Winter v Lawler
[2000] WASCA 96
•11 APRIL 2000
WINTER -v- LAWLER [2000] WASCA 96
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 96 | |
| Case No: | SJA:1216/1999 | 5 APRIL 2000 | |
| Coram: | MILLER J | 11/04/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed and order quashed Matter remitted to Court of Petty Sessions for re-hearing | ||
| PDF Version |
| Parties: | ALEXANDER JOSEPH WINTER BARBARA JANE LAWLER |
Catchwords: | Appeal Violence restraining order Fresh evidence Effect on Magistrate's decision Turns on own facts |
Legislation: | Restraining Orders Act 1997, s 3, s 11, s 12 Criminal Code, s 333D, s 338E |
Case References: | Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Greater Wollongong Corporation v Cowan (1995) 93 CLR 435 Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BARBARA JANE LAWLER
Respondent
Catchwords:
Appeal - Violence restraining order - Fresh evidence - Effect on Magistrate's decision - Turns on own facts
Legislation:
Restraining Orders Act 1997, s 3, s 11, s 12
Criminal Code, s 333D, s 338E
Result:
Appeal allowed and order quashed
Matter remitted to Court of Petty Sessions for re-hearing
(Page 2)
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Greater Wollongong Corporation v Cowan (1995) 93 CLR 435
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: On 8 November 1999 in the Court of Petty Sessions at Perth, Mr P G Thobaven SM granted to the respondent a violence restraining order which directed that the respondent should not:
"commit or attempt to commit a violent personal offence, as defined in the Restraining Orders Act 1997, against the person protected,
communicate or attempt to communicate by whatever means with the person protected by this order,
enter upon any premises where the person protected lives or works or be within 100 metres of the nearest external boundary of such premises,
approach within 100 metres of the person protected,
cause or attempt to cause damage to the property of the person protected,
behave in an intimidatory or offensive manner towards the person protected,
behave in a manner that is likely to lead to a breach of the peace,
cause or allow any other person to engage in conduct of the type referred to in the preceding paragraphs of this order."
- The term of the violence restraining order was for two years.
2 From the decision of the learned Magistrate the appellant was granted by Wheeler J leave to appeal. There were a number of grounds of appeal, but the primary ground was that since the making of the order "new critical evidence from a credible and independent witness has come to light". The particulars of this ground of appeal were put as follows:
"A new witness has come to light. This witness is the store manager of Myer Booragoon, Mr Chris Mena SAMIOS, who is the superior of both the Respondent and witness Coralie HEPPERKAUSEN. Mr SAMIOS, in a sworn statement, fully supports the Applicant's version of the events as given under oath during the Applicant's testimony. He additionally claims that he witnessed the Respondent tear up the Applicant's 'Plaintiff's Claim' Summons after the Applicant had served it
(Page 4)
- and threw it in a bin under the counter. Mr SAMIOS is willing to fully present his evidence to this."
3 The evidence which led the learned Magistrate to make the restraining order came from the respondent and two witnesses called by her. The appellant gave evidence in response to the testimony which had been led by the respondent and her witnesses. The learned Magistrate saw the issue as being whether the appellant had "stalked" the respondent from a time when she had left his house (where she was a tenant) and whether in those circumstances he could be said to have been "pursuing" her within the meaning of s 338D and s 338E of the Criminal Code. The question in issue was whether the appellant was a person who, within the meaning of s 338E(2) of the Code, had pursued the respondent in a manner that could reasonably be expected to intimidate and did in fact intimidate the respondent. Had he done so he would be guilty of a simple offence. As the learned Magistrate recognised, however, s 338E(3) of the Code provides that it is a defence to a charge under s 338E(2) to prove that the accused person acted with lawful authority.
4 Under the provisions of s 11 of the Restraining Orders Act 1997 a court may make a violence restraining order if it is satisfied that unless restrained, the respondent is likely to commit a violence personal offence against the applicant. A violent personal offence is defined in s 3 of the Restraining Orders Act to mean an offence against the person under Part V of the Criminal Code other than Chapters XXXIV and XXXV. Section 338E is within Part V of the Code and is within Chapter XXXIIIB.
5 In considering whether or not to make a violence restraining order, the court is required by s 12 of the Restraining Orders Act to have regard to a wide variety of matters. Section 12(2) provides that the court is to have regard to the matters set out in subs 1(a), (b) and (c) as being of primary importance. The full list of matters to which the court is to have regard is as follows:
"(a) the need to ensure that the applicant is protected from personal violence;
(b) the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;
(Page 5)
- (c) the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;
(d) the accommodation needs of the respondent and the applicant;
(e) hardship that may be caused to the respondent if the order is made;
(f) any family orders;
(g) other current legal proceedings involving the respondent or the applicant;
(h) any criminal record of the respondent;
(i) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and
(j) other matters the court considers relevant."
6 In the present case the learned Magistrate accepted that the sole question before him was whether the appellant's behaviour towards the respondent was behaviour that could reasonably be expected to intimidate her and had in fact intimidated her. As he put it, the "applicant's case (fell) back to the question of intimidation". Following the decision of McKechnie J in Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999, the learned Magistrate accepted that it was for the respondent to show that she was in fear of the appellant by reason of his behaviour and that in this respect a subjective fear was required, but at the same time a fear that had to be based upon objectively reasonable grounds.
7 The learned Magistrate accepted the respondent as a person who had presented herself "in such a fashion that fear was apparent" and he considered her to be "direct and … genuine". The learned Magistrate concluded there that the respondent had given evidence that she was in fear of the appellant based upon certain overtones of what he had said when she had taken a room at his house, finding the door to her room open on occasions when she returned from being out and the loss of some lingerie and a pornographic movie from her room at the house. All of these things were considered by the learned Magistrate to have had a "cumulative effect" as a result of which the respondent had left the
(Page 6)
- appellant's premises. Thereafter she was telephoned by the appellant and on 12 August 1999 he came to her place at work where he tried to get her attention. On 14 September he had come to the same place and had gone behind the counter where she worked into a staff area where he tried to grab her. The Magistrate accepted that the respondent had been forced to hide in a room and that the appellant had followed her in. This, he found, caused her fear, with the result that she called security and the following day took out an interim restraining order against the appellant. Thereafter, on 16 September, she contended that she had received a telephone call from the appellant.
8 The learned Magistrate placed considerable emphasis upon the events of 14 September 1999 at Myer Garden City, Booragoon, which was the respondent's place of work. He found that on that day, when the appellant had appeared at the respondent's counter, there was no discussion between the appellant and the respondent in relation to service of a summons. The learned Magistrate accepted the evidence of the respondent that the appellant had nothing in his hand on that day and accepted the evidence of Ms Coralie Heppekausen to the same effect. Ms Heppekausen had testified that she did not see the appellant carrying any papers, nor did she see any papers at the feet of the respondent as contended for by the appellant. He was impressed by the independence of Ms Heppekausen as a witness and took the view that the court could place a reasonably high degree of reliance on her testimony that at no time did the appellant have any paper in his hand on the day in question.
9 The learned Magistrate reviewed the evidence of the appellant, which was to the effect that he had seen the respondent on 20 August to follow up the question of a debt she owed for having stayed at his house; had made three telephone calls to her thereafter and on 14 September had gone to Myer to serve a summons upon her. The learned Magistrate was unimpressed with the appellant as a witness, stressing that when he gave evidence he refused to answer any questions about his criminal record, which the learned Magistrate considered to be a shortcoming, particularly as the provisions of the Restraining Orders Act made the question of any criminal record of the respondent an issue (s 12(1)(h)). The concluding comments of the learned Magistrate were:
"The respondent witness has left me with no other conclusion but to reduce significantly the worth of the witness. In the end I accept the version as put up by Ms Lawler. She said she told him not to contact her. He says he didn't have her address. He had sufficient - and now it is in the evidence -- it is apparent
(Page 7)
- that he had sufficient for the purpose of service of documents and he says that it was what he was there for at the time.
There is no corroboration of that in the evidence, and in fact the evidence of Heppekausen goes the other way. The proposition put up by the respondent was that she was trying to cut off his action for the money. As I have already indicated in the terminology of the Criminal Code in section 338E basically if it's a lawful action well, that's a good defence. Now, I don't accept that proposition from the respondent.
Further, there is evidence from her that he rang on 16th September after the service of the restraining order which indicates his degree of contact he is prepared to pursue despite the law. I am satisfied on the necessary elements for the purpose of making a violence restraining order and the restraining order which had been made in the past will now basically be confirmed."
10 Reference to the transcript of proceedings before the learned Magistrate indicates that when the respondent gave evidence she stated that on 14 September at about 4.45pm the appellant had come to Myer Garden City to the Estee Lauder counter and chased her around the counter and tried to grab her. This, she said, made her very frightened. When she was cross-examined by the appellant it was put to her that he had legal authority to serve a summons on her and that she had folded her arms and would not accept it. Her response was that she did not fold her arms and did not realise that there was anything he had given her, adding "well you obviously didn't".
11 The witness Coralie Heppekausen was asked by the appellant whether his behaviour was consistent with serving a summons on a person and she denied that it was. She said "I think not, just because you were in the private staff area …" and added "Not at any time did I see you with a piece of paper … I wasn't aware that there was anything to do with a piece of paper".
12 The appellant testified that on 14 September he had gone to the workplace of the respondent in an endeavour to hand her a summons. He claimed that when the respondent saw him she "basically took off" but he told her he had some paperwork he needed to serve upon her, as a result of which she said she was not taking anything and walked away. According to him she ducked into a private staff area behind a curtain and
(Page 8)
- when she came out of that area he said to her "Barbara, here's a summons for recovery of the moneys that you owe me", whereupon she refused to take it so he put the summons at her feet on the floor. According to his evidence she folded her arms and said "I'm not taking anything off you", following which a manager appeared, to whom the appellant said that he was there for the purpose of serving Ms Lawler with a summons. According to the appellant, the manager had said "That's OK then, if that's what you were doing". He testified that he left the area and looked back to see the respondent pick the document up and peruse it.
13 The respondent cross-examined the appellant and in the course of so-doing asked him whether he had ever been in trouble with the police. The appellant answered that he had and when asked what for, replied that he did not think that question to be relevant. The learned Magistrate pointed out to the appellant that the court could take any criminal record of a respondent into question and asked what the respondent had been convicted of. He replied by saying that he had been convicted of "some criminal matters". In answer to further questions put by the learned Magistrate, the appellant said:
"The basic question is have you ever been convicted of any criminal offences? --- I've answered yes to that, your Honour.
You have or haven't? --- I have.
What are they? --- I don't wish to disclose them if -- because I don't believe they're relevant.
…
Have you ever been imprisoned for anything? --- No, I haven't, your Honour."
14 As I have already pointed out, the learned Magistrate found against the appellant on the question of credibility by reason of his refusal to answer any questions in relation to his criminal record. The learned Magistrate said that he had "basically refused to answer any questions" which was a shortcoming in his presentation as a witness. Whilst it is true that the appellant did refuse to discuss in any detail the criminal record that he had, it will be seen from the questions and answers to which I have referred that there was an acknowledgement that he had a criminal record, but one which had never led to any period of imprisonment.
(Page 9)
15 After the hearing at the Court of Petty Sessions the appellant obtained an affidavit from the business manager at Myer Garden City, Mr C M Samios. He swore in that affidavit (on 1 December 1999) that on the afternoon of 14 September 1999 he was walking towards the Estee Lauder counter when he heard a commotion. His words were:
"I saw a man holding a piece of paper follow Barbara Jane Lawler behind the Estee Lauder counter. She was yelling and attempting to get away from the man. She went into the beauty room enclosure, behind the counter, and closed the door behind her. The man then placed the piece of paper on a stool that was near the door to the beauty room and proceeded to walk away.
I confronted the man and asked "Can I help you?". He said that he was serving a summons and walked away towards the undercroft carpark entrance of Myer.
I then walked behind the counter to look at the paper on the stool. It appeared to be a legal document with a court stamp affixed. Barbara Lawler then emerged from the beauty room. She picked up the document from the stool. I asked if she was alright and commenced a conversation with her.
As we spoke she tore up the document and threw the pieces in the rubbish bin nearby."
16 At the hearing of this appeal I questioned the appellant as to why it was that he had not previously located Mr Samios and why he had not called him at the proceedings in the Court of Petty Sessions. He responded that he did not know of his existence prior to the evidence being given before the learned Magistrate and had only been able to find him afterwards. This would seem to be consistent with the evidence of Ms Heppekausen, who referred in her evidence to "one of the managers" being right by. In any event, I am prepared to accept that the appellant had no way of knowing prior to the proceedings in the Court of Petty Sessions that the respondent would deny that she was served with a summons on 14 September 1999. Nor did he know that Ms Heppekausen would confirm the respondent's testimony in that regard.
17 The evidence contained within the affidavit of Mr Samios is clearly very important evidence, because had it been before the learned Magistrate, his Worship may have found differently upon the issue of the lawfulness of the applicant's actions on 14 September 1999 at the Myer store. Indeed, the evidence of Mr Samios being seemingly entirely
(Page 10)
- independent, it seems unlikely that the learned Magistrate would have found, as he did. Certainly, he would not have concluded that there was "no corroboration" of the appellant's evidence in that regard.
18 The test for admission of fresh evidence in civil proceedings has traditionally been that set out in Greater Wollongong Corporation v Cowan (1995) 93 CLR 435 at 444:
"If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to produce the evidence which the defeated party failed to adduce at the first trial."
19 In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 the High Court (at 140) made these observations in relation to the passage from Greater Wollongong Corporation:
"The words 'rarely, if ever' in the above passage leave open the possibility of exceptional circumstances justifying a departure from the general rule even in the class of case to which the general rule is directed. It is not, however, necessary to pursue that aspect of the matter for the purposes of the present case. Nor is it necessary to consider whether the somewhat obscure qualification expressed by Dixon CJ in the words 'or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary' represents other than an illusory relaxation of the primary test (ie 'reasonably clear that … an opposite result would have been produced').
(Page 11)
- As the above quotation makes plain, the general rule formulated by Dixon CJ is directed to the ordinary case where all that is involved is that relevant fresh evidence has come to the notice of the unsuccessful party after the trial. It is not directed to the case where the trial itself has miscarried 'through misdirection, misreception of evidence, wrongful rejection of evidence or other error' or to a case of 'surprise, malpractice or fraud'. Such cases cannot properly be seen as mere cases of 'fresh evidence'. Nor can a case where the material constituting the fresh evidence was unknown to the unsuccessful party by reason of misconduct on the part of the successful party, such as an admitted failure to comply with the requirements of the trial court's order for discovery of documents."
20 In the present case, I am of the view that if the evidence of Mr Samios had been available before the learned Magistrate and had been adduced, it would have been highly likely that an opposite result would have been produced. The learned Magistrate relied very heavily on the testimony of the respondent and Ms Heppekausen to the effect that no summons was ever produced by the appellant. Mr Samios makes it quite clear that a court document of some sort was produced and that she had torn it up. This was compelling evidence to support the testimony of the appellant.
21 Because the learned Magistrate saw the events of 14 September as the key to the resolution of the issue before him, it is my view that the fresh evidence which is now available dictates that there should be a re-hearing of the application for the restraining order. In my view the appeal of the appellant should therefore be allowed and the violence restraining order made by the learned Magistrate on 8 November 1999 quashed. The matter should be remitted to the Court of Petty Sessions for re-hearing before a different Magistrate.
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