W v Police No. Scciv-03-1122
[2003] SASC 362
•1 October 2003
W v POLICE
[2003] SASC 362Magistrates Appeal: Criminal
MULLIGHAN J The appellant and his wife were married on 12th October 1992. They have one child, a daughter, whom I shall refer to as “K”, who was born on 29th April 1994 and Mrs W has one child of a previous relationship, a boy whom I shall refer to as “A”, who was born on 11th January 1987. They separated on 3rd June 2001 and their marriage was dissolved recently.
On 26th June 2003, Mrs W, through a police officer, laid a complaint against the appellant pursuant to s 4 of the Domestic Violence Act 1994 stating that there is a reasonable apprehension that the appellant may, unless restrained, commit domestic violence. That section enables the Magistrates Court of South Australia to make a domestic violence restraining order if there is a reasonable apprehension that a person may commit domestic violence unless restrained and that the Court is satisfied that the making of the order is appropriate in the circumstances. On 27th June 2003 a learned Magistrate was so satisfied, after an ex parte hearing, and made an order in the following terms:
“That the defendant was restrained:
1From communicating directly or indirectly, in person, in writing, by telephone, through a third person or otherwise with [Mrs W], [K] or [A] [or either of the children];
2From attending at or remaining at or within 500 metres of [the matrimonial home] or any other place of residence of [Mrs W], [K] or [A];
3From attending at or remaining at or within 500 metres of the place of employment of [Mrs W];
4From assaulting, harassing, threatening, intimidating or causing or threatening to cause damage to the property of [Mrs W], [K] or [A];
and that;
5Any firearm in the defendant’s possession be confiscated and held by the Registrar of Firearms, to be returned if this order is not confirmed and that any licence or permit to be in possession of a firearm is suspended until the Court determines whether to confirm this restraining order.”
He also ordered that a summons be issued to the appellant returnable on 4th July 2003 to show cause why the orders should not be confirmed. On 4th July the appellant appeared without legal representation and the complaint was set for trial on 30th July 2003.
The complaint came to trial on 30th July 2003 before a learned Magistrate who is not the same Magistrate who heard the matter on 27th June 2003. He heard evidence from Mrs W, the appellant, Ms Zaskolny, Detective Rowe and Detective Modra on that day and the next day. On the next day, 31st July 2003, the learned Magistrate made an order confirming the order of 27th June 2003. The appellant appeals against that order.
At the trial, the learned Magistrate had before him the affidavit of Mrs W which she had sworn on 26th June 2003 and which was also before the first Magistrate. Mrs W confirmed the accuracy of that affidavit in her evidence before the learned Magistrate. She deposed to unusual and sexual proclivities of the appellant which, for present purposes, need not be repeated, except as follows.
She claimed that when K was aged three years, she was in the bath with the appellant and they were both naked. She said that she saw that he allowed the child to play with his penis and he told Mrs W that such conduct was a natural part of growing up in his society. This incident must have occurred about seven years ago. She also alleged that there were a few occasions when the appellant had a bath with the child and he locked the bathroom door so that she could not see him.
Mrs W also deposed to another incident involving the appellant and K. She stated that on one occasion early one morning the appellant was naked in bed under the bed covers and the child was lying alongside him. She was also naked. The appellant had an erection and was holding her tightly and had a look of enjoyment on his face. She also claimed that the appellant had, on 3rd June 2003, broken into the former matrimonial home where she resided with the children and, on 4th June 2003, into a shed at the property and also that he had followed her on three occasions. She claimed to be frightened of the appellant.
There are proceedings between the appellant and Mrs W pending in the Family Court of Australia. I was informed that these proceedings have been on foot for about two years and included an application by Mrs W that K live with her and an application for settlement of property. The appellant is the owner of the former matrimonial home.
Section 4(2) of the Act provides, inter alia, that for the purposes of the Act a person commits domestic violence if that person causes damage to the property of a member of his or her family, if on two or more occasions, the person follows a family member, or engages in other conduct so as to reasonably arouse in a family member apprehension or fear of personal injury or damage to property or any significant apprehension of fear.
The learned Magistrate, in reasons for his decision which he gave ex tempore, found on the balance of probabilities that on two occasions the appellant “committed domestic violence of sexual abuse of his daughter” and that on two or more occasions he followed Mrs W and kept her and the two children under surveillance. He also found that the appellant entered the former matrimonial home and caused damage to her property.
There are two grounds of appeal which allege irregularities in the approach of the learned Magistrate to his conclusion.
The appellant was not legally represented at the trial. The prosecution was conducted by a police prosecutor who presented the prosecution case by tendering Mrs W’s affidavit which was supplemented by brief evidence-in-chief from her. She confirmed the assertion in her affidavit that on 4th May 2003 she went to the Sturt Police Station to leave the children for an access visit by the appellant. She was sitting in her motor vehicle talking to the supervisor of the access when she saw the appellant standing outside the vehicle adjacent to her listening to her which caused her to feel scared and intimidated.
She also confirmed the allegation in her affidavit that on 3rd June 2003 the appellant broke into the house, damaged an alarm, broke some windows and locks on one of the doors. He took a number of items, including evidence of child pornography, video tapes, magazines, bottles of urine and faeces, the children’s passports, clothes, school items, their computer and birth certificates. She stated that he also took her personal belongings, jewellery and work-related documents.
Mrs W said the shed was broken into on the morning of 4th July 2003. Before that day she had taken photographs of the contents of the shed and consequently she was able to say what items were missing. There is some uncertainty about this date which arose in cross-examination of Mrs W by the appellant but that uncertainty is of no consequence for present purposes.
Finally, Mrs W gave evidence of a device which the appellant made and used to block the toilet so that faeces could be recovered. She described sexual behaviour of the appellant which he committed alone using small parts of the recovered faeces on his penis. He also collected urine, pubic hair and other personal items. Also, she said that he installed a camera in the toilet. She gave only brief oral evidence about the alleged incidents of child sexual abuse during cross-examination by the appellant and not in response to a question.
Also, during cross-examination by the appellant, Mrs W said that she had seen his motor vehicle near the matrimonial home and she had seen him in the supermarket at Blackwood when he was living away from Adelaide on “a number” of occasions. She said that she saw him near the matrimonial home on 27th April 2001. These allegations were not made in her affidavit.
At the end of the prosecution case, the learned Magistrate told the appellant that he did not have to respond to the allegations in the prosecution case. The evidence of Mrs W did not alter that position. He told the appellant that he was “perfectly entitled to remain silent and nothing adverse will be considered in that connection”. The appellant said that he wanted to give evidence and he did so.
The appellant told the learned Magistrate that he was a school teacher and his prospects of employment were severely compromised by reason of the allegations of child sexual abuse and that he indulged in child pornography. He denied allegations of Mrs W that he had ever been violent towards her or threatened violence. He asserted that he did not represent any danger to her and that the children were not at risk. He told the learned Magistrate that he had lived in the former matrimonial home for over 25 years and he had many friends in that area whom he had visited without disturbing Mrs W.
He acknowledged that he went to the house on 3rd June 2003. He said that he had made extensive attempts through the Family Court, commencing in September 2001, to negotiate collection of his personal effects from the house without success. He told the learned Magistrate that Mrs W eventually allowed him to collect some items of property which she agreed to pack in boxes and leave outside the house for collection after an access visit. He went to the house for that purpose having ensured that she would not be present. She was at the Family Court. He told the learned Magistrate that he had received legal advice to the effect that he had the right to go to the house and that he should exercise that right and, if necessary, he could break into the house but he could not commit a breach of the peace. He said that he went to the house and carefully broke two windows to gain access. He did not damage the alarm or any locks, except a lock on the garage. Apart from personal items, he also took a motor vehicle which was on blocks and not being used.
The appellant gave evidence in response to the allegations made by Mrs W about his interests in faeces and urine. It is unnecessary for present purposes to repeat this evidence. It is sufficient to say that he admitted aspects of his interests before their marriage. He also said that he respected her views and he practised this proclivity infrequently.
The appellant acknowledged that he accessed pornography which activity, he said, was shared by Mrs W. However, he denied accessing child pornography and said that he had no interest in that matter and regarded it as a breach of the law and his integrity as a parent and teacher. He also denied the other allegations in Mrs W’s affidavit.
As to the allegations of sexual abuse, the appellant told the learned Magistrate that he was in the bath with K who asked him if she could look at his penis. He regarded that request as “perfectly innocent”. He said that he refrained from expressing his discomfort and allowed her brief examination. He told the learned Magistrate that he has since considered the incident and believes that he made the correct decision in the brief moment he had to consider it. He denied that he told Mrs W that he regarded K’s behaviour as a natural part of growing up in his society, but he did say that taking an interest in genitalia was a natural part of growing up. He denied that he had ever taken a bath with the child with the door locked and said that the lock was not placed on the door until some years later, in 1999.
According to the appellant, the incident when he was in bed occurred in the presence of Mrs W who was next to him in bed. He had what he called “a morning erection” and K came into the bed for a cuddle. He went to some lengths to hide the condition of his penis from the child. As I understand his evidence, there was no sexual activity of any nature.
The appellant told the learned Magistrate that Mrs W was abusive and threatening to him and he denied any improper conduct towards her.
According to the appellant, he saw Mrs W, apart from occasions at the Family Court, on three occasions and also at occasions when the children were handed over to him at the Sturt Police Station. He described each of those three occasions which he said occurred over a period of two years. He said that on the first occasion Mrs W drove passed him in her motor vehicle at Blackwood. On the second occasion which occurred in late April 2003, he was returning from a visit to his access supervisor having made an arrangement to deliver a birthday present for K when he saw Mrs W and the children walking in the street near the Eden Hills Railway Station. The third occasion occurred on 24th June 2003 when he drove into Willunga Street where the matrimonial house is situated to collect an item of property. He told the learned Magistrate that he was on his way to see the police at the Sturt Police Station about his entry to the house which had occurred a few days earlier. He said that he was not aware of Mrs W seeing him on any other occasion, although he drives into Willunga Street on occasions to visit friends.
He told the learned Magistrate that he did approach Mrs W’s motor vehicle at the Sturt Police Station on 4th May 2003 as alleged by her. He said that he did so because she had been making verbal attacks on the supervisor of his access to the children with the consequence that most of them would no longer undertake that role. He had an access supervisor with him who discussed the matter with Mrs W. He denied that he made any threat to her.
The appellant admitted that he entered the shed at the former matrimonial house again but he did not break into the shed. He took a substantial amount of tools and other items. He denied that he owned or had access to a firearm and said that he had not used a firearm for over 30 years.
The appellant called Detective Rawe of the Sturt Criminal Investigation Branch. He told the learned Magistrate that Mrs W had called him to the matrimonial home having alleged that child pornography was at the property. He did not find any such material although adult pornographic images were stored in a computer. He also called Detective Modra, who was also stationed at Sturt Criminal Investigation Branch. He said that Mrs W made a complaint about the break-in of the matrimonial home by the appellant. She gave him a list of the items she alleged were taken. It appears that complaints were also made that the appellant had sexually abused K.
Detective Modra told the learned Magistrate that Mrs W had alleged that the appellant was a paedophile, he had child pornography on his computer and that he had sexually molested K when she was aged three years. The prosecutor objected to further evidence about the last mentioned allegation. He told the learned Magistrate that the allegation was being considered, presumably by police or the Director of Public Prosecutions. The learned Magistrate informed the appellant that any findings made in these proceedings might very well be used in criminal proceedings. He went on to say:
“No-one is going to think ill of you for wanting to leave this subject alone, for that reason alone. The fact that I am applying one particular test [I] might arrive at a conclusion if I hear any facts on this topic is, of course, liable to be dangerous if used or indeed misused in another place.”
He then told the appellant that someone might ask for a transcript of the proceedings before him and his reasons for judgment. Evidence and findings could be used in other proceedings, including in the Family Court. The appellant said that he wanted to establish that only two allegations had been made and the learned Magistrate accepted that the evidence only established the two allegations. No further questions were asked by the appellant about those allegations. He told the learned Magistrate that he intended to leave Australia on 12th August 2003 and live overseas indefinitely and he had to contest the proceedings because of the allegations of child sexual abuse, and presumably his accessing child pornography, because those allegations prevented his being employed in his occupation as a school teacher.
During the course of his evidence, the appellant described an unhappy and often acrimonious matrimonial relationship largely, if not entirely, due to the conduct of Mrs W, including a number of false allegations of sexual assault by men upon her. Marriage guidance counselling commenced in December 2000 with a particular counsellor whom the appellant had told the learned Magistrate, during his brief opening of his case, he intended to call to give evidence. He also made allegations about Mrs W’s conduct towards the children and the problems she had created to prevent his taking access to them. I do not think it is necessary to repeat this evidence.
The appellant also called Ms Zaskolny to give evidence. She and her former husband were friends of the appellant before he married Mrs W. She accompanied the appellant when he broke into the former matrimonial home on 3rd June 2003. She confirmed his evidence about what happened on that occasion and what items he took from the house. Her evidence contradicted allegations of Mrs W to the police as to some items alleged to have been taken.
At the conclusion of the defence case, the learned Magistrate informed the prosecutor and the appellant that it was customary that where a defendant was unrepresented the prosecutor was not required to provide a summary to the Court and he thought the same should apply to the appellant. I expect that the learned Magistrate was referring to what had been regarded as a practice in this State of the prosecutor not being permitted to make a final address in a criminal trial where the accused is unrepresented. That practice was not an invariable practice and, in any event, did not continue after 1st January 1993 when s 288B was introduced into the Criminal Law Consolidation Act 1935. That section provides that at the conclusion of the evidence, the prosecutor and the defendant are entitled to address the Court on the evidence and the address for the prosecution is to be made before any address for the defence: R v Karounos (1995) 63 SASR 451 at 466.
The appellant was charged on complaint and the practice of the Magistrates Court as to the right of addressing the Court in reply is in accordance with the practice of the Supreme Court upon trial of an action. Section 19(1) of the Domestic Violence Act provides that subject to the Act and Rules, the Summary Procedure Act 1921 applies to a complaint and proceedings under the Act. The prosecutor had the right to address the learned Magistrate: Godbee v Samuels (1973) 5 SASR 236 at 240 and RSPCA (SA) Inc v Stojcevski (2002) 218 LSJS 143. There was no practice precluding the appellant from addressing the learned Magistrate. The learned Magistrate did not allow the prosecutor or the appellant to address him. Whilst neither of them questioned the intimation of the learned Magistrate, not allowing such address was a serious irregularity. The appellant was not represented. The learned Magistrate was obliged to inform him of his right to make a final address and to permit him to do so. Indeed, I think in the circumstances he was obliged to inform the appellant of any findings adverse to him which he was contemplating and to ask if he wanted to make any submissions about them and any other matters of significance.
The grounds of appeal do not raise this error and it was not argued on the appeal. Consequently, I re-listed the hearing of the appeal and heard further argument. It was acknowledged that the learned Magistrate erred in not allowing the appellant to address him. This resolution of the complaint depended upon findings of credit of the appellant and Mrs W. There were some inconsistencies in her evidence and an address by the appellant could have assisted the learned Magistrate in reaching a correct decision. Furthermore, whilst the appellant acknowledged the basic facts regarding the two incidents involving K, he disputed that either incident constituted sexual abuse. He was deprived of the opportunity of persuading the learned Magistrate that his conduct on either occasion amounted to sexual impropriety on his past.
In his reasons for judgment the learned Magistrate summarised the evidence but he did not make any findings as to what evidence he accepted as to the alleged sexual misconduct or as to the differences in the evidence as to the other alleged incidents. He said that he was not satisfied with the evidence of Mrs W and that the appellant had demonstrated inconsistencies in her evidence during cross-examination. He declined to believe her evidence about reports she made to the police. He rejected her evidence that she did not have a bank account which evidence was given on oath. He rejected other aspects of her evidence and said in respect of one matter that he would not accept her evidence without independent evidence supporting her allegation. He rejected her evidence that she was financially dependent upon the appellant which was tantamount to emotional abuse. It is not necessary to set out all of the adverse findings which the learned Magistrate made about the evidence of Mrs W. He rejected the case for the complainant except in the respects which I now mention.
Having summarised the evidence of the appellant about those incidents which was an innocent explanation, the learned Magistrate said:
“The two events, in my view, were and remain connected in circumstance, if not time. Undoubtedly these episodes were sexual in nature. Whatever may be said of the merits of the defendant’s contention in relation to the process of growing up, in the case of his three year old daughter, the issue remains to be addressed as to whether the Court should accept on the balance of probabilities [Ms W’s] contention that the defendant allowed [K] to play with his penis. The defendant denies that he did so.
As to the related event, which the defendant contends occurred a few weeks afterwards when he and his daughter were in bed together, I do not accept his glib assertion that the explanation for his physical appearance, which undoubtedly was seen by [Ms W], was an innocuous ‘early morning erection’. I reject the defendant’s assertion outright. His explanation was fatuous and in my assessment was not a truthful explanation of his condition or the reason for it. I think that event was sexual in nature and notwithstanding the misgivings I have expressed concerning the evidence of [Ms W] on other occasions and in relation to other matters, here I accept the cogency of her assertion.”
In my view, these findings are flawed. There was little evidence about either incident. Mrs W did not describe in any detail what she said occurred. I have doubts as to whether the evidence could establish that either incident was undoubtedly “sexual in nature”. The appellant’s sworn evidence was to the contrary. Indeed, with respect to the incident in the bedroom there was no evidence from the appellant of either the appellant or K touching each other, except that in her affidavit Mrs W deposed to the appellant and the child holding each other very tightly. There was no evidence that the appellant touched the child on either occasion. The conduct does not fall within any of the categories of domestic violence set out in s 4(2) of the Domestic Violence Act. To allow a little girl to explore the penis even momentarily may be offensive to many members of the community who would not permit such conduct to occur. However, that is not to say that such conduct is necessarily sexual in nature. In effect, the appellant said in evidence that he did not regard what K did to him as sexual conduct. However, it is not necessary to reach a conclusion about this matter as the finding of the learned Magistrate cannot stand for the reasons I have given. The appellant was denied the opportunity of making submissions to the learned Magistrate about the matter. He had no reason to believe that the learned Magistrate was contemplating a finding adverse to him.
I have mentioned what the learned Magistrate said to the appellant during the trial. The advice which he gave him was sound advice in the circumstances because of the allegations of child sexual abuse which were being considered by the authorities and the possible prejudice to the appellant if those allegations were further canvassed in evidence before the learned Magistrate. However, the consequence to the appellant is that he was entitled to assume that the learned Magistrate would not make findings about the allegations and therefore he was not required to present his case about them beyond the brief evidence which he had given. I accept that for those reasons he chose not to call the psychologist who could have given evidence about her extensive dealings with the family. He did not establish in his examination of Detective Modra as to what allegation Mrs W had made of a sexual nature. I am unable to say whether evidence of these witnesses could have led the learned Magistrate to a different conclusion. To make adverse findings in those circumstances was a significant error and the findings cannot stand.
Much the same observations must be made about the allegation of sexual conduct in the bed. Also, as I have said, there was no evidence of sexual conduct. The evidence of Mrs W was vague and brief. No detail of the alleged incident was given. The adverse findings about this incident also cannot stand.
I have mentioned the evidence of the appellant as to his seeing Mrs W when she drove past him at Blackwood, when he saw her and the children in the street, when he saw her washing her motor vehicle and when he approached her on an access occasion when she was sitting in her motor vehicle. The learned Magistrate found that those incidents demonstrate that the appellant had a practice of following Mrs W and, or, the children on more than one occasion. He said that he was not satisfied that the appellant’s explanation “is as innocuous as he suggests”. He went on to say:
“At least for so long as he proposes to remain in the Adelaide area, it seems that [Ms W’s] address is on or proximate to the route the defendant takes on a frequent basis. To my mind, there is at least potential for a continuation of what I am prepared to conclude has been the defendant’s practice in relation to this process of following [Ms W] and/or the children. This conclusion derives principally from the evidence of [Ms W] coupled with the defendant’s concessions in his evidence in chief.”
As I have mentioned, the learned Magistrate made adverse findings about the credit of Mrs W. I do not think there is any sound basis for this conclusion. The appellant and Mrs W had been separated for about two years. He had lived in the area for 30 years. To have seen Mrs W in the area on only the occasions established by the evidence does not justify the conclusion that he was following her and the children. On one of those occasions he was attending an occasion of access to the children in company with a supervisor. The other occasions do not suggest that the contact was other than unexpected.
The appellant did break into the matrimonial home on 3rd June 2003 and went back to the shed at the home on 4th June 2003. There is no reason to reject his explanation for having done so. He owned the house and believed that he was entitled to enter the house as a matter of law having received legal advice to that effect. That explanation was not in dispute before the learned Magistrate. Undoubtedly his behaviour on his occasion was unwise. There are, and were at the time, proceedings on foot in the Family Court. That Court could have made an order permitting the appellant to collect his personal items from the house. The appellant chose to act peremptorily without the benefit of an order of the Court. His action may be fairly criticised for that reason and because it was likely to undermine Mrs W’s sense of safety and security in the house. However, these incidents must be put in context. They occurred on successive days and were not repeated. Section 4(2)(c) of the Domestic Violence Act provides that a person commits domestic violence if on two or more occasions that person “enters or interferes with property occupied by, or in the possession of, a family member”. The learned Magistrate did not make a finding that the appellant had committed domestic violence because of his entering the property on those two occasions but he could have done so.
As I have mentioned, on 31st July 2003 the learned Magistrate confirmed the domestic violence restraining order made on 27th June 2003. In doing so, he was required to make a finding that the appellant was guilty of domestic violence but also that the violence was such as to reasonably arouse in a family member apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
I do not think the evidence justified such a finding. The appellant broke into the house on the two occasions during a period of less than 24 hours for the purpose which is clear on the evidence and after receiving legal advice. There was no reason to suppose that such conduct was likely to again occur.
In my view the order should not have been confirmed. I allow the appeal and set aside the order made by the learned Magistrate.
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