Tsang v Francis
[2019] WASC 290
•13 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: TSANG -v- FRANCIS [2019] WASC 290
CORAM: HILL J
HEARD: 1 JULY 2019
DELIVERED : 13 AUGUST 2019
FILE NO/S: SJA 1041 of 2018
BETWEEN: DAVID KENNETH TSANG
Appellant
AND
JARROD RUSSELL FRANCIS
Respondent
ON APPEAL FROM:
For File No: SJA 1041 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE K TAVENER
File Number : MI 5177 of 2018
Catchwords:
Criminal law - Appeal against conviction - Fresh evidence - Whether fresh evidence should be accepted - Whether miscarriage of justice - Charge of breaching restraining order by approaching protected person in registry of court - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr J F Bennett |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
DPJB v The State of Western Australia [2010] WASCA 12
Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496
Horvath v Sharples [2018] WASC 315
KMT v The State of Western Australia [No 2] [2018] WASCA 49
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vulin v Kirkman [2012] WASC 331
HILL J:
The appellant was convicted on 18 April 2018 after pleading guilty to one count of breach of an interim Family Violence Restraining Order (FVRO) in relation to an incident that occurred on 11 April 2018. The sentence imposed on the appellant was a conditional release order of $1,000 for a period of nine months. He was also ordered to pay costs of $100.
The appellant seeks leave to appeal against this conviction.
This appeal has had a relatively long history. Much of this arises from the appellant's issue of subpoenas and freedom of information requests to various government departments. The appellant sought to gather video footage and documents surrounding the incident which gave rise to the charge, the events which occurred immediately after the incident, the circumstances surrounding his arrest and charge, and various matters concerning the misconduct restraining order (MRO) that the applicant had against the protected person at the time of the incident. I do not propose to deal with the history of these requests in these reasons. It is sufficient to say that it is most unfortunate that there were significant delays in responding to the appellant's requests. The delay has compounded the sense of injustice that the appellant clearly feels in the way that he has been dealt with and in his interaction with the justice system.
Ultimately, however, many of these matters are not relevant to the issue that I am required to consider on the appeal. The question before me is whether the appellant's conviction after a plea of guilty ought to be set aside.
Notice of Appeal and Leave to Appeal
The appellant filed his notice of appeal on 7 May 2018 which was brought within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
Under the notice of appeal dated 7 May 2018, there is one ground of appeal, namely that: it was a 'Miscarriage of justice'. On 2 August 2018, Archer J ordered that the notice of appeal be amended to include as a particular that '[the appellant's] plea of guilty should be set aside, as it was obtained by intimidation and inducement.'
The appellant requires leave to appeal.[2] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[3] This means that the ground must have a rational and logical prospect of succeeding.[4]
[2] Criminal Appeals Act 2004 (WA), s 9(1).
[3] Criminal Appeals Act 2004 (WA), s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Factual Background
The appellant was charged by the respondent on 18 April 2018. The charge alleged that on 11 April 2012 at Midland, the appellant 'being bound by FVRO number #201800001, breached the order by approaching and communicating with the protected person.'
The appellant appeared before the learned magistrate at 12:05 pm on Wednesday 18 April 2018. The transcript records the following exchange taking place between the appellant and the learned magistrate:[5]
[5] ts 2 - 3.
HIS HONOUR: Okay. Mr Tsang, I've seen you before, haven't we?
ACCUSED: You have seen me. You saw me on 11 April. I – with the – a case against (indistinct) $34,000, sir. And I asked you what form do I require, remember? And you said form 20, and I went down the stairs. Actually, I went across the hallway to get the form.
HIS HONOUR: Okay. Yes, yes, yes.
ACCUSED: Yes. And I've made the drastic mistake because I thought that I could talk to her in the court, but I thought I did - - -
HIS HONOUR: You can be present.
ACCUSED: Right. But I thought, well - - -
HIS HONOUR: But you can't talk.
ACCUSED: In – and when I went to – I went to the police station to report it. Right. And as I reported it, them two came in behind me. Right. And the big one that had already been goading me said, 'I've got photos of you. I've got this of you'. Right. And that really sort of set me off, if you know what I mean. And I felt threatened by it, but what I'm saying to you, sir, is this. I went into that court – I went into that police station, and I asked why this woman was allowed to follow me because she was given a misconduct restraining order on 5 February by a judge in Midland Court, and they can't – they couldn't find her because she went into hiding. Now, if that had been served on her, she would have broken the law then by following me into the Registrar's office. So I feel that, you know, it's (indistinct) and when the police lady said to me, 'You can go home, right, because you haven't broken the law', she – and the – even the policewoman didn't know. Right.
HIS HONOUR: Okay. Okay. Just stop there – it's a simple – at this stage - - -
ACCUSED: Right.
HIS HONOUR: I just want to know what you're doing about the charge.
ACCUSED: What am I doing?
HIS HONOUR: Yes.
ACCUSED: I've pleaded guilty, sir. I've had to because I did approach them, but I plead guilty on the fact that I didn't know.
HIS HONOUR: I'm going to read the charge to you.
ACCUSED: Right.
HIS HONOUR: And then you can plead guilty if you want.
ACCUSED: Okay. Yes.
HIS HONOUR: 11 April 2018 at Midland, bound by a violence order, breached that order by approaching and communicating with a protected person, and to that charge, you plead - - -
ACCUSED: Guilty.
Following the entry of the plea of guilty, the learned magistrate asked the prosecutor to read the statement of facts.
The statement of facts presented to the learned magistrate was in the following terms:[6]
Order was taken out, sir, serve[d] on 8 January this year. Two-year order. Communication is not allowed unless in court proceedings. 11.15 at this courthouse, participating in some court proceedings. When the court proceedings (indistinct) he entered the main Registrar's office. The complainant and her associate walked in behind. The associate made a comment to the accused about having photos of him which made him angry. Turned around, walked back towards them, made a comment about another witness to her, and approaching and communicating with the complainant is not complying with the terms of the order, and he says: When interviewed, I thought I could talk to her in the courthouse. I made a genuine mistake.
[6] ts 3.
After hearing the statement of facts, the learned magistrate asked the appellant whether he admitted the history of the matter to which the appellant responded 'yes'.
Appeal against Conviction after a Guilty Plea
The appellant is able to appeal against his conviction even though the conviction was entered after a plea of guilty.[7]
[7] Criminal Appeals Act 2004 (WA), s 8(2).
The principles concerning an appeal against a conviction entered after a plea of guilty are well established. The following principles were outlined in Lawson v The State of Western Australia [No 2]:[8]
[8] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] - [20].
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence.
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner, a person may plead guilty 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 or she 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 of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.
It is clear from these principles that, even if the appellant were to establish that, in fact, he was not guilty of the offence, that, in itself, would be insufficient to demonstrate a miscarriage of justice arising from his conviction. (footnotes omitted)
If it appears that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt, it cannot be accepted and the court is obliged to enter a plea of not guilty.[9]
[9] Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.
The key question for the court is whether the appellant's plea of guilty was a free and voluntary choice.[10]
[10] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 143.
The Appellant's ground of appeal relies on the third category outlined above; namely that his guilty plea was obtained by improper inducement and intimidation.[11] During the course of submissions, the respondent's counsel conceded, quite properly in my view, it was arguable that the second category may also be open although the respondent denied that this had been made out. For this reason, I have also considered in my reasons whether, on the admitted facts, the appellant could not, in law, have been guilty of the offence.
[11] Lawson v The State of Western Australia [19].
Legal Principles: Improper Inducement and Intimidation
The use of improper means to persuade an accused person to plead guilty can hinder or prevent the exercise of a free choice by the appellant in deciding whether to plead guilty or not guilty.[12] However, ultimately, the issue is not whether the respondent acted improperly but whether the appellant's pleas were made voluntarily.
[12] Meissner v The Queen, 159.
In Meissner v The Queen,[13] Brennan, Toohey and McHugh JJ commented:
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.
…
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.
[13] Meissner v The Queen, 143.
Additional factors that may be relevant in considering whether a plea of guilty was the exercise of a free and voluntary choice are whether:
(a)the plea was attributable to a genuine consciousness of guilt;[14]
(b)the decision to plead guilty was made quickly and without appropriate time for proper reflection;[15] and
(c)the appellant was unrepresented or represented by counsel at the time the plea was entered.[16]
[14] R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310 [40].
[15] R v Wilkes [50].
[16] R v Wilkes [48].
Application to adduce additional evidence
On 21 February 2019, the appellant filed an application to adduce additional evidence on the appeal. The application was made pursuant to the Criminal Appeals Act 2004 (WA) s 40(1)(d).
The appellant sought leave to adduce a lengthy affidavit of the appellant filed on 21 February 2019. The additional evidence covered a wide range of matters, many of which are not relevant to the issues on this appeal. The respondent filed two affidavits which were sought to be relied upon in the event that I gave leave to the appellant to adduce further evidence.[17]
[17] Affidavit of Jarrod Russell Francis filed 29 March 2019; Affidavit of Remington Dan De Montereau filed 29 March 2019.
At the hearing of the appeal, I ruled that before determining the application for leave to adduce further evidence I would hear further evidence from both the appellant and the respondent limited to two matters. First, the circumstances of the appellant's arrest and what occurred prior to him appearing in court on 18 April 2019, which was relevant to whether the appellant was induced to plead guilty due to statements made to him. Second, the events on 11 April 2019, which was relevant to whether the appellant should have been convicted of the offence and whether a miscarriage of justice has occurred. Both parties had the opportunity to cross‑examine the witnesses for the other party.
After the hearing of the appeal, the appellant sought to adduce further evidence by emailing various documents to my associate. This evidence included excerpts of witness statements of the protected person and her associate, as well as steps the appellant has taken following the hearing of the appeal in relation to the evidence of a witness at the hearing before me.
I have not considered these additional materials in reaching my decision. This is for the following reasons. First, the appellant did not seek leave to file or adduce any further evidence at the conclusion of the hearing of the appeal. The appellant had already received a number of extensions of time to file any application to adduce additional evidence. The original order of Strk AJ on 29 November 2018 required any additional evidence to be filed by 4.00 pm on Friday 21 December 2018. The appellant received two extensions of time from Strk AJ and ultimately the evidence was required to be filed by 22 February 2019. In my view, the appellant had ample opportunity to put before the court any materials which he considered to be relevant to the appeal and no further extension ought to be granted. Second, the steps the appellant has taken following the hearing of the appeal in relation to any evidence given by any witness is not relevant to my consideration of the evidence or the issues in this appeal. Third, the appellant only sought to put before me excerpts of the witness statements and not the complete statements. This has the potential to mislead the court as to the nature of the evidence of these witnesses.
The burden of demonstrating that the conviction should be set aside because a miscarriage of justice has occurred is on the appellant. In relation to the question of whether his plea was obtained by inducement or intimidation, the appellant must establish these circumstances on the balance of probabilities.[18]
[18] Vulin v Kirkman [2012] WASC 331 [23] referring to Glover v Reyne[2001] WASCA 305; (2001) 124 A Crim R 496 [57].
The evidence of the appellant
The evidence-in-chief given by the appellant comprised his affidavit filed 21 February 2019 which annexed a significant number of documents.
The affidavit annexes a copy of the FVRO against the appellant.[19] The FVRO was issued on 3 January 2018 as an interim order against the appellant. The FVRO required him not to '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, … approach or remain within 25 metres of the Person Protected'. Part B relevantly provided that the appellant would not breach the order if he was to 'participate in and attend court events in proceedings in which the Person Protected and you are parties or witnesses, and to comply with any order or direction of a Court.'
[19] Affidavit of David Kenneth Tsang filed 21 February 2019, p 25. Page numbers refer to those in red at the top of each page.
It appears from the attachments to the affidavit that the appellant objected to the interim FVRO being granted against him and the matter was set down for hearing. The summons served on the appellant giving notice of the hearing stated that 'the interim order which has been served on you remains in force'.[20]
[20] Affidavit of David Kenneth Tsang filed 21 February 2019, p 26.
In his affidavit, the defendant deposes to, among other things, the following in respect of the events on 11 April 2018:
(a)On 6 February 2018, the appellant obtained a MRO against the protected person.[21] The appellant was informed that MRO was served on 1 March 2018.[22]
(b)On 11 April 2018, the appellant arrived at the Midland Magistrate's Court to attend a court hearing in civil proceedings commenced by the appellant against the protected person.[23] Prior to the matter being called, he sat in the waiting room. The protected person and an associate of hers arrived after the appellant and sat metres away from him.[24] The appellant then left the waiting room.[25]
(c)After the court hearing had concluded, the appellant went into the court registry to obtain a court form and got a ticket from the machine. The protected person and her associate followed the appellant into the registry. The associate shouted at the appellant 'we've got pictures of you on our phones - watch out'.[26]
(d)The appellant then approached the associate who was standing in front of the protected person. A photograph, obtained by the appellant from the Midland Magistrate's court, shows the appellant close to the associate of the protected person. The associate has her finger raised at him.[27] The appellant deposed that the associate 'started abusing me after I told both of them don't threaten me and tell Maddy thanks for going against me'.[28]
(e)The appellant then left the Midland Magistrate's Court and attended the Midland police station to make a complaint about the protected person breaching the MRO that he had obtained against her.[29] Shortly after his arrival at the Midland police station, the protected person and her associate arrived to make a complaint about the appellant.[30]
(f)The appellant deposed that after the arrival of the protected person and her associate, he was told by the officers to take a seat. The police spoke to the protected person and her associate. He was then told by the officers at the Midland police station that he had done nothing wrong 'as you can speak in the court house' and was told to go home.[31]
(g)The appellant deposed that '[he] was arrested allegedly on the grounds that [his] MRO on the [protected person] had not been served and was not registered on the police database.'[32]
[21] Affidavit of David Kenneth Tsang filed 21 February 2019, p 36.
[22] Affidavit of David Kenneth Tsang filed 21 February 2019, p 38.
[23] Affidavit of David Kenneth Tsang filed 21 February 2019, p 5.
[24] Affidavit of David Kenneth Tsang filed 21 February 2019, p 42.
[25] Affidavit of David Kenneth Tsang filed 21 February 2019, p 43 and 44.
[26] Affidavit of David Kenneth Tsang filed 21 February 2019, p 41.
[27] Affidavit of David Kenneth Tsang filed 21 February 2019, p 42.
[28] Affidavit of David Kenneth Tsang filed 21 February 2019, p 42.
[29] Affidavit of David Kenneth Tsang filed 21 February 2019, p 5.
[30] Affidavit of David Kenneth Tsang filed 21 February 2019, p 5.
[31] Affidavit of David Kenneth Tsang filed 21 February 2019, p 6.
[32] Affidavit of David Kenneth Tsang filed 21 February 2019, p 5.
In cross‑examination, the appellant gave the following evidence:
(a)On 11 April 2018, he understood that there was a restraining order that had been taken out by the protected person against him.[33]
(b)He walked towards [the associate and the protected person] because they threatened him.[34]
(c)In the registry of the Midland court, he approached the associate of the protected person and spoke words which were directed to both the associate and the protected person.[35]
[33] ts 97.
[34] ts 97.
[35] ts 108.
In respect of the appellant's arrest on 18 April 2019, the appellant's evidence‑in‑chief was as follows:
(a)On the morning of 18 April 2019, his gate bell rang. He saw that two police officers were at his gate. He walked to the gate and Senior Constable Jarrod Francis said that they had come to arrest him for a breach of 'an interim VRO' [Violence Restraining Order] taken out by the protected person.[36]
[36] Affidavit of David Kenneth Tsang filed 21 February 2019, p 7.
(b)The appellant told them that the police failed to deal with his complaint against the protected person and that he had been told to go home as he had done nothing wrong.[37]
[37] Affidavit of David Kenneth Tsang filed 21 February 2019, p 7.
(c)The appellant deposed that at his house 'Francis also told me I must warn you that if you plead not guilty there is no bail'.[38]
[38] Affidavit of David Kenneth Tsang filed 21 February 2019, p 7.
(d)The appellant was then taken to Midland police station where he was strip‑searched, placed in a cell and then interviewed. The appellant's evidence was that: [39]
[T]hey interviewed me and, your Honour, I did not lie. I did not tell one lie, Ma'am. I told them I accept I walked towards those people. I accepted that. I told the judge, 'Your Honour, if I've done anything, I made the mistake'.
(e)He deposed that he was informed there was no duty lawyer there and that he responded 'I don't need a lawyer because I've done nothing wrong'.[40]
(f)The appellant gave evidence that the police were concerned about getting him into court before 1.00 pm because: [41]
[H]e knew that if I was not in court probably by 1 o'clock, I was going to jail that day, because the judge would've finished and he couldn't have got me before a judge. And, don't forget, there was no bail, and if I pleaded not guilty, there was no bail.
…
And then he's talking to me and Remington is talking to me, and they're explaining to me what's going to happen to me in court and I realised then, you know what, I'm not going home today. If I don't say I'm guilty, I'm not going home today, but I said I'm guilty, because, as I said in my statement, your Honour, right – as I said, I did walk towards those people. I have never lied about that. I did walk towards them, but they had no right to be where I was.
[39] ts 77.
[40] Affidavit of David Kenneth Tsang filed 21 February 2019, p 7.
[41] ts 80 ‑ 81.
In cross‑examination, the appellant gave the following evidence.
(a)He was not aware of what bail was but believed that if he did not plead guilty that day he was going to prison.[42]
(b)He pleaded guilty: [43]
[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.
(c)He then gave evidence that he pleaded guilty because he was petrified he wasn't going to get bail.[44]
The evidence of Jarrod Russell Francis
[42] ts 90.
[43] ts 94 ‑ 95.
[44] ts 95.
The evidence‑in‑chief of Senior Constable Francis comprised an affidavit filed 29 March 2019.
In his affidavit, Senior Constable Francis deposed to the circumstances surrounding the arrest of the appellant on 18 April 2019. His evidence was as follows:
(a)He did not recall many specifics about the arrest although he had a general recollection of getting the file in the morning when he started work, going to the appellant's house to arrest him, taking him back to Midland Police Station, interviewing him, and then charging him.[45]
(b)He attended the appellant's house with Constable De Montereau. As the senior officer, he took the lead.[46]
(c)On arrival at the appellant's house, he knocked on the door and when the appellant answered, explained why they were there. He arrested the appellant under suspicion of breaching a FVRO, cautioned him and gave him his arrested suspect's rights.[47]
(d)The appellant was then taken to Midland police station. On arrival, the appellant was taken to lock up and left with a custody officer.[48] He was unaware of what type of search was performed on the appellant but if he was placed in a cell, a strip search was standard practice.[49]
(e)He didn't recall the specifics of the interview but believed that he followed his standard practice.[50] Following the interview, he spoke to his supervisor. After this, he decided to charge the appellant.[51]
(f)While he did not recall what he said to the appellant when he charged him, he knew that 'I told him that there is enough evidence to charge him so he would be charged and his bail would be refused'.[52]
(g)He further deposed that, while he did not have a specific recollection, his usual practice was to explain the process. On this basis, he believed that he told the appellant that he was being remanded, that he was going straight to court and that he was not able to give him bail due to the nature of the offence.[53]
[45] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 7.
[46] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 9.
[47] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 11.
[48] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 14.
[49] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 15.
[50] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 18.
[51] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 21.
[52] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 22.
[53] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 23.
In response to the allegation that he told the appellant that 'if he pleaded not guilty there is no bail', Senior Constable Francis deposed that: [54]
I definitely did not say that to [the appellant]. It would be a ridiculous thing to say. You cannot induce someone to plead guilty.
and that: [55]
I think I told him 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.
[54] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 38.
[55] Affidavit of Jarrod Russell Francis filed 29 March 2019, par 40.
Senior Constable Francis was cross‑examined at some length by the appellant. Much of the cross‑examination focussed on where Senior Constable Francis first met the appellant on the day of his arrest (at the front gate or by jumping the fence and knocking on the door) and whether the appellant raised with him the MRO he had obtained against the protected person. Senior Constable Francis denied that he said to the appellant words to the effect that 'if you plead not guilty, there is no bail'.[56]
The evidence of Remington Dan De Montereau
[56] ts 119.
The evidence‑in‑chief of Constable De Montereau comprised an affidavit filed 29 March 2019.
In his affidavit, Constable De Montereau deposed to the circumstances surrounding the arrest of the appellant on 18 April 2019. His evidence was as follows:
(a)They arrived at the appellant's house which was a semi‑rural property and parked outside the gate. He could not recall how they got the appellant's attention but that the appellant came to the front gate.[57]
(b)They gave the appellant his rights and cautioned him and then took him back to the station for an interview.[58]
(c)The appellant told them that he was at the Midland courthouse when the incident occurred and that the appellant admitted that he and the protected person were in the registry together and that he spoke to her.[59] The appellant said that because it occurred in a courthouse, he was not in breach of the FVRO.[60]
(d)Senior Constable Francis formally refused bail.[61] Because bail was refused they were trying to get the appellant before the Magistrate that day.[62]
[57] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 11.
[58] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 12.
[59] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 21.
[60] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 22.
[61] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 27.
[62] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 29.
In response to the allegation that Senior Constable Francis told the appellant that 'if he pleaded not guilty there is no bail', he deposed that:[63]
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 Mr Tsang bail.
[63] Affidavit of Remington Dan De Montereau filed 29 March 2019, par 38.
Under cross‑examination by the appellant, Constable De Montereau gave evidence that on the morning of 18 April 2018, the appellant came to the front gate to speak with the officers and let them into his property. He denied that Senior Constable Francis said to him 'if you plead not guilty, there is no bail'.[64] Constable De Montereau was also cross‑examined at length by the appellant about whether he had raised with him the MRO he had against the protected person.
[64] ts 146.
Applicable Legal Principles on Application to adduce additional evidence
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. Pursuant to s 39(3) of the Criminal Appeals Act, this does not affect the power of the court to admit evidence pursuant to s 40.
Section 40(1)(e) confers on the court the power to admit 'any other evidence' for the purpose of dealing with the appeal. This power is not expressly limited or confined.
In KMT v The State of Western Australia [No 2],[65] the court summarised the principles that govern the determination of the appellant's application in the following terms:
While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of the exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.
[65] KMT v The State of Western Australia [No 2] [2018] WASCA 49 [46].
At common law, a distinction is drawn between fresh evidence – that is, evidence which did not exist at the time of the trial or could not then, with reasonable diligence, have been discovered – and new evidence – that is, evidence which was available at the time of the trial or, with reasonable diligence, could have been discovered.[66]
[66] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [96] ‑ [101]. See also Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259; Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517.
The evidence that was sought to be adduced by the appellant concerned what was said to him by the arresting officers at the time they arrived at his house and whether he raised with them the MRO that he had against the protected person. The appellant also sought to give evidence and to cross-examine the two police officers about the failure by the police to accept his complaint about the protected person's conduct at the Midland courthouse on 11 April 2018 and whether she had breached the MRO that he had obtained against her.
Much of the frustration that the appellant expressed in relation to this matter concerned what he considered to be the different treatment by the police of him as compared to the protected person and the conflicting information he received from the police as to whether the MRO that he had obtained had been served on the protected person. Ultimately, whether the protected person breached the MRO that the appellant had in place and ought to have been charged is not an issue before me. The only issue that is before me on this appeal is whether the appellant's conviction ought to be set aside. This depends on whether the appellant breached the FVRO by approaching or communicating with the protected person and whether any of the exemptions apply.
I find that the evidence sought to be adduced by the appellant was 'new' evidence as it was evidence which was available or could have been obtained at the time he pleaded guilty. As 'new evidence', as noted above, the test I am to apply in considering whether to set aside the appellant's conviction is 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.[67]
[67] Rodi [100].
It is not sufficient for the appellant to show that there was an increased chance of acquittal of the charges if the evidence was adduced. It is necessary for the appellant to show that he is innocent or to raise such a doubt that the court concludes that the appellant should not have been convicted.[68]
[68] DPJB v The State of Western Australia [2010] WASCA 12 [66].
In order to answer this question, it is necessary to consider the offence for which the appellant was charged and the elements of this offence.
Issues for determination
The issues that I am required to determine are 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; and second, whether on the facts, including the new evidence, the appellant could not be convicted of the offence he was charged with. In relation to the second issue, this in turn requires consideration of whether the appellant's conduct, which occurred in the registry of the Midland Magistrate's Court, falls within the exemption of the FVRO or whether the appellant has a defence under the Restraining Orders Act 1997 (WA) (the Act), s 62(1)(ca).
Disposition of appeal
Were there any actions by the police officers that amount to inducement or intimidation at law such that the appellant's plea of guilty cannot be considered voluntary?
The appellant's submission is, essentially, that he was induced into pleading guilty to the charge on the basis of a statement made to him by Senior Constable Francis in the presence of Constable De Montereau that 'if you plead not guilty, there is no bail'. Both officers deny that such a statement was made.
In assessing the appeal, it is 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. In this regard, I note that there is 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 learned magistrate on the afternoon of his arrest. In addition, the appellant's evidence does not go so far as to state that the alleged statement made him feel that he had no other choice other than to plead guilty.
I have taken into account the fact 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 learned magistrate on 18 April 2018.
However, even if the statement 'if you plead not guilty, there is no bail' was made, I am 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 for the following reasons.
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.
These matters, individually and collectively, support a conclusion that the appellant's plea of guilty was attributable to a genuine consciousness of guilty and was not a result of a statement, if any, made to him by Senior Constable Francis.
Could the appellant, as a matter of law, not be convicted of the offence he was charged with?
Statutory framework of the Act
Family violence restraining orders are dealt with in Part 1B of the Act. Part 1B is concerned with the prevention of family violence, the protection of persons from behaviours that constitute 'family violence' and the prevention of behaviours that could reasonably cause in a person an apprehension of 'family violence'.
Section 10A sets out the objects of Part 1B. The section specifies the objects of the Act in relation to 'family violence'. The term 'family violence' is defined in s 5A(1) of the Act. Section 5A(1) provides:
A reference in this Act to family violence is a reference to ‑
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
Section 10B(1) specifies the matters that a court must have regard to in performing a function under the Act relating to family violence restraining orders.
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 the matters that a court is to have regard to when considering whether to make a family violence restraining order and the terms of any such order. These include:
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them; and
(c) other current legal proceedings involving the respondent or the person seeking to be protected.
Section 10G provides that:
(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 -
…
(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;
…
(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.
The appellant denies that he was a family member of the protected person or that she was entitled to an FVRO.[69] However, the question as to whether the protected person ought to have been granted an interim FVRO is not an issue that is before me and is not relevant to my decision. The only issue before me is whether the appellant breached the terms of the interim FVRO which was then in place.
[69] ts 89 - 90.
The defendant was charged with a breach of the FVRO under s 61(1) of the Act. Section 61(1) of the Act provides that:
A person who is bound by an FVRO or VRO and who breaches that order commits an offence.
That is, the elements of a breach of the Act are first, there is a FVRO or VRO in place (whether interim or final), second, the FVRO or VRO has been served on the person bound by the FVRO or VRO; and finally, a term of the FVRO or VRO has been breached.
Section 62 of the Act sets out the defences that are available to a charge under s 61. The only possible relevant defence in this case is s 62(1)(ca) of the Act which provides that:
It is a defence to a charge under section 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 -
…
(ca)attending a court hearing in proceedings under this Act or under any other written law.
It is clear from the terms of s 61B of the Act that it is not a defence to the charge that the protected person's conduct towards the appellant has caused or contributed to the breach.
Interpretation of the FVRO
In Horvath v Sharples[70] Hall J summarised the principles relating to the construction of restraining orders as follows:[71]
It does not appear that principles relating to the construction of restraining orders have been considered by the Court of Appeal. I agree with the approach taken by Beech J in Sturt v Ball :
'Breach of a restraining order is an offence rendering a person liable to up to 2 years imprisonment under s 61(1). Consequently, a restraining order, like an injunction, must clearly identify the conduct that is restrained. In that framework, a court will be, to say the least, cautious to imply additional restraints into the terms of a restraint order.'
Given that a breach of the order may give rise to imprisonment, and in order to promote certainty as to the prohibited conduct, courts should interpret restraining orders according to their plain and ordinary meaning and should be slow to imply additional words or restraints into the orders. (footnotes omitted)
[70] Horvath v Sharples [2018] WASC 315 [18] ‑ [19].
[71] Horvath v Sharples [18] ‑ [19].
I respectfully agree with his Honour.
A copy of the FVRO was not tendered or put before the learned magistrate on sentencing. I note that there were two errors of fact in the statement of facts presented to the court on sentencing. First, the order that had been served on the applicant was an interim order and not a final order. Second, as a consequence, the duration of the order was until a final hearing had occurred or consent orders were made and not for two years. While these mistakes are regrettable, neither of these matters, by themselves, are sufficient to support a contention that the appellant could not have been convicted of the offence he was charged with.
The FVRO required the appellant not to '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, … approach or remain within 25 metres of the Person Protected.' Part B relevantly provided that the appellant would not breach the order if he was to 'participate in and attend court events in proceedings in which the Person Protected and you are parties or witnesses and to comply with any order or direction of a Court.'
The words used in the FVRO must be given their plain and ordinary meaning. On its terms, the FVRO prevented the appellant from communicating with, or approaching or remaining within 25 metres of the protected person unless he 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. That is, any communication by the appellant while participating in a court hearing in proceedings involving the protected person was not a breach of the order. Further, the appellant could be and remain within 25 metres of the protected person in a court room for a court hearing without being in breach of the order.
In my view, the plain and ordinary meaning of the terms of 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. This is for the following reasons.
First, the exemptions to the prohibited behaviour included the participation in and attendance at 'court events' in 'proceedings'. 'Event' is commonly defined to mean 'something which occurs in a certain place during a particular interval of time'.[72] On this basis, the exemption applies to participation in and attendance at a court event or hearing which is listed at a particular time. If it had been intended that the exemption was to apply more generally within the court building, the FVRO would state this.
[72] Macquarie English Dictionary (6th ed, 2013).
Second, this construction is consistent with the purpose of the Act which is to maximise the safety of the protected persons and to reduce to the greatest extent possible the incidence of family violence.
The appellant's complaint that the protected person should not have been present in the Midland court registry because of the MRO that the appellant had against the protected person also does not provide a defence to the charge. While the conduct of the associate of the protected person towards the appellant undoubtedly caused or contributed to the breach of the FVRO, the Act specifically provides that this is not a defence to the charge.[73]
Defence under s 62(1)(ca) of the Act
[73] Restraining Orders Act1997 (WA), s 61B.
It is a defence to a charge under s 61 of the Act for the person bound by the order to satisfy the court that in carrying out the act constituting the offence the person was 'attending a court hearing in proceedings under this Act or under any other written law'.
This defence was inserted into the Act in 2016. There has been no published judicial consideration of this section.
The explanatory memorandum accompanying the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (WA), which ultimately amended the Act, contained the following comments on the section which became s 62(1)(ca):[74]
Section 62 sets out a number of defences to the offences created under section 61. The new section 62(1) paragraph (ca) creates an additional defence for circumstances where the 'breach' is the result of the person's attendance at a court hearing under the Act or under any other written law. This defence is necessary because hearings are often attended by both the person restrained by an order and the person protected, resulting in a degree of proximity that may not be permitted under the terms of the order.
[74] Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 Explanatory Memorandum, p 34.
The Second Reading Speech on the bill does not refer to this subsection nor was it discussed in any detail during the parliamentary debates around the bill.
The starting point in considering the meaning of this section is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.[75]
[75] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4].
The approach to statutory construction was summarised by Buss JA (as he then was) in Caratti v Mammoth Investments Pty Ltd as follows:[76]
The modern approach to statutory construction is purposive. 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.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
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. 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. (footnotes omitted)
[76] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 [390] - [392].
There is no definition of 'court hearing' in the Act. 'Hearing' is commonly defined to mean 'the presentation of a matter before a tribunal'.[77] 'Proceedings' is commonly defined to mean: [78]
(a)the instituting or carrying on of an action in law;
(b)a legal step or measure: to institute proceedings against a person.
[77] Macquarie English Dictionary (6th ed, 2013).
[78] Macquarie English Dictionary (6th ed, 2013).
That is, it is a defence under the Act for the person bound by a FVRO to carry out an act that would otherwise be an offence, if the act occurs while attending or presenting a matter in any proceedings. This is the case whether in an application under the Act or in proceedings in any other court or tribunal. However this section does not provide a defence for an act that would otherwise be an offence which occurs in the court building.
In circumstances where the appellant committed the act in the court building but not during the course of any court hearing, s 62(1)(ca) of the Act does not provide the appellant with a defence to the charge.
For these reasons, it cannot be said that the appellant could not, as a matter of law, be convicted of the offence with which he was charged. Accordingly, 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 interim FVRO and I refuse leave to the applicant to adduce this evidence.
For the reasons set out above, while I would grant leave to appeal, I dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill13 AUGUST 2019
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