each other, especially if weight is given to the side-note or sub‑heading.
The construction contended for by the State draws further support from the following.
First, pursuant to subsection (1), the court has power to make a restraining order against any person who gives evidence in relation to the relevant charge, which is wide enough to include the complainant. The justification for such an order might not become apparent until all the evidence has been received and the merits determined. Indeed, as I have suggested, the justification might follow from the acquittal of the defendant.
A court vested with jurisdiction pursuant to s 63 has power to make final and interim orders (subsections (4a) and (4b)). The former type of order predicates that the court has formed a final view on the merits of making an order. In doing so, and pursuant to subsection (4), the court must be satisfied that there are grounds for making the order under s 11A, s 11B and s 34 and the court must have regard to and form opinions about the matters set out in s 12 and s 35. Those requirements necessarily contemplate the court making findings, including on occasions whether the defendant committed the charged act (ie, whether he or she should be found guilty and convicted) in a case in which the order is made against that person.
To illustrate, in this case the State relies on s 11A(a) under which the court must find that the 'defendant has committed an act of abuse against a person seeking to be protected'. The term 'act of abuse' means an act of family or domestic violence or personal violence (s 3). The term 'act of personal violence' has the meaning given by s 6 of the Act (s 3) and includes (subsection (2)), a number of acts including 'assaulting or causing personal injury to the person' or 'threatening to commit' such an act.
There is no apparent reason why the construction of a court's jurisdiction should turn on a semantic distinction between s 63 and s 63A which would countenance premature decision‑making in the one instance but not the other. Worse, such a construction would leave the legislation open to injustices and, indeed, absurd outcomes. For example, it would result in a restraining order made against a charged person lapsing upon his or her conviction which would, in turn, require the protected person to bring a fresh application in the Magistrates Court and re‑testify about the relevant matters and re‑live them with, possibly, the further risk of inconsistent verdicts. In that respect I do note that when s 63A was inserted in the Act (by the Acts Amendment (Family and Domestic Violence) Act 2004) the Attorney‑General, the Honourable JA McGinty, said as follows in the second reading speech (Hansard, 2 June 2004, pages 3303 ‑ 3306; emphasis added):
Fourth, the Bill will allow for a violence restraining order to be automatically granted in some cases … The Bill therefore provides that in cases of rape or extreme assault, victims will automatically obtain a life‑long restraining order against the offender. They will no longer be required to seek another restraining order which will prevent them from having to go through the trauma of re-telling and re-living their ordeal.
Having regard to the final sentence it could be said that the Attorney‑General envisaged that all victims of crime would be obliged to instigate their own proceedings (ie, other than pursuant to s 63) in cases to which s 63A did not apply.
In my respectful view such an interpretation of the second‑reading speech reads too much into what was a subsidiary point. The Attorney‑General's primary point was that the making of a violence restraining order would be mandatory (subject to any objection by the victim) when s 63A applied. He did not intend to comment upon the construction or application of the discretionary judicial powers which were already provided for elsewhere in the Act. In that respect it is to be noted that a victim who objected to the making of a violence restraining order pursuant to s 63A would still be at liberty to apply for discretionary relief under s 63. In short, the second reading speech was directed to s 63A and sheds no light on the construction of s 63 itself.
In conclusion, in my opinion the difference in terminology between s 63 and s 63A, ie, between 'charged and appearing' and 'convicting' is not decisive as to the construction of subsection 63(1).
Lastly, but not least, I remind myself that the rejection of the State's suggested construction of subsection 63(1) would represent a departure from a construction which has been adopted by at least one judge of this court. It is not appropriate for me to depart from that construction unless I am satisfied that it is plainly wrong: AustralianCrime Commission v Marrapodi [2012] WASCA 103, and the cases therein cited at [41], McLure P. I am not satisfied that such is the case. On the contrary, I concur with the construction that was adopted in Rolfe.
Conclusion
For these reasons I am satisfied that s 63 of the Act confers jurisdiction on the court to make a restraining order against Mr Legge in favour of any members of the Worthington group who warrant it notwithstanding that, having been convicted, it is no longer literally apposite to describe him as 'a person charged and appearing'.
I will now hear submissions from the parties as to the terms of the orders sought, including who should be protected and for what period.
0
3
2