Tonkin v Shaw - [2021] WASC 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TONKIN -v- SHAW [2021] WASC 254
CORAM:   TOTTLE J
HEARD:   5 MAY 2021 & FURTHER WRITTEN SUBMISSIONS FILED ON 12 MAY 2021 & 19 MAY 2021
DELIVERED          :   30 JULY 2021
FILE NO/S:   SJA 1075 of 2020
BETWEEN:   JAMIE CHRISTOPHER TONKIN
Appellant
AND
WAYNE ARTHUR SHAW
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T R HALL
File Number            :   AR 1755 of 2020, AR 1756 of 2020

Catchwords:

Criminal law - Appeals - Breach of restraining order - Requirement not to 'intimidate' protected person - Whether conviction unreasonable or not supported by the evidence - Where context relevant to question of intimidation - Where appellant not a reliable or credible witness - Application of propensity evidence - Appeal dismissed

Legislation:

Criminal Code (WA), s 338D, s 338E
Evidence Act 1906 (WA), s 31A
Restraining Orders Act 1997 (WA), s 6, s 12(1), s 13(2), s 61(1A),

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms E R Zillessen
Respondent	:	Ms P A Femia

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Hellings v The Queen [2003] WASCA 208
MEN v The State of Western Australia [2020] WASCA 118
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Tonkin v McIntosh [2021] WASC 118

TOTTLE J:

Introduction

The appellant has applied for leave to appeal against two convictions entered on 10 September 2020. The convictions were in respect of:
(a)breaching a violence restraining order (VRO) contrary to s 61(1A) of the Restraining Orders Act 1997 (WA);
(b)pursuing another in a manner that could reasonably be expected to intimidate and does in fact intimidate contrary to s 338E(2) of the Criminal Code (WA) (commonly known as stalking).[1]
[1] The appellant was charged with the more serious offence of stalking with intent to intimidate under s 338E(1) of the Criminal Code but was convicted of lesser alternative offence of a contravention of s 338(E)(2).
The stalking offence was committed between 23 January 2020 and 10 February 2020 and the breach of the VRO was committed on 10 February 2020.
The grounds on which the applications for leave to appeal are based are that the convictions were unreasonable and not supported by the evidence.

The statutory provisions

Under the Restraining Orders Act 1997 (WA), when a court is considering whether to make a VRO and what the terms of the order should be, the court must consider the need to protect the applicant from personal violence, and the need to prevent behaviour that could reasonably be expected to cause the applicant to apprehend they will have personal violence committed against them.[2] The stalking of an applicant is an act of personal violence.[3] In this context 'stalking' is defined…

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 Tonkin v Shaw

Details

AGLC: Tonkin v Shaw [2021] WASC 254
Case: [2021] WASC 254
Decision Date

CaseChat Overview and Summary

The case of Tonkin v Shaw involved an appeal by Jamie Christopher Tonkin against his convictions for breaching a violence restraining order and stalking. The appeal was dismissed by Justice Tottle of the Supreme Court of Western Australia. Tonkin was convicted of breaching a violence restraining order and stalking the same complainant within a short period, having previously been convicted of stalking her. The appeal grounds were that the convictions were unreasonable and not supported by the evidence. The court found that the convictions were supported by the evidence, particularly the propensity evidence and the complainant's credible testimony. The court also rejected Tonkin's arguments about the interpretation of the terms of the violence restraining order. The appeal was dismissed as the grounds did not have a reasonable prospect of success.

Orders