Yazarloo v Assadi

Case [2003] WASCA 326


YAZARLOO -v- ASSADI [2003] WASCA 326



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 326
Case No:SJA:1087/200310 DECEMBER 2003
Coram:SCOTT J23/12/03
11Judgment Part:1 of 1
Result: Appeal dismissed
B
PDF Version
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

          (c) that a violence restraining order was appropriate in all the circumstances.


        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.

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Yazarloo v Assadi [2003] WASCA 326
Case
[2003] WASCA 326
Decision Date

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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