YAZARLOO -v- ASSADI [2003] WASCA 326

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 326
Case No:	SJA:1087/2003	Heard:	10 DECEMBER 2003
Coram:	SCOTT J	Delivered:	23/12/03
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MEHRAN YAZARLOO FARZANEH ASSADI
Catchwords:	Criminal law and procedure Appeal Violence restraining order Order may be made where there is a fear that a violent personal offence may be committed Turns on own facts
Legislation:	Restraining Orders Act 1997, s 11, s 12
Case References:	McKenzie v Picken [2002] WASCA 113 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : YAZARLOO -v- ASSADI [2003] WASCA 326 CORAM : SCOTT J HEARD : 10 DECEMBER 2003 DELIVERED : 23 DECEMBER 2003 FILE NO/S : SJA 1087 of 2003 BETWEEN : MEHRAN YAZARLOO

Appellant

AND

FARZANEH ASSADI

Respondent

Catchwords:

Criminal law and procedure - Appeal - Violence restraining order - Order may be made where there is a fear that a violent personal offence may be committed - Turns on own facts

Legislation:

Restraining Orders Act 1997, s 11, s 12

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr G W Massey

Respondent : Mr A J Maughan

Solicitors:

Appellant : Gary Massey & Associates

Respondent : Maughan & Leach

Case(s) referred to in judgment(s):

McKenzie v Picken [2002] WASCA 113

Case(s) also cited:

Nil

(Page 3)

1 SCOTT J: On 28 July 2003 Woods SM, in the Court of Petty Sessions at Perth, made a violence restraining order against the appellant.

2 An interim violence restraining order had been issued on 23 April 2003 and her Worship ordered that it should continue for a period of two years, as provided for in the Restraining Orders Act 1997.

3 The appellant has appealed against the making of that order on the following grounds:

"1. The applicant have leave to appeal from the whole of the decision of Her Worship Ms Woods SM given on 28 July 2003 in the Court of Petty Sessions at Perth whereby the Learned Magistrate found the complaint proven and granted the defendant the restraining order, the grounds for appeal being as follows:

a) The Learned Magistrate erred in fact and in law in making a violence restraining order against the applicant because:

i) The evidence from the respondent was not sufficient to justify a finding that the applicant was a person who was likely to:

(a) commit a violent personal offence against the respondent;

(b) behave in a manner that would reasonably have been expected to cause the respondent fear that the applicant would commit such an offence; or

ii) The evidence of violence from the respondent was evidence of violence which occurred on two or three specific occasions during the marriage, all of which was denied by the applicant, and of violence which occurred on 3 November 2002.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yazarloo v Assadi

Details

AGLC: Yazarloo v Assadi [2003] WASCA 326
Case: [2003] WASCA 326
Decision Date: 23 DECEMBER 2003

CaseChat Overview and Summary

The case of Yazarloo v Assadi involved an appeal against the making of a violence restraining order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The appellant, Yazarloo, sought to appeal a decision by a magistrate to issue a violence restraining order against him. The order was made after the respondent, Assadi, alleged that Yazarloo had committed acts of domestic and personal violence against her. The court of appeal was required to determine whether the magistrate had correctly exercised their discretion in making the order.

The legal issues before the court were whether the magistrate had a sufficient basis to form a fear that a violent personal offence would be committed, and if the order was appropriate under the circumstances. The court examined the evidence presented, the statutory criteria for making such an order, and whether the magistrate had acted within their powers. The court held that the magistrate had a reasonable basis for forming a fear of violence, given the evidence of past incidents and threats. The decision to make the order was found to be within the magistrate's discretion, considering the need to protect the respondent.

Consequently, the court dismissed the appeal, affirming the magistrate's decision. The reasoning was that the magistrate had correctly considered the statutory criteria and exercised their discretion appropriately. The court found that the evidence supported the magistrate's conclusion that there was a fear of a violent personal offence being committed. The appeal was dismissed, and the violence restraining order remained in effect.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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