Van Hoof v Police - [2009] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN HOOF v POLICE
[2009] SASC 48
Judgment of The Honourable Justice Nyland
27 February 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - CHILDREN - GUARDIANSHIP, CUSTODY AND RESIDENCE - EXERCISE OF COURT'S DISCRETION WITH RESPECT TO CUSTODY OR RESIDENCE - FACTORS IN EXERCISE OF DISCRETION - DOMESTIC VIOLENCE
POLICE - RIGHTS, POWERS AND DUTIES
Appeal against refusal by Magistrate to order costs in favour of appellant who successfully defended domestic violence restraining order - complaint laid by police on basis of information provided by appellant's partner - adverse finding at trial as to credibility of partner which resulted in dismissal of complaint - whether police had acted unreasonably in instituting proceedings - whether police should have made further enquiries.
Held: Complainant police officer relied on information provided to her which disclosed grounds for making application for domestic violence order - lack of candour by witness but police did not act unreasonably in relying on her statements - appeal dismissed.
Summary Procedure Act 1921 s 189; Domestic Violence Act 1994 s 6, referred to.
Adam White v Police [1997] SASC 6748; Unreported Judgment Delivered 19 November 1997, considered.

VAN HOOF v POLICE
[2009] SASC 48
Magistrates Appeal

NYLAND J: This appeal is from an order of a magistrate made in the Mount Barker Magistrates Court on 5 December 2008, wherein the learned Magistrate refused to grant the appellant an order for costs pursuant to the provisions of s 189 of the Summary Procedure Act 1921.
On 16 July 2008, Stephanie Kluske, a member of the police force laid a complaint against the appellant in the Mount Barker Magistrates Court seeking a domestic violence restraining order on behalf of Joanne Herbert and her children Lauren van Hoof and Amy Herbert. The complaint was supported by an affidavit of Joanne Herbert. The affidavit appears simply to be a replication of a statement taken by Constable Kluske on 16 July 2008. In her affidavit Ms Herbert referred to her relationship with the appellant which had commenced in about May 2002. Lauren and Amy are the children of that relationship. On the strength of that affidavit, on 17 July 2008, the Magistrate made an interim order against the appellant and then adjourned the matter to 23 July 2008 for the appellant to be served with a summons to attend to show cause why the interim order should not be confirmed.
In due course, the appellant appeared in court and contested the proceedings. The Magistrate then heard evidence with respect to the matter. Ms Herbert gave evidence which included evidence as to an alleged assault on 23 November 2007 and an incident which had taken place on 13 July 2008 when damage was occasioned to a door of the house. The appellant also gave evidence. He denied any violence towards Ms Herbert on 23 November 2007 or at any time. He admitted damaging the sliding door on 13 July 2008 but said that had occurred as a result of him being locked out of the house.
The learned magistrate delivered reasons for judgment on 5 December 2008. He was unable to accept Ms Herbert as a reliable witness. He said that it became obvious in cross-examination that she had fabricated at least some of her evidence and had exaggerated other parts of it. By contrast, he found the appellant to be an honest and reliable witness and he preferred his evidence where it conflicted with that of Ms Herbert. The Magistrate was not satisfied there was any incident of domestic violence as defined. He did not believe that Ms Herbert had an apprehension that the appellant might commit domestic violence. He believed that was a product of her mind but said that her apprehension was not reasonable. He therefore discharged the interim order and dismissed the complaint.
Counsel for the appellant then made an application for costs. In his reasons for refusing to make an order, the learned Magistrate commented that with domestic violence matters, for a defendant to recover costs he had to be satisfied that there had been some bad faith by the complainant in instituting the proceedings. He pointed out that in this case the complainant was a member of the police force who had relied upon Ms Herbert’s affidavit to institute the proceedings. He said that at least on face value, the affidavit established instances of domestic violence and the reasonable apprehension of fear so as to warrant the making of the interim order. He said it was only when the matter proceeded to trial, particularly during the cross-examination of Ms Herbert, that the case that she sought to present started to fall apart very quickly. He went on to say that to all outward appearances, it was not until during cross-examination of Ms Herbert that anyone would have a reasonable concern about the substance of her allegations. He had no doubt Ms Herbert had her own difficulties, but would not attribute bad faith to her as those difficulties caused her to believe there was a fear of domestic violence without there being any reality to it. He could not however say that there had been any bad faith by the complainant and therefore made no order as to payment of costs.
Section 189(2)(a) of the Summary Procedure Act 1921 is in the following terms:
Costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
In this case, the appellant did not suggest that there was any bad faith on the part of the police in bringing or continuing the proceedings, but submitted that they should be liable for costs, as it had been unreasonable to do so. Counsel for the appellant submitted that the Magistrate had fallen into error by only considering the issue of bad faith, when he was also obliged to consider whether the police had acted unreasonably.
The affidavit placed before the magistrate to support the interim order appears to have been of limited relevance to the proceedings as it refers to aspects of the relationship between the parties going back some years, although it does provide the context in which it is said that the incidents in November 2007 and June 2008 took place.
Of particular relevance to the present argument are the claims by Ms Herbert of the appellant’s violent behaviour towards her on 13 July 2008. In the course of the proceedings to confirm the interim order, the Magistrate was provided with two affidavits of Amanda Curtis, a police officer who, in company with Officer Clague had attended at the home on 13 July 2008 in relation to a domestic disturbance. Senior Constable Curtis mentioned that the front door appeared to have been kicked in slightly at the bottom, which made the door difficult to open. She said however that Ms Herbert told her there had been no physical violence on that particular occasion. Ms Herbert also informed Senior Constable Curtis that there had been ongoing domestic violence issues and she had been to see the Domestic Violence Officer at the Mount Barker police station the preceding week. Senior Constable Curtis said, however, in her affidavit of 8 November 2008, that when she left the house she believed there was no threat of violence nor recurrence of disturbance.
Officer Clague confirmed that on 13 July 2008 he had attended at the house with Senior Constable Curtis and had spoken to the appellant, whom he described as upset and agitated. He said the appellant was outside the house. The appellant told him there had been a dispute over finances and he had been locked out of the house. After about 30 minutes, Curtis came out of the house and the appellant went back inside. Clague said he never saw any damage to the front door and the appellant, although initially upset and agitated, calmed down quite quickly and was rational. Officer Clague did not see any damage to the front door when he departed the premises. It appears however that Ms Herbert went to the police station the following day where the statement relied upon by the police to obtain the interim order was taken by Constable Kluske.
The thrust of the argument put by the appellant with respect to the question of costs was that Constable Kluske had behaved unreasonably by failing to make an enquiry with Curtis or Clague as to what had occurred the previous day. Such an enquiry would have revealed that Ms Herbert did not have a reasonable apprehension of domestic violence. The appellant further submitted that in these matters the police should have had regard to the rights of a proposed defendant such as the appellant. The officer knew, or should know, that the application for the interim order would result in the appellant being ordered to leave his home. In the circumstances, her conduct was unreasonable in not making further enquiries, given the potentially serious consequences.
Counsel for the respondent submitted there was no error made by the Magistrate in the exercise of his discretion to refuse the application for costs. Although the learned Magistrate had not made an express finding as to the question of unreasonableness, he had by implication taken that into account as he commented that it was not until the cross-examination of Ms Herbert that anyone would have had a reasonable concern about the substance of her allegations. That was a finding made after the Magistrate had the opportunity of assessing Ms Herbert as a witness of credit and after the benefit of a trial.
In the alternative, counsel submitted that even if the Magistrate had failed to make a finding as to unreasonableness, the evidence before the court supported the finding that the respondent had acted reasonably in bringing the restraining order application. It was put on behalf of the respondent that it was not the duty of the police to make an exhaustive enquiry and determine for themselves the truth of the matter before instituting proceedings. In this case there was sufficient material contained in Ms Herbert’s statement to the police, to provide reasonable grounds for making a domestic violence restraining order application.
Counsel further submitted that it was not unreasonable for the respondent to have brought the restraining order proceedings, even though the appellant might have had to leave his home. The policy intent of s 6 Domestic Violence Act 1994 is to prioritise the need to protect family members from domestic violence and the welfare of any children involved, as against any hardship that might be caused to a defendant.
Counsel for the respondent further submitted that there was no evidence before the court to say that the police officer who laid the complaint did not have the benefit of the information of police officers who attended the house the previous day, which she may well have taken into consideration. In any event, there was some limited corroboration of Ms Herbert’s evidence in that Curtis noticed that there had been some damage done to the door.
In my opinion, however, there is a marked inconsistency between the statements made by Ms Herbert to Constable Kluske, as opposed to what appears in the affidavits of Senior Constable Curtis and Officer Clague. If Constable Kluske had been aware of their attendance at the house the previous day, and the conclusion reached by Senior Constable Curtis that there was no threat of violence nor any disturbance when they left, I consider that it would have been unreasonable for her to institute the proceedings without further investigation. There is no reference in Ms Herbert’s affidavit, however, to the fact that the police had attended the previous day which, in my view, indicates a lack of candour on the part of Ms Herbert. That would probably be enough to have rendered her liable for an order for costs, if she had laid the complaint herself.
Each of the police officers involved in this matter was working at the Mount Barker Police Station and in the normal course one would have expected there to have been some discussion between them about this matter. The material before the court, however, is silent as to whether that had occurred and if it did what was discussed. Accepting the matters set out in Ms Herbert’s affidavit at face value there were proper grounds to support Constable Kluske making an application to the court for a domestic violence order, notwithstanding that that was likely to result in an order removing the appellant from the home.
In the case of Adam White v Police[1], Perry J considered the question of costs which arose by way of an appeal against the refusal by a magistrate to order costs in favour of a respondent for a restraining order, which was ultimately revoked when the complaint upon which it was based was withdrawn. As he said at p6:
The question then as to what orders should be made as to the costs of the proceedings is not without some difficulty. In the first place, the court should hesitate in yielding to applications for costs orders which might ultimately have the effect of discouraging the police from lending assistance to members of the public who complain of harassment or intimidation. That public policy consideration is a factor which must be borne in mind in the exercise of the discretion.
[1] [1997] SASC 6748 unreported judgment delivered 19 November 1997.
He went on to comment that the determination of an appropriate order for costs in that case was not easy to resolve, but finally concluded that the special magistrate had not erred in declining to order the prosecution to pay costs.
The resolution of this matter is also attendant with some difficulty, particularly as I am of the view that if the complainant had been Ms Herbert it is likely that an order for costs would have followed the event. I am not however persuaded that the police acted unreasonably in laying the complaint on her behalf. On the basis of the information provided to Constable Kluske, it is understandable that she thought it appropriate to lay a complaint seeking an interim domestic violence order. As counsel for the respondent pointed out, it was only after Ms Herbert’s cross-examination at trial that her lack of credibility was disclosed. I am therefore not persuaded that the learned Magistrate fell into error by declining to make an order for costs in favour of the appellant. The appeal is therefore dismissed.