Anderson v Judges of the District Court of New South Wales

Salient Facts 7Until the subject Application arose, DW resided with SA and JM at Ungarie, NSW. SA separated from the natural father, JM-W, some 7 months after DW's birth. JM-W moved to Queensland where he still resides. 8On 15 October 2012, SA and JM presented at West Wyalong District Hospital with DW with indications that something was wrong with his right arm. A history was provided that DW was found with a swollen and deformed right arm when he woke from his sleep. The history given to medical staff was that the injury had happened during sleep. An X-ray was taken of the indicated area revealing a spiral fracture through the mid and distal shaft of the right humerus. The injury was acute (recent) without any periosteal reaction or healing callus. The radiology report noted that a spiral fracture of the humerus is an unusual injury in an infant and should be correlated with the history/mechanism as non-accidental injury as one of the differential diagnoses. 9A doctor in West Wyalong contacted the Department of Community Services (DOCS) with concerns that a cause for the fracture was not clearly explained. DW was referred to Wagga Wagga Base Hospital (WWBH) by DOCS and was presented there on 16 October 2012, by SA, JM and SA's mother. SA provided a history of DW being well on the morning of 15 October 2012. He was put down for a nap and awoke crying. When SA went into his room she noticed that his right arm was swollen and looked deformed. SA said she believes this injury occurred during sleep. JM's history was that he saw DW roll onto his side although it was not clear whether this occurred prior to or during sleep. JM said he believes the fracture occurred at the time of rolling but that DW did not appear distressed or in pain at the time. JM said this was the first time he had seen DW roll like this. No-one else was at the home on 15 October, 2012. 10The Orthopaedic Registrar saw DW on 16 October 2012 at WWBH. Doctor Preddy, a Consultant Paediatrician, examined him on 17 October 2012. A full blood count, electrolytes, urea, creatinine, liver function tests and coagulation studies were within normal range. Doctor Preddy's opinion was that the spiral fracture would have resulted from a significant twisting or rotational force being applied to the right arm. The history given by SA and JM does not provide a clear cause for the injury. The carer's report different mechanisms for the injury. JM reported an injury may have occurred when DW rolled onto his side. SA said that the injury was sustained during sleep and was unwitnessed. Doctor Preddy said DW was observed in hospital to roll both ways, therefore, the proposed mechanism by JM is not out of the question. However, it would be highly unlikely that this would cause him to fracture his arm unless he had a medical predisposition to fracture. In Doctor Preddy's view, the infant did not cause this fracture to himself. 11Doctor Preddy said that the bruising to shoulder and forehead would have been the result of minor blunt force and is an unusual injury to a non-ambulant infant. He concluded that the combination of bruising, an acute spiral fracture and additional bone trauma as noted in the bone scan was very worrying and suggestive of abuse. He concluded by suggesting that the child was not safe in this environment and that DOCS would need to do a thorough secondary assessment. 12Both SA and JM were interviewed at some length by Detective Mark Beltrame of Griffith. The interviews speak for themselves, however, it is clear that SA and JM deny any knowledge of the application of force, intentional or otherwise, to DW. No criminal charges have been laid, or contemplated, against either party. 13Section 16 of the Act sets out the requirements about which a Court is to be satisfied before making an ADVO, relevantly in the present case, as follows - (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) ... being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (emphasis added) (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) ... 14To be clear about it, the Court may make an ADVO if satisfied on the balance of probabilities, domestic relationship in this case being beyond question, that Detective Beltrame has reasonable grounds to fear and in fact fears, the commission of a personal violence offence (as defined) upon DW (a child) by either SA or JM and that such conduct is sufficient to warrant the making of an Order. To be equally clear, it is not necessary for the Applicant to prove that either Defendant actually did anything to DW. 15The Court of Criminal Appeal considered this question in Gianoutsos v Glykis [2006] NSWCCA 137; [2006] 65 NSWLR 539 - a decision dealing with the predecessor of section 16 of the Act, namely, section 562A(1) of the Crimes Act 1900 - the terms of which are virtually identical. The case came before the CCA by way of a case stated from the District Court. 16The appellant originally applied for an Apprehended Personal Violence Order ("APVO") against the respondent alleging that she was the author of a series of anonymous emails he received which proved distressing to both himself and his wife. 17The matter was determined in the Local Court and an interim APVO was granted in February 2004. The application was heard over four days in September and December 2004. Ms Glykis appeared in person at the hearing. The evidence at the Local Court included oral evidence from the appellant, his wife, Associate Professor Peter Collins (Head of the Linguistic Department of the University of New South Wales), Gail Kay (the appellant's receptionist) and the respondent. Numerous documents were tendered including emails the respondent admitted she had created and sent. The matter was heard before a Magistrate at first instance who determined to make the order. His Honour found that the emails were of a harassing nature and, having regard to the evidence, including the expert evidence, found that they had been authored by the respondent. Ms Glykis appealed to the District Court where, after receiving limited further evidence, Puckeridge DCJ upheld the appeal. 18In the stated case, his Honour posed the question: "Did I err in considering that it was necessary for me to be satisfied that the Appellant engaged in conduct amounting to harassment or intimidation?" McClellan CJ at CL answered in this way (at [56]): As I have indicated. s 562A(1) of the Crimes Act provides that a court may make an APVO if it is satisfied on the balance of probabilities that a person "has reasonable grounds to fear, and in fact fears", the engagement of that other person in conduct amounting, inter alia, to harassment or intimidation and the conduct is sufficient to warrant the making of the order. Accordingly, the inquiry which the court must undertake is whether the complainant has reasonable grounds to fear and in fact fears the engagement of the other person in the relevant conduct. Before coming to that conclusion it is not necessary for the court to determine that the other person has in fact engaged in that conduct but, only, that the complainant has a fear which is based on reasonable grounds. Of course, if the court was satisfied that the other person had not conducted him or herself in the manner which the complainant alleged this would be relevant to a consideration of whether or not the court should be satisfied in the particular case and may prove fatal to the application. However, by confining the relevant question to whether or not the other person had actually sent the emails, Puckeridge DCJ, in my opinion, was diverted from the inquiry which the section requires. 19I next turn to consider the 'reasonableness' of the grounds to fear held by Detective Beltrame. Justice Howie reviewed this question in Ryan Kapral v Federal Agent Joshua Bunting [2009] NSWSC 749, in a case dealing with the Crimes (Forensic Procedures) Act, 2000. The legislation is obviously different but the principles are, in my view, equally applicable. His Honour said (at [33]): The Magistrate, after reviewing the relevant evidence relied upon against the plaintiff, considered the law relating to the distinction between a suspicion and belief. He referred to the decision in International Finance Trust Company Limited v NSW Crimes Commission [2008] NSWCA 291 and quoted the following paragraphs from the judgment of Allsop P: [110] In George v Rockett (1990) 170 CLR 104 the High Court considered s 679 of the Criminal Code (Qld) which provided that if it appeared to a justice that "there are reasonable grounds for suspecting or believing" (relevant matters) the justice may issue a warrant directing a police officer to take steps to enforce the law. The High Court made plain that when legislation took this form the court's task was to be satisfied that there were reasonable grounds for the suspicion but it was not necessary for the court itself to entertain the relevant suspicion. Sufficient facts must exist to induce the relevant suspicion in the mind of a reasonable person (p 112). "It must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist." [111] The High Court also considered the nature of the facts required to be established to demonstrate reasonable grounds for a suspicion or belief. "Suspicion" and "belief" are different states of mind. "Suspicion" is "a state of conjecture or surmise where proof is lacking" (Hussien v Chong Fook Kam [1970] AC 942 at p 948). The facts sufficient to found a suspicion may be quite insufficient to ground a belief. 20His Honour continued (at [40] - [42]): [40] As the magistrate himself understood, certain facts may not support a conclusion that there are reasonable grounds for a suspicion that the inferred fact exists. But the addition of further facts might provide such grounds, yet not support a finding of reasonable grounds for a belief in the existence of the inferred fact. The addition of other facts may however provide a support for a finding of reasonable grounds for belief that the inferred fact exists, yet not support a finding that there is no other reasonable conclusion to be drawn from the ascertained facts other than that the inferred fact exists. This last state of mind is proof, or conviction, of the existence of the inferred fact. [41] There is no bright line between the differing conclusions that may be drawn from the facts considered and minds might differ as to what conclusion should be drawn. The requirement that there be reasonable grounds for whatever state of mind is being considered is to remove the extravagant or excentric findings that might be made by a particular individual. [42] Further there is a subtle distinction that is drawn between the various states of mind as to the existence of the concluded fact. In George v Rockett, in the passage part of which was referred to by the Court of Appeal in the decision referred to by the Magistrate, the judgment goes on to consider "belief" as distinct from "suspicion". It was stated at 116: The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. 21I put forward the following propositions which can be extracted from decisions considering how a person required to have "reasonable grounds" either to suspect or believe certain matters and then seek to adapt them to section 49 of the Act:

• When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts sufficient to induce that state of mind in a reasonable person: George v Rockett (supra) at 112.
• There must be some factual basis for either the suspicion or the belief: George v Rockett (supra) at 112; the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540, per Smart AJ, Spigelman CJ and Simpson J agreeing);
• "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists; the assent of belief is given on more slender evidence than proof": George v Rockett (supra) at 116;
• "What constitutes reasonable grounds for forming a suspicion or a belief must be judged against what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ.
• Whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the Police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 714 per Kirby P (Meagher and Sheller JJA agreeing);
• The information acted on by the Officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the Officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it;
• "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 at [46] per Spigelman CJ (Allsop P and Hodgson JA agreeing). 22In this particular case, the evidentiary materials seem to me to establish a number of propositions directly or by reasonable inference: (a)On 15 October 2012, DW was at home with SA and JM; (b)DW, SA and JM were the only people in the home at all material times; (c)DW was put down for a sleep; (d)When DW woke his right arm was observed to be swollen and looked deformed; (e)An X-ray of DW's arm at West Wyalong Hospital revealed a spiral fracture through the mid and distal shaft of the right humerus; (f)The injury was acute (recent) without any periosteal reaction or healing callus; (g)The radiology report noted that a spiral fracture of the humerus is an unusual injury in an infant and should be correlated with the history/mechanism as non-accidental injury as one of the differential diagnoses; (h)Doctor Preddy, a Consultant Paediatrician, in summary, expressed the view that the history given by SA and JM does not provide a clear cause for the injury. The carers report different mechanisms for the injury; (i)Despite an ability to roll both ways as observed of him in WWBH, it would be highly unlikely that this would cause him to fracture his arm unless he had a medical pre-disposition to fracture. The infant did not cause this fracture to himself; (j)Doctor Preddy's opinion that bruising to shoulder and forehead would have been the result of minor blunt force and is an unusual injury to a non-ambulant infant. He concluded that the combination of bruising, an acute spiral fracture and additional bone trauma as noted in the bone scan was very worrying and suggestive of abuse. He concluded by suggesting that the child was not safe in this environment and that DOCS would need to do a thorough secondary assessment. 23All of these matters, when considered together, are in my opinion capable of giving rise to reasonable grounds by the Applicant to believe that a domestic violence offence had recently been committed against the person (DW) for whose protection an Order would be made. Of course there may be other inferences arising from the facts and the available inference falls short of proof, or a conviction, of their involvement in any offence. 24Pursuant to section 16 of the Act, I am satisfied on the balance of probabilities that the Applicant (on behalf of DW) has reasonable grounds to fear and in fact fears the commission by another person of a personal violence offence against (DW) and, in my opinion, that conduct is sufficient to warrant the making of an Order. 25I make Final Orders for a period of 12 months in terms of Mandatory Orders 1 (a), (b) and (c), and Additional Orders 4 and 6. Order 4 is to be in the following terms: The Defendant must not go within 50 metres of the premises at which the protected person may from time to time reside unless in accordance with any Parenting Order under the Family Law Act 1975. Order 6 is to be in the following terms: The Defendant must not approach or contact the protected person by any means whatsoever except through the Defendant's legal representative or as authorised by a current Parenting Order under the Family Law Act 1975. Magistrate P.S. Dare SC West Wyalong 28 March 2013

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