JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TSANG -v- FRANCIS [2021] WASCA 131
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 14 DECEMBER 2020
DELIVERED : 27 JULY 2021
FILE NO/S: CACR 136 of 2019
BETWEEN: DAVID KENNETH TSANG
Appellant
AND
JARROD RUSSELL FRANCIS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
Citation: TSANG v FRANCIS [2019] WASC 290
File Number : SJA 1041 of 2018
Catchwords:
Criminal law - Appellant convicted in the Magistrates Court on his plea of guilty of breaching a family violence restraining order 'by approaching and communicating with the protected person' contrary to s 61(1) of the Restraining Orders Act 1997 (WA) - Appellant's appeal against conviction to the Supreme Court in its General Division dismissed - Appellant sought to adduce additional evidence in his appeal before the primary judge - Whether the primary judge applied the wrong test in relation to the admission of the additional evidence -Whether the primary judge erred in failing to make findings of fact - Whether the primary judge erred in deciding that a statement allegedly made by a police officer to the appellant did not constitute an improper inducement to the appellant to plead guilty - Whether the primary judge erred in deciding that in any event the appellant's plea of guilty was not attributable to or a result of the statement allegedly made by the police officer - Whether the primary judge erred in deciding that the appellant breached the restraining order 'by approaching' the protected person - Whether the primary judge erred in deciding that the appellant breached the restraining order 'by communicating with' the protected person - Whether the primary judge erred in finding that s 62(1)(ca) of the Restraining Orders Act did not provide the appellant with a defence to the charge - Whether a miscarriage of justice occurred in the Magistrates Court which required the appellant's plea of guilty and the judgment of conviction to be set aside - Whether the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) should be applied
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 14(1), s 14(2), s 16(2), s 18, s 36, s 39(1), s 39(3), s 40(1)(e)
Interpretation Act 1984 (WA), s 18, s 29
Restraining Orders Act 1997 (WA), s 3, s 10A, s 10D, s 10F(1), s 10G, s 61(1), s 62(1)(ca)
Result:
Appellant's applications filed on 11 and 17 August 2020 in the appeal to this court dismissed
Leave to appeal granted
Appealed allowed
The order by the primary judge dismissing the appellant's appeal to the Supreme Court in its General Division, and the order for costs made by the primary judge, set aside
Appellant's appeal to the Supreme Court in its General Division allowed
Appellant's plea of guilty in the Magistrates Court set aside
The judgment of conviction entered and the order for costs made in the Magistrates Court quashed
Matter remitted to the Magistrates Court for a new hearing
Category: A
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr A J Sefton SC & Mr J F Bennett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Abella v Anderson [1987] 2 Qd R 1
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; (2011) 80 NSWLR 113
Beamish v The Queen [2005] WASCA 62
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chowdhury v Kenny [No 2] [2012] WASCA 35
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Clarke v The State of Western Australia [2018] WASCA 14
Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia (Qld Branch) [1988] 2 Qd R 385
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129
Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 252 FLR 108
Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Horvath v Sharples [2018] WASC 315
Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Lynn v The State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117
Mikulic v The State of Western Australia [2011] WASCA 14
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59
R v Inns (1974) 60 Cr App R 231
Re Day (No 2) [2017] HCA 14; (2017) 263 CLR 201
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431
Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; (2013) 85 NSWLR 580
SYO v The State of Western Australia [2020] WASCA 202
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Tickner v Bropho (1993) 40 FCR 183
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Tsang v Francis [2019] WASC 290
Vella v The State of Western Australia [2006] WASCA 129
Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1
JUDGMENT OF THE COURT:
On 18 April 2018, the appellant was convicted, on his plea of guilty in the Magistrates Court before Magistrate Tavener, of one charge in a prosecution notice.
The charge alleged, in essence, that on 11 April 2018, at Midland, the appellant, being bound by an interim Family Violence Restraining Order (FVRO), breached the order 'by approaching and communicating with the protected person', contrary to s 61(1) of the Restraining Orders Act 1997 (WA).
The FVRO was made pursuant to, relevantly, s 10D of the Restraining Orders Act.
The Magistrate made a conditional release order in the sum of $1,000 for a period of nine months and ordered the appellant to pay costs of $100. A spent conviction order was neither sought nor made.
The appellant applied for leave to appeal to the Supreme Court in its General Division against his conviction. On 13 August 2019, Hill J granted leave to appeal, but found that the grounds of appeal had not been made out. The appeal was dismissed. See Tsang v Francis.[1] At judgment delivery her Honour ordered the appellant to pay the respondent's costs of the appeal fixed in the sum of $6,000.
[1] Tsang v Francis [2019] WASC 290.
The appellant has now applied for leave to appeal to this court against Hill J's decision.
We would grant leave to appeal. The appeal should be allowed.
The relevant provisions of the Restraining Orders Act
Section 3(1) of the Restraining Orders Act provides that in the Act, unless the contrary intention appears:
(a)family violence restraining order means an order made under the Act imposing restraints of the kind referred to in s 10G; and
(b)respondent means the person against whom a restraining order is sought.
Section 3(2) provides that, in the Act, the abbreviation 'FVRO' is used for family violence restraining order.
Part 1B of the Restraining Orders Act is headed 'Family violence restraining order' and comprises s 10A to s 10H.
Section 10A states that the objects of Part 1B are as follows:
(a)to maximise the safety of persons who have experienced, or are at risk of, family violence;
(b)to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;
(c)to protect the wellbeing of children by preventing them from being subjected or exposed to family violence;
(d)to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;
(e)to make perpetrators of family violence accountable to the court for contraventions of court imposed restrictions designed to prevent them from committing further family violence.
Section 10D provides:
(1)A court may make an FVRO if it is satisfied that ‑
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
Section 10F(1) specifies a number of matters which a court must have regard to in considering whether to make an FVRO and the terms of the order.
Section 10G provides, relevantly:
(1)In making an FVRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent ‑
(a)committing family violence against the person seeking to be protected; or
(b)if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
(c)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
(2)Without limiting the restraints that may be imposed under subsection (1), a court may restrain the respondent from doing all or any of the following ‑
…
(b)being on or near specified premises or in a specified locality or place;
(c)approaching within a specified distance of the person seeking to be protected;
…
(e)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
…
(3)A restraint may be imposed on the respondent on such terms as the court considers appropriate.
(4)An FVRO may restrain the respondent from entering or remaining in a place, or restrict the respondent’s access to a place, even if the respondent has a legal or equitable right to be at the place.
Section 61(1) provides, relevantly, that a person who is bound by an FVRO and who breaches that order commits an offence.
Section 62(1)(ca) provides that it is a defence to a charge under s 61 for the person who is bound by the order to satisfy the court that, in carrying out the act constituted by the offence, the person was 'attending a court hearing in proceedings under this Act or under any other written law'.
The terms of the FVRO relevant to this appeal
On 8 January 2018, the protected person obtained the FVRO against the appellant.
Part A of the FVRO provided, relevantly, that the appellant must not 'except as set out in Part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text message or any other electronic means [or] approach or remain within 25 metres of the Person Protected'.
Part B of the FVRO provided, relevantly, that the appellant would not breach the orders in Part A if the appellant was to 'participate in and attend court events in proceedings in which the Person Protected and [the appellant] are parties or witnesses, and to comply with any order or direction of a Court'.
The proceedings before the Magistrate
The appellant was self-represented in the proceedings before the Magistrate.
On 18 April 2018, when he appeared before the Magistrate, the appellant explained that he would plead guilty. The appellant said that he had made a 'drastic mistake'. He told the Magistrate that he thought he could talk to the protected person in the court. The appellant said that he had to plead guilty because 'I did approach them, but I plead guilty on the fact that I didn’t know'. The Magistrate then told the appellant that he would read the charge to him and the appellant could plead guilty if he wanted to (ts 2 ‑ 3).
The Magistrate put the charged offence to the appellant and he pleaded guilty (ts 3).
Next, the prosecutor read aloud the material facts asserted by the prosecution. The prosecutor said, in essence, that the FVRO was served on the appellant on 8 January 2018 and that under the order communication by the appellant with the protected person was not permitted unless they were 'participating in some court proceedings' (ts 3). The prosecutor referred, in substance, to the appellant and the protected person having participated on 11 April 2018 in court proceedings at the Midland Magistrates Court.
The prosecutor then said:
When the court proceedings [were completed the appellant] entered the main Registrar's office. The complainant and her associate walked in behind. The associate made a comment to [the appellant] about having photos of him which made him angry. [He] turned around, walked back towards them, made a comment about another witness to her (ts 3).
The prosecutor added that, when interviewed, the appellant said:
I thought I could talk to her in the courthouse. I made a genuine mistake (ts 3).
The Magistrate then imposed sentence and made the order for costs.
The appeal before Hill J
The appellant was self-represented in the appeal before Hill J.
The appellant's sole ground of appeal before her Honour alleged that there had been a 'miscarriage of justice'. Subsequently, a particular of the ground was added. The particular alleged that the appellant's plea of guilty should be set aside 'as it was obtained by intimidation and inducement'.
On 21 February 2019, the appellant filed an application in the appeal for leave to adduce additional evidence. The additional evidence comprised the appellant's affidavit filed 21 February 2019. A large number of documents were annexed to the affidavit.
In his affidavit, the appellant deposed that after being arrested by the respondent, namely Senior Constable Francis, at the appellant's house and before leaving his house for the police station, '[Senior Constable Francis] told me I must warn you that if you plead not guilty, there is no bail'.
In his affidavit, the appellant also deposed to his version of various events that had occurred on 11 April 2018, including at the Midland Magistrates Court registry.
On 29 March 2019, the respondent's solicitors filed an affidavit of Senior Constable Francis and an affidavit of Constable De Montereau in response to the appellant's affidavit.
At the hearing of the appeal, Hill J heard oral evidence from the appellant, Senior Constable Francis and Constable De Montereau, limited to:
(a)the circumstances of the appellant's arrest on 18 April 2018, and what had occurred before the appellant appeared in the Midland Magistrates Court later on 18 April 2018, which were relevant to whether the appellant had been induced to plead guilty; and
(b)the events on 11 April 2018, which were relevant to whether the appellant should have been convicted of the offence and whether a miscarriage of justice had occurred.
The appellant, Senior Constable Francis and Constable De Montereau were cross‑examined at the hearing of the appeal.
Ultimately, her Honour refused leave for the appellant to adduce additional evidence in the appeal. Although her Honour did not make an express ruling, it is apparent that her Honour did not admit as additional evidence the evidence given by Senior Constable Francis and Constable De Montereau.
After the hearing of the appeal, the appellant sought to adduce, without leave, further evidence by sending information to Hill J's associate. Her Honour did not consider that information in arriving at her decision.
The appellant's affidavit included, relevantly, evidence to the following effect:
(a)On 6 February 2018, the appellant obtained a Misconduct Restraining Order (MRO) against the protected person pursuant to s 36 of the Restraining Orders Act.
(b)On 11 April 2018:
(i)the appellant went to the Midland Magistrates Court for the purposes of a court hearing before a Magistrate in civil proceedings he had commenced against the protected person;
(ii)after the court hearing before the Magistrate had concluded, the appellant went into the registry for the purpose of obtaining a court form;
(iii)in the registry the appellant took a ticket from a queue ticket dispenser machine;
(iv)the protected person and her friend followed the appellant into the registry;
(v)the protected person's friend shouted at the appellant 'we've got pictures of you on our phones - watch out';
(vi)the appellant then approached the protected person's friend who was standing in front of the protected person; and
(vii)the protected person's friend 'started abusing [him] after [he] told both of them 'don’t threaten me and tell Maddie thanks for going against me'.
(c)On the morning of 18 April 2018, Senior Constable Francis and Constable De Montereau attended at the appellant's home and told him they had come to arrest him for breach of an interim FVRO and, after some discussion, Senior Constable Francis 'told me I must warn you that if you plead not guilty there is no bail'.
(d)After the appellant was arrested, Senior Constable Francis and Constable De Montereau conveyed the appellant to Midland police station where he was strip searched, then placed in a cell and then interviewed. The appellant was informed that there was no duty lawyer.
(e)Later on 18 April 2018, the appellant appeared in the Magistrates Court before Magistrate Tavener. The appellant pleaded guilty to the charged offence. The hearing in the Magistrates Court began at 12.05 pm and ended at 12.10 pm.
At the hearing before Hill J, the appellant gave oral evidence‑in‑chief to the following effect:
(a)on 11 April 2018, the appellant understood that he was bound by a restraining order that had been made on the application of the protected person;
(b)on 11 April 2018, at a hearing in the Midland Magistrates Court the protected person told the magistrate that Madeline Brown would attend court and inform the magistrate 'how bad [the appellant] is';
(c)on 11 April 2018, the magistrate told the appellant to go to the registry of the Midland Magistrates Court and obtain a form 20A that the appellant needed;
(d)on 11 April 2018, the appellant went to the registry and took a ticket from the queue ticket dispenser machine;
(e)the protected person and the person she was with (who appears to have been Donna Barnett) followed the appellant into the registry and threatened him;
(f)the appellant said that the threatening words were uttered by Ms Barnett (and not the protected person) and were 'you better watch out. We've got photos of you on my phone';
(g)the appellant said that he then uttered 'don’t you threaten me' and went and sat down on a seat in the registry;
(h)the appellant said that he then got up and thought 'no' and he walked towards Ms Barnett and the protected person and said 'don’t you dare threaten me, right, because you've just breached your restraining order'; and
(i)the appellant said that Ms Barnett shouted that the appellant was breaching a restraining order and asked for witnesses (ts 82 ‑ 88).
The appellant gave evidence in cross-examination to the following effect:
(a)when he was arrested, the appellant had never previously been charged with an offence and he did not know what bail was (ts 90);
(b)at that time the appellant did not know that bail was a matter for a judge or a magistrate (ts 90);
(c)Senior Constable Francis told the appellant 'if you plead not guilty, there is no bail' (ts 91);
(d)Senior Constable Francis told the appellant that he 'was not going to get any bail if [he] pleaded not guilty' (ts 91);
(e)the police gave the appellant 'no attempt whatsoever to apply for bail' (ts 91);
(f)the police never told the appellant that he could apply for bail (ts 91);
(g)at that time the appellant did not know anything about bail (ts 91);
(h)Senior Constable Francis never told the appellant that he could not grant him bail and that bail was something the magistrate would need to consider, unless the appellant pleaded guilty (ts 94);
(i)the appellant pleaded guilty because, as he saw it, if he did not plead guilty he would be sent to prison (ts 94);
(j)the appellant was concerned that if he did not plead guilty there would be no bail (ts 94);
(k)the appellant pleaded guilty:
[T]o have it done and over with, so as I could go home. Because I told myself: I'm going to fight this another day. I'm going to have to fight this another day. The day ‑ the minute that they took my clothes off me and put me in a cell for an hour and a half, I told myself then: I'm pleading guilty and I'm going home, and I'm going to get help – I'm going to get a lot of help with this (ts 94 ‑ 95).
(l)the appellant pleaded guilty because he 'was petrified [he] wasn’t going to get bail' (ts 95); and
(m)as at 11 April 2018 the appellant understood that 'there was a restraining order taken out by the protected person against [him]' (ts 97).
The appellant gave this evidence in answer to questions asked by Hill J:
(a)when the appellant approached the protected person and Ms Barnett in the Midland Magistrates Court registry he said 'tell Maddie thanks a lot for going against me' (ts 108); and
(b)the appellant directed those words to both the protected person and Ms Barnett (ts 108).
Senior Constable Francis denied in his affidavit that he had told the appellant that 'if he pleaded not guilty there is no bail' [38].
Senior Constable Francis elaborated [38]:
I definitely did not say that to [the appellant]. It would be a ridiculous thing to say. You cannot induce someone to plead guilty.
Senior Constable Francis also deposed [40]:
I think I told [the appellant] we would try to get him over to the Court as quickly as possible for the Magistrate to consider his bail. This is a pretty standard thing to say, particularly when someone hasn’t been to a police station before. Understandably, they don’t want to spend all night in custody and it was a minor breach.
At the hearing before her Honour, Senior Constable Francis was cross‑examined by the appellant. It is sufficient, for present purposes, to note that Senior Constable Francis denied in cross‑examination that he had said to the appellant words to the effect that 'if you plead not guilty, there is no bail' (ts 119).
Constable De Montereau referred in his affidavit to the appellant's allegation that Senior Constable Francis had told the appellant that 'if he pleaded not guilty there is no bail', and deposed [38]:
I don't recall that being said. It also would not make sense for Senior Constable Francis to say that. It's the Magistrate who would make the decision to grant [the appellant] bail.
At the hearing before her Honour, Constable De Montereau was cross‑examined by the appellant. It is sufficient, for present purposes, to note that Constable De Montereau denied in cross‑examination that Senior Constable Francis had told the appellant 'if you plead not guilty, there is no bail' (ts 146).
Hill J referred in her reasons to the discretionary power of the court under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to admit 'any other evidence' for the purposes of dealing with an appeal. Her Honour characterised the evidence sought to be adduced by the appellant on appeal as 'new evidence' as distinct from 'fresh evidence' [48]. Her Honour said that the test to be applied in determining whether to set aside the appellant's conviction was 'whether the new evidence establishes that the appellant should not have been convicted and there would be a miscarriage of justice to allow the conviction to stand' [48]. Her Honour added that it was not sufficient for the appellant 'to show that there was an increased chance of acquittal of [the charge] if the evidence was adduced' [49]. It was necessary for the appellant to show that 'he is innocent or to raise such doubt that the court concludes that the appellant should not have been convicted' [49].
Her Honour identified two issues for determination. First, 'whether there were any actions by the police officers that, as a matter of law, amount to inducement or intimidation, such that the appellant's plea of guilty cannot be considered to be voluntary' [51]. Secondly, 'whether on the facts, including the new evidence, the appellant could not be convicted of the offence he was charged with' [51]. Her Honour added, in relation to the second issue, that it was necessary to consider whether the appellant's conduct in the Midland Magistrates Court registry fell within the exemption in Part B of the FVRO or whether the appellant had a defence under s 62(1)(ca) of the Restraining Orders Act.
As to the first issue, her Honour was of the view that, in assessing the appeal, it was necessary 'to consider whether the appellant's plea of guilty was induced by anything that was said by Senior Constable Francis and whether this deprived the appellant of the free choice as to whether or not to plead guilty' [53]. Her Honour noted that there was 'no suggestion by the appellant that Senior Constable Francis told him he had to plead guilty or that it was necessary for him to do so when he appeared before the … magistrate on the afternoon of his arrest' [53]. Her Honour also noted that 'the appellant's evidence does not go so far as to state that the alleged statement [by Senior Constable Francis] made him feel that he had no other choice … than to plead guilty' [53].
Hill J did not make any findings of fact in relation to the appellant's affidavit and oral evidence. In particular, her Honour did not resolve the material differences between the evidence of the appellant, on the one hand, and the evidence of Senior Constable Francis and Constable De Montereau, on the other. Rather, her Honour held, in effect, that it was immaterial whether or not Senior Constable Francis had made the alleged statement to the appellant.
Her Honour said that she had taken into account that 'the appellant did not have an opportunity to seek legal advice before pleading guilty and that he was unrepresented when he appeared before the … magistrate on 18 April 2018' [54].
Hill J held that even if Senior Constable Francis told the appellant 'if you plead not guilty there is no bail', her Honour was 'unable to conclude that the appellant was improperly induced to plead guilty or that the appellant was deprived of the free choice as to whether or not to plead guilty' [55]. Her Honour gave the following reasons [56]:
First, when the appellant was interviewed by the police, he accepted that he approached the protected person. Second, when the appellant appeared before the learned magistrate, he again acknowledged that he had approached the protected person and stated that he had made a 'drastic mistake' because he thought he could approach the protected person in the court. Third, he said that he had to plead guilty as he had approached the protected person. These statements are consistent with the new evidence that the appellant sought to adduce on the appeal, including the evidence in his affidavit, the documentary evidence annexed to his affidavit and his oral evidence at the hearing.
Her Honour said that the matters to which she had referred supported 'a conclusion that the appellant's plea of guilty was attributable to a genuine consciousness of guilt and was not a result of a statement, if any, made to him by Senior Constable Francis' [57].
As to the second issue, Hill J construed the relevant provisions of the FVRO. Her Honour reasoned, relevantly, as follows:
(a)The FVRO prevented the appellant from communicating with, or approaching or remaining within 25 m of, the protected person unless the appellant was either participating in or attending court events in which they were both involved or he was complying with any order or direction of the court [73].
(b)However, any communication by the appellant to the protected person 'within the court building or surrounding area' did not fall within the exemption in Part B of the FVRO, 'nor did [the exemption] entitle the appellant to approach the protected person outside the court hearing room' [74].
(c)Her Honour was of that opinion for two reasons. First, the relevant exemption concerned participation in and attendance at 'court events' in 'proceedings' [75]. An event is 'something which occurs in a certain place during a particular interval of time' [75]. It followed, according to her Honour, that the relevant exemption applied to participation in and attendance at 'a court event or hearing which is listed at a particular time' [75]. Her Honour explained that if it had been intended that the relevant exemption 'was to apply more generally within the court building, the FVRO would state this' [75]. Secondly, that construction was 'consistent with the purpose of the [Restraining Orders Act] which is to maximise the safety of the protected persons and to reduce to the greatest extent possible the incidence of family violence' [76].
(d)The appellant's contention that the protected person should not have entered the Midland Magistrates Court registry because of the MRO which the appellant had obtained against the protected person was not a defence to the charge [77]. In particular, although the conduct of Ms Barnett towards the appellant 'undoubtedly caused or contributed to [the appellant's] breach of the FVRO', Ms Barnett's conduct was not a defence to the charge [77].
Next, her Honour referred to s 62(1)(ca) of the Restraining Orders Act which provides, in essence, that it is a defence to a charge under s 61 for the person bound by the order to satisfy the court that, in carrying out the act constituted by the offence, the person was 'attending a court hearing in proceedings under this Act or under any other written law' [78].
Hill J said, in effect, that the defence under s 62(1)(ca) applies to any proceedings, whether those proceedings involve an application under the Restraining Orders Act or not. However, the defence does not apply to 'an act that would otherwise be an offence which occurs in the court building' [85].
Her Honour observed that the appellant approached and communicated with the protected person 'in the court building but not during the course of any court hearing' and, consequently, s 62(1)(ca) of the Restraining Orders Act did not provide the appellant with a defence to the charge [86].
Her Honour concluded that 'the new evidence sought to be adduced by the appellant is not sufficient to raise a doubt that the appellant should not have been convicted of a breach of the … FVRO' [87]. Her Honour therefore refused the appellant leave to adduce that evidence.
As I have mentioned, Hill J granted leave to appeal, but dismissed the appeal.
The appellant's grounds of appeal before this court
The appellant relies upon five grounds in his appeal from Hill J's decision.
The grounds read:
(1)The judge erred in law in finding that:
(a)because the evidence sought to be adduced was 'new evidence', in order for the evidence to be admitted it was necessary for the appellant to show that, having regard to the new evidence, he was innocent or that, having regard to the new evidence, there was such a doubt that the court must conclude that the appellant should not have been convicted (reasons [49]); and
(b)that test not having been satisfied, leave to adduce the new evidence should be refused (reasons [87]).
(2)The judge erred in fact and law in:
(a)failing to make a finding as to whether Senior Constable Francis told the appellant that 'if you plead not guilty, there is no bail'; and
(b)failing to find that, if the statement was made, the statement amounted to an improper inducement, which meant that the appellant's plea of guilty was not the result of a free and voluntary choice; further or alternatively, that the statement gave rise to a miscarriage of justice.
(3)The judge erred in fact and law in finding that the exemption in the [FVRO] that:
YOU WILL NOT BREACH THE ORDERS IN PART A IF YOU: ... participate in and attend court events in proceedings in which the Protected Person and you are parties or witnesses ... ,
did not entitle the appellant to approach the protected person outside the court hearing room but within the court building (reasons [74]).
(4)The judge erred in law in finding that s 62(l)(ca) of the Restraining Orders Act 1997 (WA) did not provide the appellant with a defence to the charge when he committed the act 'in the court building but not during the course of any court hearing' (reasons [86]).
(5)The judge erred in failing to consider whether there was a miscarriage of justice requiring the appellant's plea of guilty to be set aside by reason of the following circumstances:
(a)When he pleaded guilty, the appellant had been told by police, or alternatively the appellant mistakenly understood he had been told by police, that 'if you plead not guilty there is no bail'.
(b)That statement by police, or alternatively the appellant's mistaken understanding, influenced the appellant's decision to plead guilty to the charge.
(c)On the facts asserted by the prosecutor, the appellant had a defence, alternatively a reasonably arguable defence, to the charge on the ground that in carrying out the act that allegedly constituted the offence he was:
(i)attending a court hearing in proceedings under the Act, within the meaning of s 62(1)(ca) of the Restraining Orders Act; and
(ii)participating in and attending court events in proceedings in which the Protected Person and he were parties or witnesses, within the meaning of Part B of the [FVRO].
Ground 1: the submissions of the parties
The appellant was self-represented in the appeal to this court. His submissions on ground 1 did not add materially to the assertions made in the ground.
Counsel for the respondent conceded that Hill J erred in her approach to the exercise of the discretion under s 40(1)(e) of the Criminal Appeals Act to admit 'any other evidence' for the purposes of dealing with the appeal. In particular, counsel accepted that her Honour erred in exercising her discretion by reference to the test which distinguishes new evidence from fresh evidence.
Ground 1: its merits
Section 8(1) of the Criminal Appeals Act provides, relevantly and in effect, that an appeal against conviction may be made under div 2 of pt 2 of the Act on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(b)that there has been a miscarriage of justice.
An accused person may enter a plea of guilty whether or not the accused believes that he or she has committed the alleged offence. As Dawson J observed in Meissner v The Queen:[2]
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence …
See also, to similar effect, the statement of Brennan, Toohey and McHugh JJ in Meissner (141).
[2] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157.
Although the entry of a plea of guilty constitutes an admission, as a matter of law, of all the elements of the offence, the entry of the plea does not necessarily constitute an admission, as a matter of fact, that the accused has a consciousness of guilt in relation to the offence. The entry of a plea of guilty does not necessarily indicate that the accused believes that he or she has in fact committed the offence. See SYO v The State of Western Australia.[3]
[3] SYO v The State of Western Australia [2020] WASCA 202 [166] (Buss P, Murphy & Mazza JJA).
In Meissner, Brennan, Toohey and McHugh JJ said:
(a)A court will act on an accused's plea of guilty when the plea is entered in open court by a person who is an adult and appears to be of sound mind and understanding, provided the plea is entered 'in the exercise of a free choice in the interests of [the accused]' (141).
(b)There is no miscarriage of justice if the court does act on such a plea, even if the accused is not in fact guilty of the charged offence (141).
Brennan, Toohey and McHugh JJ then referred to the following statement of principle by Lawton LJ in R v Inns:[4]
The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.
Brennan, Toohey and McHugh JJ said that '[i]t may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered' (142). Their Honours added that if an accused enters a plea of guilty in purported exercise of a free choice to serve the accused's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice and, in such a case, the court is falsely led to dispense with a trial on the faith of a defective plea (142).
[4] R v Inns (1974) 60 Cr App R 231, 233.
In Meissner, Brennan, Toohey and McHugh JJ expressed these views about whether particular kinds of conduct will have the tendency improperly to induce an accused to plead guilty or the tendency to interfere with an accused's free choice to plead not guilty (143):
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution.
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. See Meissner (157).
The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia:[5]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
[5] Vella v The State of Western Australia [2006] WASCA 129 [26].
Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia.[6] See also Chowdhury v Kenny [No 2];[7] Bowdenv The Stateof Western Australia.[8]
[6] Mikulic v The State of Western Australia [2011] WASCA 14 [23].
[7] Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P; Buss & Mazza JJA agreeing).
[8] Bowdenv The Stateof Western Australia [2013] WASCA 118; (2013) 45 WAR 168 [19] (Buss JA; McLure P & Mazza JA agreeing).
Pt 4 of the Criminal Appeals Act is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.
Section 39(1) provides that an 'appeal court' must decide an appeal on the evidence and material that were before the 'lower court'.
Section 36 provides that, in pt 4, unless the contrary intention appears:
(a)'appeal court', in relation to an appeal, means the division of the Supreme Court that has jurisdiction to hear the appeal; and
(b)'lower court', in relation to an appeal, means the court that made the decision that is the subject of the appeal.
For present purposes, the 'appeal court' was the General Division of the Supreme Court constituted by Hill J and the 'lower court' was the Magistrates Court constituted by Magistrate Tavener.
Section 39(3) provides that s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.
Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may 'admit any other evidence'.
In Clarke v The State of Western Australia,[9] Buss P (Mazza JA agreeing) made these observations about s 40(1)(e) in the context of an appeal to this court under pt 3 of the Criminal Appeals Act:
The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power. See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).
[9] Clarke v The State of Western Australia [2018] WASCA 14 [236].
Those observations apply, with necessary modifications, in the context of an appeal under div 2 of pt 2 of the Criminal Appeals Act.
There is, of course, a well-established distinction at common law between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen.[10]
[10] Beamish v The Queen [2005] WASCA 62 [9] (Steytler, Wheeler & McLure JJ).
Traditionally, the courts have treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen.[11]At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen;[12] Mickelberg v The Queen.[13]
[11] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J).
[12] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ).
[13] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ).
Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and
(b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
In Clarke [246], Buss P said:
In my opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.
The principles discussed in Clarke (and in numerous other cases in this court) in relation to:
(a)this court's power under s 40(1)(e) to admit 'any other evidence' in an appeal against conviction; and
(b)the distinction between fresh evidence and new evidence in an appeal against conviction,
were formulated and discussed in the context of an appeal against conviction following a trial.
The public policy considerations underpinning the common law distinction between fresh evidence and new evidence, in the context of an appeal against conviction following a trial, were explained by Mason J in Lawless (675 ‑ 676) as follows:
However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence. The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.
As Buss P (Mazza JA agreeing) observed in Clarke [236], the subject matter, scope and purpose of the relevant provisions of the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power conferred by s 40(1)(e).
As we have indicated at [70] above, where an appellant appeals against a conviction based on a plea of guilty, the appellant must satisfy the appellate court that a miscarriage of justice has occurred.
Also, as we have indicated at [71] above, there are three well-recognised circumstances in which an appellate court is prepared to set aside a conviction based on a plea of guilty, namely:
(a)where the appellant did not understand the nature of the charge or intend to admit guilt;
(b)upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(c)the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
However, the circumstances which will constitute a miscarriage of justice, where an appellant contends that his or her conviction based on a plea of guilty should be set aside, are not closed and cannot be exhaustively stated.
Where an appellant appeals against a conviction based on a plea of guilty, it is open to the appellant to make application in the appeal for leave to adduce additional evidence which indicates that the appellant did not enter the plea in an exercise of a free and voluntary choice.
In the present case, the appellant contended, in effect, in the appeal before Hill J, that his plea of guilty in the Magistrates Court was not entered in an exercise of a free and voluntary choice because Senior Constable Francis had told him, after he was arrested, that 'if you plead not guilty, there is no bail'.
The evidence adduced by the appellant in the appeal before Hill J was relevant to and probative of whether the appellant was exercising a free and voluntary choice when he entered the plea of guilty before Magistrate Tavener in open court. The evidence sought to establish that the appellant's plea of guilty should be set aside because the statement allegedly made by Senior Constable Francis to the appellant, after he was arrested, was an improper inducement to plead guilty and was operative when the appellant entered the plea.
The common law distinction between fresh evidence and new evidence, in an appeal against conviction following a trial, was not applicable to the evidence sought to be adduced by the appellant before Hill J. The evidence in question sought to establish that a miscarriage of justice had occurred in the proceedings in the Magistrates Court because the plea of guilty was not entered in an exercise of a free and voluntary choice. The public policy considerations referred to by Mason J in Lawless (675 ‑ 676), which underpin the common law distinction between fresh evidence and new evidence in an appeal against conviction following a trial, were not in point. It was necessary for the appellant, in the present case, to establish that a miscarriage of justice had occurred and that his conviction based on his plea of guilty should be set aside. It was not necessary for the appellant to establish that, on the evidence, he was innocent or he should not have been convicted, having regard to the case law concerning new evidence in an appeal against conviction following a trial. If the appellant established that, on the evidence, his plea of guilty was not entered in an exercise of a free and voluntary choice, subject to the possible application of the proviso in s 14(2) of the Criminal Appeals Act, orders would ordinarily be made allowing the appeal, setting aside the plea of guilty, quashing the judgment of conviction and remitting the matter to the Magistrates Court for a new hearing.
Ground 1 of the appeal to this court has been made out.
Ground 2: the submissions of the parties
The appellant's submissions on ground 2 did not add materially to the assertions made in the ground.
Counsel for the respondent submitted:
(a)If this court concludes that ground 1 has been made out, then 'it would have been at least strongly preferable for her Honour to have … made a finding as to whether Senior Constable Francis told the appellant that ''if you plead not guilty, there is no bail'' and whether the statement amounted to an improper inducement'.
(b)However, her Honour's failure in those respects did not constitute an error of law; alternatively, no substantial miscarriage of justice has occurred.
(c)Even if the statement was made and involved an improper inducement, it does not necessarily follow that the appellant's plea of guilty was not the result of a free and voluntary choice or that the statement gave rise to a miscarriage of justice.
(d)Ultimately, it is a question of fact whether the appellant has established that the plea of guilty was not made in the exercise of a free and voluntary choice. The appellant must establish that fact on the balance of probabilities.
(e)Although the appellant maintained consistently that Senior Constable Francis made the statement in question and that the statement in question induced him to plead guilty, it remained open to her Honour to conclude, as she did, that:
(i)even if the relevant statement was made, her Honour was 'unable to conclude that the appellant was improperly induced to plead guilty or that the appellant was deprived of free choice as to whether or not to plead guilty' [55]; and
(ii)the appellant's plea of guilty was attributable to a genuine consciousness of guilt and was not a result of the relevant statement [57].
Ground 2: its merits
We are satisfied that Hill J was in error in failing to make findings of fact, having regard to the evidence before her, as to whether Senior Constable Francis told the appellant that 'if you plead not guilty, there is no bail' and, if so, whether the statement constituted an improper inducement to plead guilty.
Her Honour should have made those findings against the contingency that:
(a)this court might conclude on appeal that her Honour was wrong to apply the common law distinction between fresh and new evidence; and
(b)this court might conclude on appeal, contrary to her Honour's view, that if Senior Constable Francis made the statement in question then the statement constituted an improper inducement to plead guilty.
We are of the opinion, for the following reasons, that if Senior Constable Francis told the appellant, after he was arrested, that 'if you plead not guilty, there is no bail', then the statement was an improper inducement to plead guilty.
First, when he allegedly made the statement on 18 April 2018, Senior Constable Francis was a person in authority who was investigating a complaint that the appellant had breached the FVRO. Secondly, when he allegedly made the statement, Senior Constable Francis had arrested the appellant on suspicion that the appellant had breached the FVRO and consequently had committed an offence. Thirdly, the terms of the statement allegedly made by Senior Constable Francis on 18 April 2018 were, objectively, reasonably capable of operating as an inducement to the appellant to plead guilty when he appeared in the Magistrates Court later on 18 April 2018, whether the appellant believed he was guilty or not, to avoid being detained in custody pending a trial of the charged offence. Fourthly, to the knowledge of Senior Constable Francis, the statement allegedly made by him was wrong. In all of those circumstances, the statement, if made by Senior Constable Francis, was improper and constituted an improper inducement to plead guilty.
Further, we are of the opinion, for the following reasons, that if Senior Constable Francis told the appellant, after he was arrested, that 'if you plead not guilty, there is no bail' then, having regard to the findings of fact her Honour made and did not make, her Honour's conclusion that the appellant's plea of guilty was solely attributable to a genuine consciousness of guilt cannot be sustained.
First, whether the appellant was guilty of the charged offence depended, in part, upon the facts and circumstances of the interaction between the appellant, on the one hand, and the protected person, on the other, on 11 April 2018 in the Midland Magistrates Court registry. Also, whether the appellant was guilty depended, in part, upon the proper construction of the FVRO, including the exemption in Part B of the FVRO. Secondly, it is true that the appellant made admissions to the effect that he had approached the protected person on 11 April 2018 in the Midland Magistrates Court registry; he had made a 'drastic mistake' because he thought he could approach the protected person in that location; he had to plead guilty because 'I did approach them, but I plead guilty on the fact that I didn’t know'; and, when he approached the protected person on 11 April 2018 in the registry, he communicated with both the protected person and Ms Barnett by saying 'tell Maddie thanks a lot for going against me'. However, those admissions did not, of themselves, render the alleged statement by Senior Constable Francis irrelevant or of no effect in determining whether the improper inducement was operative when the appellant entered the plea. Thirdly, it was not necessary that the improper inducement be the sole or even the predominant cause of the appellant's entry of the plea of guilty. It was sufficient if the improper inducement was a material contributing cause of the plea. Fourthly, the notion of 'a genuine consciousness of guilt' was not apposite in circumstances where the appellant's guilt of the charged offence depended, in part, upon the proper construction of the FVRO, including the exemption in Part B of the FVRO, and, also, upon the application of the terms of the FVRO, properly construed, to the facts and circumstances of the relevant interaction between the appellant and the protected person. Fifthly, it was not in dispute that the appellant (who, at the material time, was aged 62) did not have a prior criminal record or any familiarity with the criminal justice system. Sixthly, it was not in dispute that the appellant did not receive advice from a lawyer after Senior Constable Francis allegedly made the statement and before the appellant entered the plea of guilty on 18 April 2018. Seventhly, her Honour had regard to the appellant's admissions in arriving at her conclusion that the appellant's plea was attributable to a genuine consciousness of guilt and was not the result of the alleged statement made by Senior Constable Francis. However, in her reasons at [55] ‑ [57], her Honour did not evaluate and did not take into account the appellant's evidence as to the circumstances in which the alleged statement by Senior Constable Francis was made or the circumstances (including the interval) between the alleged making of the statement and the entry of the plea. Having regard to all of those matters, it was not open to Hill J to conclude that, if Senior Constable Francis made the alleged statement, then the appellant's plea of guilty was solely attributable to a genuine consciousness of guilt.
We are satisfied that Hill J's approach to fact finding miscarried in relation to whether the improper inducement by Senior Constable Francis, if made, was a material contributing cause of the appellant's plea of guilty.
Ground 2 of the appeal to this court has been made out. We will consider later in these reasons whether no substantial miscarriage of justice has occurred.
Ground 3: the submissions of the parties
The appellant's submissions on ground 3 did not add materially to the assertions made in the ground.
Counsel for the respondent submitted:
(a)The FVRO, properly construed, prevented the appellant from communicating or attempting to communicate with, or approaching or remaining within 25 m of, the protected person unless, while engaging in the otherwise prohibited act, he was then participating in or attending court events in proceedings in which both the appellant and the protected person were parties or witnesses, or he was complying with any order or direction of the court.
(b)Hill J's conclusion that the exemption in Part B of the FVRO applied only to participation and attendance at 'a court event or hearing that is listed at a particular time' and that '[i]f it had been intended that the exemption was to apply more generally within the court building, the FVRO would have stated this' [74], especially in relation to approaching the protected person outside the hearing room, must be understood in the context of the issues being considered by her Honour in the appeal.
(c)It was not in dispute that the appellant walked towards the protected person and Ms Barnett while they were in the Midland Magistrates Court registry and that the appellant had made statements directed towards both of them (that is, the appellant approached and communicated with the protected person and Ms Barnett) about a person (namely, Madeline Brown or 'Maddie') who had been identified as a potential witness to be called by the protected person in the proceedings.
(d)It is 'arguably implicit' in her Honour's reasons that the preceding hearing on 11 April 2018 in the court room was the only 'event' in the proceedings that occurred that morning and therefore the appellant was not entitled to approach the protected person outside the court room because that would not involve the appellant participating in or attending that 'event'.
(e)Even if her Honour erred, as contended by ground 3, the appellant's conduct did not fall within the exemption in Part B of the FVRO in that:
(i)The appellant's attendance at and presence in the registry to obtain a form relevant to the proceedings was neither an 'event in the proceedings' nor participation in the earlier 'event' (the hearing in the court room having by that time concluded).
(ii)The appellant's conduct did not involve compliance with a direction or order of the court.
(iii)Further, even if the appellant's attendance and presence at the registry arguably did fall within the exemption in Part B, the acts the subject of the offence (namely, approaching and communicating with the protected person) fell outside the exemption in Part B because they did not involve the appellant participating in or attending an 'event' in the proceedings or the appellant complying with a direction or order of the court.
(iv)That is so even if participation in and attendance at an 'event' in court proceedings, within the exemption in Part B, extended to actions in the court building that were reasonably incidental to participation in and attendance at an 'event'.
(v)Further, even if, contrary to the respondent's submissions, the appellant was entitled, in all the circumstances, to approach the protected person, the appellant still committed the offence as the charge concerned both his approach and his communication with the protected person.
Counsel contended that ground 3 had not been made out; alternatively, even if ground 3 had been made out, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.
Ground 3: its merits
It is well-established that, in the context of contempt proceedings for an alleged breach of an injunction:
(a)The language of the injunction should be sufficiently precise to admit of the ready or convenient enforcement of the court's order: Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia (Qld Branch);[14] R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd.[15]
(b)The language of the injunction should not be ambiguous, uncertain or indefinite and the court's order granting the injunction must convey to the person bound by the injunction precisely what it is that he or she may or may not do: Abella v Anderson.[16]
(c)The court's order granting the injunction should be so expressed that 'the person to whom it is directed should be able, by reading it and without more, at once to know what it is that he must do, or refrain from doing, in order to comply with its terms': Commissioner of Water Resources (390).
(d)In general, a court will not punish a person for contempt of court, consequent upon the person having breached the injunction, if the terms of the order granting the injunction are unclear or ambiguous: Iberian Trust Ltd v Founders Trust and Investment Co;[17] Australian Consolidated Press Ltd v Morgan;[18] Federal Bank of the Middle East Ltd v Hadkinson;[19] Australian Securities and Investments Commission v Sigalla (No 4).[20]
(e)However, ordinarily, a court will punish a person for contempt of court, consequent upon the person having breached the injunction, if any lack of clarity or any ambiguity had no real risk of misleading the person bound by the order or if the lack of clarity or the ambiguity was not such that, on one reasonable view of the order, the person bound was not in breach: Australian Consolidated Press (516); Microsoft Corporation v Marks (No 1);[21] Kirkpatrick v Kotis;[22] Wyszynski v Bill;[23] Sigalla (No 4) [147].
[14] Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia (Qld Branch) [1988] 2 Qd R 385, 390 (McPherson J).
[15] R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59, 78 (Owen J; Ipp J relevantly agreeing).
[16] Abella v Anderson [1987] 2 Qd R 1, 4 (McPherson J).
[17] Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87, 95 ‑ 96 (Luxmoore J).
[18] Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 515 ‑ 516 (Owen J).
[19] Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695, 1705 (Mummery LJ; Pill LJ agreeing).
[20] Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; (2011) 80 NSWLR 113 [147] (White J).
[21] Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117, 143 (Lindgren J).
[22] Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 [54] ‑ [56] (Campbell J).
[23] Wyszynski v Bill [2005] NSWSC 110 [33] ‑ [36] (White J).
The principles we have summarised at [108] above are to be applied, by analogy, in construing a FVRO in the context of proceedings under s 61(1) of the Restraining Orders Act against a person who is bound by the FVRO and who has allegedly committed an offence against s 61(1) by breaching that order.[24]
[24] This appears to have been the approach adopted in Sturt v Ball [2013] WASC 343 and Horvath v Sharples [2018] WASC 315.
Ground 3 alleges, in effect, that Hill J erred in finding that the exemption in Part B of the FVRO did not entitle the appellant 'to approach the protected person outside the court hearing room but within the court building'. The ground does not refer to any entitlement of the appellant to communicate with the protected person.
Part A of the FVRO provided, relevantly, that the appellant must not 'except as set out in Part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text message or any other electronic means … [or] approach or remain within 25 metres of the Person Protected'.
The exemption in Part B provided, relevantly, that the appellant would not breach the orders in Part A if the appellant was to 'participate in and attend court events in proceedings in which the Person Protected and [the appellant] are parties or witnesses, and to comply with any order or direction of a Court'.
Hill J found that 'the FVRO did not mean that any communication by the appellant to the protected person within the court building or surrounding area fell within the exemption, nor did it entitle the appellant to approach the protected person outside the court hearing room' [74]. It is apparent from that passage and her Honour's reasons as a whole that her Honour found that the exemption in Part B did not entitle the appellant to approach or communicate with the protected person outside the court hearing room but within the court building.
Although ground 3 refers merely to 'approach' and does not include 'communicate', we will, having regard to the manner in which the respondent made his submissions to this court and to the appellant's status as a self-represented litigant, deal with ground 3 on the basis that it refers both to 'approach' and 'communicate'.
As we have mentioned, Part A of the FVRO relevantly stated that, except as set out in Part B, the appellant must not 'communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text message or any other electronic means' and must not 'approach or remain within 25 metres of the Person Protected'.
We are satisfied that the ordinary and natural meaning of the phrase 'approach or remain within 25 metres of the Person Protected' in Part A is that the qualification 'within 25 metres of the Person Protected' applies to 'approach' as well as 'remain'.
Part A of the FVRO directed the appellant, in essence, that he must not, except as set out in Part B:
(a)communicate with the protected person by any means whatsoever including SMS or text message or any other electronic means;
(b)attempt to communicate with the protected person by any means whatsoever including SMS or text message or any other electronic means;
(c)approach within 25 m of the protected person; or
(d)remain within 25 m of the protected person.
The meaning of the word 'communicate' depends upon and takes colour from the context in which it is used. It is plain that in Part A of the FVRO (having regard to the status of the FVRO as an order made under the Restraining Orders Act and the objects of the Act) the word 'communicate' includes, relevantly for present purposes, contacting, speaking with, writing to and interacting with the protected person.
There is no doubt that, on the facts admitted by the appellant, on 11 April 2018 in the Midland Magistrates Court registry the appellant communicated with both the protected person and Ms Barnett by saying 'tell Maddie thanks a lot for going against me'. The appellant therefore communicated with the protected person, on that occasion, within Part A of the FVRO.
The meaning of the word 'approach' also depends upon and takes colour from the context in which it is used. It is apparent that in Part A of the FVRO (having regard to the status of the FVRO as an order made under the Restraining Orders Act, the objects of the Act and the use of the word 'approach' as part of the phrase 'approach … within 25 metres of the Person Protected') the word 'approach' includes, relevantly for present purposes, the appellant intentionally moving from outside to inside a radius of 25 m from the protected person.
The facts asserted as part of the respondent's case and the facts admitted by the appellant reveal that, on 11 April 2018 in the Midland Magistrates Court registry, the appellant did not 'approach' the protected person by intentionally moving from outside to inside a radius of 25 m from the protected person. The respondent and the appellant accept that the appellant entered the registry before the protected person and Ms Barnett. It was the protected person and Ms Barnett who approached within 25 m of the appellant by entering the registry. The appellant did not approach within 25 m of the protected person, on that occasion, within Part A of the FVRO. At all material times, the appellant was within 25 m of the protected person as a result of the protected person and Ms Barnett having approached within 25 m of the appellant by entering the registry. That circumstance was brought about by the actions of the protected person and Ms Barnett and not by any action of the appellant.
As we have mentioned, an aspect of the prohibition in Part A of the FVRO is that, except as set out in Part B, the appellant must not 'remain' within 25 m of the protected person. The facts asserted as part of the respondent's case and the facts admitted by the appellant suggest that, on 11 April 2018 in the Midland Magistrates Court registry, the appellant did 'remain' within 25 m of the protected person by moving towards and speaking to the protected person and Ms Barnett. The appellant did not leave immediately when the protected person and Ms Barnett entered the registry. However, it is unnecessary to pursue this point because the prosecution notice charged the appellant with breaching the FVRO 'by approaching and communicating with the protected person'. The prosecution notice did not charge the appellant with breaching the FVRO by remaining within 25 m of the protected person.
We turn to consider whether the appellant's communication with the protected person in the Midland Magistrates Court registry was within the exemption in Part B of the FVRO.
Part B relevantly stated that the appellant would not breach the orders in Part A if the appellant were to 'participate in and attend court events in proceedings in which the Person Protected and [the appellant] are parties or witnesses, and to comply with any order or direction of a Court'.
The phrase 'to comply with any order or direction of a Court' may be put to one side because the appellant did not communicate with the protected person in the registry to comply with any order or direction of a Court.
On 11 April 2018, the appellant participated in and attended a hearing in the Midland Magistrates Court in proceedings in which the protected person and the appellant were parties, namely a hearing before a Magistrate in civil proceedings the appellant had commenced against the protected person.
The critical issue is whether the appellant communicated with the protected person in the registry while the appellant was '[participating] in and [attending] court events' in those proceedings, within the exemption in Part B.
We are satisfied that the phrase 'participate in and attend court events' in Part B (having regard to the FVRO as a whole, the status of the FVRO as an order made under the Restraining Orders Act and the objects of the Act) means participate in or attend 'court events'. It is not necessary that any conduct of the appellant that would otherwise constitute a breach of the orders in Part A have occurred while the appellant was participating in and attending 'court events'. That is apparent from the nature of the prohibitions in Part A. A person may physically attend a 'court event' without participating in the event and a person may participate in a 'court event' remotely by electronic means without physically attending. Also, as we have mentioned, the prohibitions in Part A include approaching within 25 m of the protected person and remaining within 25 m of the protected person. At all material times, including when the FVRO was made, it was obvious (or, at least, objectively in contemplation) that if it was necessary for the appellant and the protected person to attend a court hearing in which they were parties, then it would be likely (if not inevitable) that they would be within 25 m of each other after they had entered the court building and before the particular proceeding in which they were participating had actually begun. The proper construction of Part B is that the exemption is engaged in relation to the appellant 'approaching' or 'remaining' within 25 m where, relevantly, the appellant and the protected person are participating in or attending 'court events' in which they are parties.
The expression 'court events' in Part B is not defined in the FVRO or in the Restraining Orders Act. The ordinary and natural meaning of the word 'event' is a thing or an occasion that happens or takes place, especially a thing or an occasion of importance. See Macquarie Dictionary (Online Version). It is of significance that Part B refers to 'court events' and not to 'court hearings'. The notion of a 'court event' has a broader connotation than a 'court hearing'. The use of the word 'event' in conjunction with the word 'court', in the context of the FVRO as a whole, connotes an occasion that has been arranged by or with the court in relation to pending proceedings including, for example, a hearing in open court before a judge or magistrate, a court ordered or sponsored mediation before a judicial officer or a court appointment with a registrar.
In our opinion, a communication by the appellant to the protected person will be within the exemption in Part B if the communication occurs while they are participating in a 'court event'. That is, it will be permissible for the appellant to communicate with the protected person where the communication occurs during an occasion that has been arranged by or with the court in relation to pending proceedings including, for example, a hearing in open court, a court ordered or sponsored mediation or a court appointment. That is apparent from the nature of a 'court event', as we have explained it. In particular, at all material times, including when the FVRO was made, it was obvious (or, at least, objectively in contemplation) that if the appellant and the protected person attended a 'court event' in which they were parties, then it would be likely that some form of communication between them would be necessary during the court event, especially if they were self-represented. However, at no material time was it obvious or even objectively in contemplation that communication between the appellant and the protected person would be necessary before or after the 'court event'. Compare the position in relation to the prohibition against approaching within 25 m of the protected person or remaining within 25 m of the protected person. See [128] above.
In the present case, we are of the opinion, for the reasons we have given, that Hill J was in error in finding that the appellant had breached the FVRO by 'approaching' the protected person in the registry.
However, we are of the opinion, for the reasons we have given, that her Honour was correct in finding that the appellant breached the FVRO by 'communicating' with the protected person in the registry and, also, in concluding that the exemption in Part B did not apply to that communication.
Ground 3 of the appeal to this court, as developed at the hearing of the appeal before this court, has been made out in part. We will consider later in these reasons whether no substantial miscarriage of justice has occurred.
Ground 4: the submissions of the parties
The appellant's submissions on ground 4 did not add materially to the assertions made in the ground.
Counsel for the respondent submitted:
(a)Hill J's conclusion that in circumstances where the appellant carried out the act that constituted the offence in the court building, but not during the course of any court hearing, s 62(1)(ca) of the Restraining Orders Act does not constitute a defence [86], is consistent with the text, context and purpose of s 62(1)(ca) and the Act as a whole.
(b)The principal mischief to which the defence in s 62(1)(ca) is directed is potential criminal responsibility arising where both the person restrained by an order and the protected person attend a hearing and that attendance may result in a degree of physical proximity between them that may not be permitted by the terms of the order.
(c)Her Honour's construction of s 62(1)(ca) addressed that principal mischief, while otherwise recognising and giving effect to the broader protective purposes of the Act and avoiding interference with the proper administration of justice.
(d)Even if her Honour erred, as contended by ground 4, the appellant's conduct did not fall within the defence conferred by s 62(1)(ca) in that:
(i)The appellant's attendance at and presence in the registry to obtain a form relevant to the proceedings was not 'attending at a court hearing' (the hearing in the court room having by that time concluded). The appellant attended at the registry to obtain a document relating to his civil action against the protected person. Although the appellant's attendance and presence at the registry may have been related to 'proceedings … under any other written law', within s 62(1)(ca), the appellant was no longer 'attending' a court hearing in proceedings under a written law.
(ii)Further, even if the appellant's attendance and presence at the registry arguably did fall within the defence, the acts the subject of the offence (namely, approaching and communicating with the protected person) fell outside the defence because they did not involve the appellant 'attending a court hearing'.
(iii)That is so even if the phrase 'attending a court hearing' in s 62(1)(ca), properly construed, extends to actions in the court building that are reasonably incidental to attendance at a court hearing.
Counsel contended that ground 4 had not been made out; alternatively, even if ground 4 had been made out, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.
Ground 4: its merits
The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority;[25] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[26] Travelex Ltd v Federal Commissioner of Taxation;[27] SZTAL v Minister for Immigration and Border Protection.[28]
[25] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).
[26] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
[27] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).
[28] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.[29]
[29] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[30] Alphapharm Pty Ltd v H Lundbeck A/S.[31]
[30] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).
[31] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross.[32] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.[33]
[32] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).
[33] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
A section in a statute which specifically states the purposes or objects of the statute is relevant to the proper construction of the statute. See Tickner v Bropho;[34] Russo v Aiello.[35] It is necessary to consider the method by which Parliament has implemented the specified purposes or objects. See Municipal Officers' Association of Australia v Lancaster.[36] The purposes or objects must be read and understood in the context of the statute as a whole. See IW v The City of Perth.[37]
[34] Tickner v Bropho (1993) 40 FCR 183, 191 ‑ 192 (Black CJ), 207 ‑ 209 (Lockhart J), 215 (French J).
[35] Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 [5] (Gleeson CJ).
[36] Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129, 152 (Evatt & Northrop JJ).
[37] IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12 (Brennan CJ & McHugh J).
By s 29 of the Interpretation Act 1984 (WA), every section of an Act takes effect as a substantive enactment without introductory words. This provision was included in the Interpretation Act to avoid the repetition of enacting words before each section. See Smalley v Motor Accident Authority of New South Wales.[38] A section in a statute which specifically states the purposes or objects of the statute therefore, of itself, takes effect as a substantive enactment.
[38] Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; (2013) 85 NSWLR 580 [43] (Leeming JA; Meagher & Barrett JJA agreeing).
Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking.[39]
[39] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).
The view has been expressed that a section in a statute which specifically states the purposes or objects of the statute cannot cut down the meaning of another provision of the statute if that meaning is, in its textual and contextual surroundings, plain and unambiguous. See, for example, Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd;[40] S v Australian Crime Commission;[41] Director of Public Prosecutions v Mattiuzzo.[42] This view has been based primarily on similar observations in Wacando v Commonwealth[43] in relation to the proper construction of a preamble to a statute.
[40] Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 78 (Cole JA).
[41] S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 [22] (Mansfield J).
[42] Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 252 FLR 108 [14] (Riley CJ).
[43] Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 15 ‑ 16 (Gibbs CJ), 23 (Mason J).
More recently, in Lynn v The State of New South Wales,[44] Beazley P stated that the object provisions of a statute cannot control clear statutory language. Her Honour then elaborated:
Further, there are many statutes where the objects of the Act are directed to disparate ends and are not necessarily harmonious. Nonetheless, as Gleeson CJ observed in Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5], the statement of legislative objects is 'not an exercise in apologetics', rather, it gives practical content to terms such as 'reasonable', 'justification' and 'satisfactory'. Likewise, the long title of an Act may be referred to as an aid to construction of the provisions of the Act: Pitt, Son & Badgery Ltd v Municipal Council of Sydney (1908) 24 WN (NSW) 203 at 204; Birch v Allen (1942) 65 CLR 621.
[44] Lynn v The State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 [54] (Beazley P; Gleeson JA relevantly agreeing).
In Beckwith v The Queen,[45] Gibbs J made these observations in relation to the proper approach to the construction of penal provisions in a statute:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams ((1935) 53 CLR 563, at pp. 567 ‑ 568); Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort.
See also Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd;[46] Waugh v Kippen;[47] Newcastle City Council v GIO General Ltd;[48] Re Day (No 2);[49] Aubrey v The Queen.[50]
[45] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, 576.
[46] Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129, 145 (Mason, Deane & Dawson JJ).
[47] Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson & Dawson JJ).
[48] Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 102 ‑ 103 (Toohey, Gaudron & Gummow JJ).
[49] Re Day (No 2) [2017] HCA 14; (2017) 263 CLR 201 [276] (Nettle & Gordon JJ).
[50] Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305 [39] (Kiefel CJ, Keane, Nettle & Edelman JJ).
The existence of a penal provision in a statute is part of its context. See Alcan (NT) Alumina [57].
Section 61(1) of the Restraining Orders Act provides, relevantly, that a person who is bound by an FVRO and who breaches that order commits an offence.
By s 62(1)(ca), it is a defence to a charge under s 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was 'attending a court hearing in proceedings under this Act or under any other written law'.
The term 'court hearing' in s 62(1)(ca) is not defined in the Restraining Orders Act. The ordinary and natural meaning of the term 'court hearing' is a hearing ordered or listed by a court before a judicial officer in pending proceedings.
It is unnecessary, in the present case, to consider whether the appellant had a defence under s 62(1)(ca) in relation to his act in 'approaching' the protected person because we have concluded, in considering ground 3, that the appellant did not approach the protected person, on the occasion in question, within the meaning of Part A of the FVRO.
As to the appellant's 'communication' with the protected person in the Midland Magistrates Court registry, we are satisfied that 'in carrying out the act', within s 62(1)(ca) (that is, in making the communication), the appellant was not 'attending a court hearing' in any proceedings because the hearing before the Magistrate on 11 April 2018 had been completed before the appellant, the protected person and Ms Barnett entered the registry and the appellant made the communication. The appellant's communication to the protected person was not made while the appellant was attending that court hearing.
Ground 4 of the appeal to this court has not been made out.
Ground 5, the proviso and the outcome of the appeal: the submissions of the parties
The appellant's submissions on ground 5 did not add materially to the assertions made in the ground. Understandably, the appellant's submissions did not engage meaningfully with the proviso or the outcome of the appeal.
Counsel for the respondent submitted that Hill J was not obliged to consider whether there was a miscarriage of justice given her Honour's findings to the effect that the appellant was not induced to plead guilty as a result of anything said by Senior Constable Francis; the appellant's plea was attributable to a genuine consciousness of guilt; and, in any event, the appellant did not have a defence to the charge.
Counsel submitted, in the alternative, that even if her Honour had erred as alleged in ground 5, no substantial miscarriage of justice has occurred.
The respondent's primary contention was that the appeal should be dismissed.
However, at the hearing of the appeal, counsel for the respondent conceded (properly, in our opinion), in response to questions from the court, that if this court concluded that, on the facts alleged by the respondent and admitted by the appellant, the appellant could not in law have been guilty of at least part of the charged offence (in particular, that part of the charge which alleged that the appellant breached the FVRO by 'approaching' the protected person), then this court should allow the appeal, set aside the plea of guilty, quash the judgment of conviction and remit the matter to the Magistrates Court for a new hearing. Counsel also accepted that, in those circumstances, if the respondent decided, in the exercise of the prosecutorial discretion, to proceed again in the Magistrates Court, then it would be necessary for the respondent to apply to the Magistrate for leave to amend the charge by deleting the allegation that the appellant had breached the FVRO by 'approaching' the protected person.
Ground 5 and the proviso: its merits
The appeal before Hill J was governed by div 2 of pt 2 of the Criminal Appeals Act. Division 2 comprises s 7 to s 15.
As we have mentioned, s 8(1) of the Criminal Appeals Act provides, relevantly and in effect, that an appeal against conviction may be made under div 2 of pt 2 of the Act on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(b)that there has been a miscarriage of justice.
Section 14(1) of the Criminal Appeals Act provides, relevantly, that in deciding an appeal, the Supreme Court may do one or more of the following:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction …;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court ‑
(i) as to how or by whom it is to be constituted;
(ii) as to how it must deal with the case;
(f)…
(g)…
(h)…
(i)make any other order it thinks fit.
By s 14(2) of the Criminal Appeals Act, despite s 14(1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has occurred'.
The appeal before this court is governed by div 3 of pt 2 of the Criminal Appeals Act. Division 3 comprises s 16 to s 19.
By s 16(2) of the Criminal Appeals Act, a party to an appeal under div 2 of pt 2 of the Criminal Appeals Act 'who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court sitting in its General Division' that:
(a)refuses leave to appeal; or
(b) dismisses or decides an appeal,
may appeal to this court against the decision.
By s 18, read with s 14(1), of the Criminal Appeals Act, in deciding the appeal under div 3, this court may, relevantly:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the Supreme Court sitting in its General Division and any order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the Supreme Court sitting in its General Division;
(e)make any other order it thinks fit.
By s 18, read with s 14(2), of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has occurred'.
In the present case:
(a)grounds 1 and 2 of the appeal to this court have been made out; and
(b)ground 3 of the appeal to this court, as developed at the hearing of the appeal before this court, has been made out in part.
We consider that a miscarriage of justice occurred before Hill J in that:
(a)her Honour did not apply the correct legal test in relation to the evidence adduced by the appellant in the appeal before her Honour;
(b)her Honour failed to make findings of fact, having regard to the evidence before her, as to whether Senior Constable Francis told the appellant that 'if you plead not guilty, there is no bail';
(c)her Honour erred in failing to find that, in all of the circumstances, if Senior Constable Francis made that statement, the statement was improper and constituted an improper inducement to plead guilty;
(d)her Honour's conclusion that, even if Senior Constable Francis made the statement to the appellant, the appellant's plea of guilty was solely attributable to a genuine consciousness of guilt, cannot be sustained;
(e)her Honour's approach to fact finding miscarried in relation to whether the improper inducement by Senior Constable Francis, if made, was a material contributing cause of the appellant's plea of guilty; and
(f)her Honour was in error in finding that the appellant had breached the FVRO by 'approaching' the protected person in the Midland Magistrates Court registry.
However, as we have mentioned, we are of the opinion that Hill J was correct in finding that the appellant breached the FVRO by 'communicating' with the protected person in the registry and, also, in concluding that the exemption in Part B did not apply to that communication.
The charge alleged against the appellant in the prosecution notice was that the appellant had breached the FVRO 'by approaching and communicating with the protected person'. The charge alleged, in essence, two breaches. First, the appellant had approached the protected person. Secondly, the appellant had communicated with the protected person. The appellant's plea of guilty before the Magistrate related to both aspects of the charge and the Magistrate sentenced the appellant on that basis.
Even if Senior Constable Francis made the relevant statement to the appellant and even if the appellant established, on the evidence, that his plea of guilty was not entered in an exercise of a free and voluntary choice, there is no doubt that, on the facts admitted by the appellant, the appellant communicated with the protected person on 11 April 2018 in the Midland Magistrates Court registry, the communication breached Part A of the FVRO and the communication was not within the exemption in Part B. In those circumstances, there is no doubt that the appellant was guilty of that part of the charge in the prosecution notice which alleged that the appellant had breached the FVRO 'by … communicating with the protected person'.
However, we do not consider that no substantial miscarriage of justice has occurred. We are of that opinion for the following reasons.
First, as we have explained, the appellant did not breach the FVRO by 'approaching' the protected person in the Midland Magistrates Court registry. On the facts alleged by the respondent and admitted by the appellant, the appellant could not in law have been guilty of that part of the charge in the prosecution notice which alleged that the appellant breached the FVRO 'by approaching … the protected person'.
Secondly, as we have mentioned, the appellant's plea of guilty before the Magistrate related to both aspects of the charge and the Magistrate sentenced the appellant on that basis. If the appellant was guilty merely of one aspect of the charge, that circumstance had a material impact on the sentencing proceedings in that the circumstance was reasonably capable of affecting the actual sentence imposed by the Magistrate and whether a spent conviction order should be made.
We are satisfied that Hill J erred in failing to consider whether, having regard to the matters we have set out at [174] ‑ [175] above, there was a miscarriage of justice which required the appellant's plea of guilty to be set aside. Ground 5 of the appeal to this court has, to that extent, been made out.
For the reasons we have given, the proviso in s 14(2) of the Criminal Appeals Act should not be applied.
The appellant's applications in the appeal
In his appeal to this court, the appellant filed two applications in an appeal for leave to adduce additional evidence. One application was filed on 11 August 2020 and the other on 17 August 2020. The proposed additional evidence the subject of each application did not materially advance the appellant's case. Both applications should be dismissed.
The outcome of the appeal
We would grant leave to appeal on each of the grounds of appeal to this court.
The appeal should be allowed. The order made by Hill J on 13 August 2019, dismissing the appellant's appeal to the Supreme Court in its General Division, and the order for costs made by her Honour on that date, should be set aside.
The appellant's appeal to the Supreme Court in its General Division should be allowed, the appellant's plea of guilty in the Magistrates Court should be set aside, the judgment of conviction entered and the order for costs made in the Magistrates Court should be quashed and the matter should be remitted to the Magistrates Court for a new hearing.
If the respondent decides, in the exercise of the prosecutorial discretion, to proceed again in the Magistrates Court, it will be necessary for the respondent to apply to the Magistrate for leave to amend the charge by deleting the allegation that the appellant breached the FVRO by 'approaching' the protected person.
The parties should be heard in relation to any other orders this court should make concerning costs in the previous proceedings in the Magistrates Court and in the appeal to the Supreme Court in its General Division.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
27 JULY 2021
- AGLC
- Tsang v Francis [2021] WASCA 131
- Case
- [2021] WASCA 131
- Decision Date
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