Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

House v The Queen (1936) 55 CLR 504

Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

1 This is an appeal against the decision of Mr Malley SM given in respect of complaint RAR607/04 in the Court of Petty Sessions at Armadale on 2 March 2005. The matter arises under the provisions of the Restraining Orders Act 1997 (WA).

2 The learned Magistrate had before him an application for a violence restraining order made on behalf of Helen Maree Tames who was formerly married to the appellant, Paul Clarke Tames. The order applied for was granted by the learned Magistrate.

3 On 21 April 2005 Templeman J made an order for leave to appeal in favour of the appellant on certain grounds, namely, first that the learned Magistrate erred in applying a subjective test in relation to s 12(1)(b) of the Restraining Orders Act in that he granted the order on the basis that the respondent "responds in a far more sensitive manner than one might expect in normal circumstances", and second, that the learned Magistrate erred in refusing to allow the appellant to adduce evidence relating to the respondent's credibility. Various particulars are set out in support of the second ground. I will return to the grounds of appeal later.

4 I have before me various materials bearing upon the matters in issue. The appellant has submitted to the Court an appeal book containing the order for leave to appeal dated 21 April 2005 and certain related documents, including his own affidavit sworn 18 April 2005. In the course of the hearing a copy of the application for a violence restraining order dated 16 November 2004 and a copy of an interim order made on the same date were handed to me.

5 The appeal book contains the transcript of proceedings in the Court of Petty Sessions concerning the subject application on 16 November 2004, 28 February 2005 and on 2 March 2005. The appeal book contains also the transcript of certain proceedings in the Court of Petty Sessions at Fremantle which took place 12 months earlier. On that occasion the learned Magistrate was dealing with an application pursuant to s 49 of the Restraining Orders Act. There was a ruling in favour of the appellant which led to a restraining order previously granted in Victoria being dismissed.

6 For ease of reference I will refer to the former transcript as the transcript of the "subject hearing". I will refer to the latter transcript as the transcript of the earlier Fremantle hearing.

7 It emerges from the transcript of the subject hearing that the appellant and the respondent married in 1999 but separated in circumstances of acrimony 4 years later. This has given rise to proceedings in the Family Court and to proceedings in Victoria and in this State concerning restraining orders.

8 However, as a consequence of the earlier Fremantle hearing, the parties reached the position in early 2004 that neither party was subject to any restraining order. Consent orders were made in the Family Court which allowed for the appellant to have access to the children of the marriage. This meant that the appellant's parents would collect the children from McDonalds on a Thursday evening and return them 24 hours later, with provision for access also on alternate weekends.

9 On 16 November 2004 the respondent, Helen Tames, applied for a violence restraining order per complaint AR607/04. The details as to the appellant's behaviour provided by Helen Tames in the relevant form were:

"Continually drives into driveway. Tried to run my car off Leach Highway twice. Breached VRO 12 times. Threats to kill myself and my family. Locked me in the house twice."

10 I will call these the complaint details. I note in passing that there is a question as to whether the learned Magistrate addressed or made findings in relation to the complaint details in a satisfactory manner. I note in passing also that in a general sense, particularly in regard to the item, "breach VRO 12 times and locked me in the house twice," the complaint purports to bring into issue matters that occurred prior to the earlier Fremantle hearing which, as I have said, took place and was concluded on 19 February 2004.

11 I say that because the evidence before me indicates that the parties separated in August 2003. On the respondent's case, certain events occurred between August 2003 and the conclusion of the earlier Fremantle hearing which were said to justify the grant of a restraining order. Some of these incidents had a bearing upon the making of a restraining order against the appellant in Victoria and the subsequent dismissal of that order at the earlier Fremantle hearing on 19 February 2004.

12 It was against this background that the respondent obtained an interim order at the hearing on 16 November 2004. The effect of the interim order was that the appellant was not to behave in an intimidatory or offensive manner towards the person protected; that is to say, Paul Tames was not to behave in an intimidatory or offensive manner towards the person protected, being Helen Tames.

13 Helen Tames (being the applicant for relief in the Court of Petty Sessions, but the respondent to the appeal proceedings before me) proceeded to present evidence in support of her case at the subject hearing for a final order on 28 February 2005. Her case took the form of testimony from herself and from a supporting witness Ms Famlonga. She was represented by counsel. The appellant (her former husband) represented himself.

14 It was made clear to the learned Magistrate at the subject hearing that the application for a violence restraining order related essentially to events subsequent to the earlier Fremantle hearing; that is to say, it related to events that were said to have occurred essentially during the course of 2004. This was said by counsel for Helen Tames notwithstanding that, as I have indicated, the application form containing the complaint details, dated 16 November 2004, appeared to bring into issue matters preceding the earlier Fremantle hearing.

15 At the subject hearing, the respondent, Helen Tames, gave evidence of various events which were said to demonstrate a pattern of intimidatory conduct on the part of the appellant, Paul Tames, sufficient to justify the grant of a restraining order.

16 I pause to note that the appellant, representing himself at the subject hearing, proceeded to cross-examine his former wife and her witness, albeit subject to supervision by the learned Magistrate in the manner expressly provided for by s 44C of the Restraining Orders Act.

17 The evidence from these witnesses was rather discursive. It ranged across the relationship between the parties while married and drew attention to the circumstances following their separation in August 2003. However, bearing in mind that counsel for Helen Tames adopted the position at the subject hearing that the application for a violence restraining order involved essentially events occurring in 2004 (that is, subsequent to the earlier Fremantle hearing) it is desirable that I look closely at the respondent's evidence bearing upon that period.

18 As I review the evidence of the respondent, Helen Tames, at Appeal Book pages 35 to 43, being her evidence-in-chief, it seems that, in essence, she relied upon the following allegations that were said to be referable to events occurring in 2004, after the earlier Fremantle hearing: (1) on two occasions her former husband tried to run her off the road on Leach Highway after she had dropped the children off; (2) having telephoned the appellant, her son reported back to her that his father had said he would kill her; (3) the appellant acted aggressively on one occasion at the Mother Hen services at Point Walter; (4) on 3 October 2004 he drove behind her and she saw him making a pulling the trigger motion; (5) on 13 October she moved into a new house and he pulled into the driveway and tooted his car horn; (6) on Saturday night, 13 November at 9pm he came knocking on her front door and said he wanted to see his children.

19 As to the last matter, Helen Tames said that she activated the surveillance alarm. At the suggestion of the police, she then stayed at Mandurah.

20 The respondent conceded under cross-examination that her husband had never been violent towards her. She conceded that the Victorian restraining order was dismissed at the earlier Fremantle hearing.

21 I pause here to note that if the entirety of her evidence was accepted as to the incidents underlying her specific allegations, and this was accompanied by findings that lent colour to the notion that the acts complained of were of an intimidatory or offensive quality, then there might well have been a basis in the respondent's evidence for orders of the kind applied for to be made. In other words, as will appear when I come to the relevant statutory provisions and decided cases, it is sufficient to establish that there is intimidatory or offensive conduct. It is sufficient if reasonable apprehensions are aroused. There need not be actual acts of violence.

22 However, the central issue before me is whether the learned Magistrate sufficiently reviewed the evidence before him, having regard to the complaint details and the relevant principles, and arrived at findings that were sufficient to substantiate the making of a violence restraining order in final form.

23 The appellant contested the allegations against him and gave evidence at the subject hearing on his own behalf. He was cross-examined by counsel for the respondent (his former wife). In the course of the subject hearing the appellant indicated that he wished to place some reliance upon the manner in which the earlier proceedings were dealt with, including reference to certain of the allegations that were before the Fremantle Court on that occasion and found not to be substantiated (as indicated by the dismissal of his former wife's complaint). The appellant did not express himself clearly but it seems that his request to cross-examine his former wife about such matters was made upon the basis that the earlier events might have a bearing upon the credibility of his former wife.

24 It appears from the transcript of the subject hearing that the learned Magistrate was of the view that the matters the subject of the proposed cross-examination had been dealt with previously. They did not bear upon the application before the Magistrate. As to that, I draw attention in particular to a passage of the transcript of the hearing on 28 February 2005 at mid-page 80 of the Appeal Book. Mr Tames was referring to the earlier Fremantle hearing and the 12 allegations that were said to evidence breaches of the previous restraining order made in Victoria. Although his remarks are somewhat discursive, it is clear that he had in mind that such matters should be canvassed. The learned Magistrate responded to that in these terms:

"Well, they are not before the Court, so that's the end of the matter. Yes, thank you. Take a seat."

25 The learned Magistrate's response was peremptory. He made it clear that he was not minded to entertain evidence or cross-examination bearing upon that aspect of the matter. His thinking in that regard is echoed again in the oral reasons for judgment that he gave on 2 March 2005. He said earlier in those reasons:

"There have been allegations of threatening behaviour and various VRO applications by the applicant since that time. It's fair to say the relevant period for this application is from February 2004, as, in my view, once previous applications have been made and dealt with in whatever manner then realistically they are of no particular evidentiary value to this court other than perhaps to give an indication of behaviour, but certainly - really the foundation of the application has to be subsequent to ... February 2004."

26 Counsel for the respondent Helen Tames had adopted the same view as to the period in issue. In her closing address, she summarised her clients case in this way. The Court needed to focus on events of last year, that is, 2004. She went on to say that her client had given evidence that Mr Tames had spat upon her when she was given the children back. There was evidence that one of the children was having phone contact with Mr Tames and was put up to stating to his mother during the conversation, "My daddy is going to kill you".

27 Another incident allegedly occurred in October when her client was driving and Mr Tames drove up behind her and motioned as if firing a gun towards her. Her client had also given evidence of Mr Tames driving into her driveway or driving past and hooting his horn. As a result of this ongoing behaviour, the police were of the opinion that surveillance cameras and a duress alarm should be installed in the house. That was done.

28 Counsel for Helen Tames submitted that the main incident which occurred was on 13 November, being a Saturday night. Her client gave evidence that Mr Tames knocked on her door or demanded to be let in at 9 o'clock at night. He wanted contact with the children. The duress alarm was pressed. The police attended and advised the respondent to leave the metropolitan area which she did. She came back and then went straight to the Court where she obtained the interim restraining order dated 16 November 2004.

29 Under the applicable legislation, counsel submitted, the criteria for a restraining order has been broadened out, particularly in relation to someone behaving in an ongoing manner. It was said that an order can be made if the Court is satisfied that the applicant reasonably fears that the person will commit an act of abuse.

30 Counsel said that from the evidence her client had given, which was consistent and credible bearing in mind that it was a very emotional situation for her client, and the fact that she was being cross examined in an often aggressive or belligerent manner by Mr Tames, there was enough to suggest an ongoing pattern of emotional abuse and intimidating behaviour. For example, driving up behind somebody and motioning as if you had a gun and going to somebody's house at 9 o'clock at night.

31 Counsel conceded that once the interim order was made, the behaviour had not continued. However, Mr Tames, it was said, had made use of one avenue available to him, which was communication through a legal representative, to continue the abuse and aggression towards counsel's client and the legal centre involved in the matter. Reference was made to evidence given by the paralegal handling the case, Ms Famlonga.

32 Counsel submitted that this was a case where there was reasonable fear on the part of the client that an act of abuse would be committed against her. It would be appropriate in these circumstances for the Court to intervene.

33 The learned Magistrate provided oral reasons for decision in relation to the matter before him on 2 March 2005. In the course of doing so he noted that the respondent had applied for and obtained an interim order on 16 November 2004. He went on to say, as I have noted, that the "relevant period" of the application before him was from 2004 as, in his view, once previous applications have been made and dealt with in whatever manner then "realistically they are of no particular evidentiary value to this court" other than to give an indication of behaviour.

34 The learned Magistrate then went on to summarise the nature of the allegations before him, namely that on a number of occasions the appellant tried to force the respondent off the road when driving and in October 2004 followed her and pointed a hand in the form of a gun motion. He went on to describe some further allegations which were said to have arisen in the course of the access arrangements.

35 It is important to note that the learned Magistrate in this part of his oral reasons, was simply summarising in a narrative way the nature of the allegations that had been made. He did not in any way purport to be accepting or making findings that the facts and matters the subject of the allegations had actually occurred. Indeed he noted, and I quote, "It's fair to say there is no corroborative evidence of these events". He said also that some of the evidence was rather vague.

36 Having summarised the allegations, the learned Magistrate then proceeded to arrive at the end point of his reasoning. He said that having seen the respondent, he was of the view that she was a very emotional person "who responds in a far more sensitive manner than one might expect in normal circumstances."

37 However, he went on to say that that might be simply a symptom of her husband's past behaviour. He then observed that the appellant appeared to have acted aggressively and was a dominating personality. He concluded that the appellant's behaviour on 13 November evinced a desire to confront the respondent.

38 The learned Magistrate finished by saying that he was of the view that the demeanour and the prospect of ongoing contact led to the conclusion that, if not restrained, Mr Tames would feel the need to confront the applicant in an intimidatory way. The learned Magistrate therefore held that it was appropriate that the interim order previously made on 16 November 2004 be made final. It was quite apparent from his reasoning that he placed a good deal of weight upon the demeanour of the appellant and the way in which he had conducted himself in the Court proceedings.

39 Put shortly, the learned Magistrate appeared to harbour certain reservations about the credibility of the respondent as possibly an over-sensitive person but, nonetheless, without making any findings as to the complaint details or the 6 specific allegations mentioned in my summary, proceeded to rule against the appellant. The indications were that this ruling was based not upon what the appellant was alleged to have done, or upon the effect of his conduct upon his former wife, but upon an assessment of the appellant's character and the unfavourable impression the appellant had created while conducting his case in Court.

40 Before resolving the matters in issue it will be useful to look briefly at some of the statutory provisions and legal principles bearing upon an appeal of this kind.

41 Appeals from Courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt II of the Criminal Appeals Act 2004 (WA). By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage has occurred it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

42 By s 39 of the Criminal Appeals Act an Appeal Court must decide the appeal on the evidence and material that were before the lower Court but this does not prevent consideration of any evidence that the lower Court refused to admit. By s 40 an Appeal Court may admit any other evidence. A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226.

43 Section 11A of the Restraining Orders Act provides that a Court may make a violence restraining order if it is satisfied that the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person or a person, seeking to be protected reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected and that making a violence restraining order is appropriate in the circumstances.

44 Section 12 deals with matters to be considered by the Court. When considering whether to make a violence restraining order in the terms of the order, a Court is to have regard to the need to ensure that the person seeking to be protected is protected from acts of abuse and the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will have committed against him or her an act of abuse.

45 By s 3 an act of abuse means an act of family and domestic violence or an act of personal violence. By s 6, an act of family and domestic violence is defined to mean one of various acts that are then set out, including that a person behaves in an ongoing manner that is intimidating, offensive or emotionally abusive towards another person with whom he or she is in a family and domestic relationship.

46 In reviewing these provisions, in regard to the circumstances of the present case, I take account in particular of what McKechnie J said in the case of Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999. His Honour said:

"Section 11a(ii) which I have previously quoted applies both a subjective and an objective test for a Court. Firstly, the applicant must fear that the respondent by reason of his or her behaviour will commit a violent personal offence, that is, a subjective fear in the applicant. Secondly, that fear must be based upon objectively reasonable grounds. In deciding whether the grounds are reasonable the Court can only have regard to admissible evidence. This is self-evident. Inadmissible material does not form part of the evidence and must be treated as if it were never said."

47 In approaching the question of how an Appeal Court should deal with the exercise of a discretionary power, it is useful to look at the classic statement of the position in House v The Queen (1936) 55 CLR 504. The High Court said:

"It is not enough that the judges composing the Appellate Court considered that if they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion.

If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitute for his if it has the materials for doing so.

It may not appear how the primary Judge has reached the result embodied in his order but if upon the facts it is unreasonable or plainly unjust, the Appellate Court may infer that in some way that has been a failure to properly exercise the discretion which the law reposes in the Court of first instance.

In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

48 I must now return to the circumstances of the present case.

49 I begin by saying that one would expect, having regard to the statutory provisions I have mentioned, that the learned Magistrate would have endeavoured to make findings as to whether the complaint details had actually occurred, or, even, as to whether the events underlying the 6 specific allegations had actually occurred. One would expect that the learned Magistrate would then make further findings as to whether, viewed objectively, the subject events could be characterised as intimidatory or abusive and whether, viewed subjectively, they actually had an intimidatory effect upon Helen Tames as the person seeking to be protected.

50 It would not usually be enough to say that the nature of the person complained of seemed to be intimidatory. Indeed, such an approach might suggest that extraneous and impermissible considerations, other than those based upon the evidence and related findings, were being given weight. Indeed, having regard to what was said by the High Court in House's case, such an approach might suggest that the Court had taken account of irrelevant considerations.

51 Moreover, the rules of natural justice generally require that the case against the person complained of be confined to the allegations in the initiating complaint so that the case is not simply based upon arbitrary summations or the personal impressions of the judicial officer as to whether intimidatory conduct may or may not occur. The person complained must be informed of the case against him and be afforded an opportunity to answer the case. It is very difficult to answer an allegation made in general terms that one has an unpleasant or domineering personality, and it is for that reason that the evidentiary system requires that facts be established by findings from which inferences as to past and future conduct can be drawn.

52 It follows then, in my view, that there was an obligation upon the Magistrate to address and make findings as to the complaint details, or, at least, as to the 6 specific allegations. This was especially important in the present case where the respondent's evidence in respect of the period after February 2004, (being the period after the conclusion of the earlier Fremantle hearing) was limited to six rather ambiguous incidents. I note in passing that no physical violence or expressly articulated threat formed part of the allegations save for the hearsay assertion said to have been reported back to the respondent by her son.

53 To my mind, in making findings, the Magistrate was obliged to make findings of the kind envisaged in Wimbridge's case, namely, that the conduct occurred, that it was intimidatory, viewed objectively, and that, viewed subjectively, it had an intimidatory effect.

54 In the end, the learned Magistrate seemed to accept that the respondent, Helen Tames, could be prone to exaggeration due to emotional stress. He did not thoroughly review the evidence or make specific findings in respect of the complaint details or the 6 incidents I have identified, being those which are said to have occurred after February 2004. Indeed he noted, as I have indicated, that there was no corroborative evidence of the events complained of and part of the respondent's case was vague.

55 As indicated by the first ground of appeal, one is left with the impression that the learned Magistrate gave undue weight to the respondent's emotional state and to extraneous factors such as how the appellant conducted himself in Court. In cases of this kind, some weight could possibly be attributed to conduct in Court, such as the repetition of, or refusal to retract a threat established by other evidence, but, for the reasons I have given, great care must be exercised in that regard, especially where a party is unrepresented and possibly flustered by the procedures and restrictions of the courtroom and evidentiary system. I am of the view, in the present case, that the learned Magistrate gave undue weight to what occurred in Court.

56 In the absence of specific findings as to the complaint details or the 6 allegations I have identified, I consider that the reasons given by the learned Magistrate for his conclusion that an order should be made were insufficient and therefore flawed. This amounted to an error of law because the reasons do not make it clear that relevant considerations were relied upon in the form of specific findings as to the matters in issue. The learned Magistrate did not establish that there was a sufficient foundation for the conclusion that a final order should be made.

57 Put shortly, I have come to the view that in the absence of clear findings on the evidentiary issues, the appellant did not receive a fair hearing and is entitled to relief. I express no view as to whether or not the complaint details and any findings relating to the same will be sufficient. That is a matter which may have to await findings being made on the evidence on some future occasion.

58 Thus, I am persuaded that I must uphold the appeal on the first ground. I direct that the final order made by the learned Magistrate be set aside and that the matter be remitted to the learned Magistrate for rehearing

59 I am of the view also that the appeal must succeed on the second ground. The complaint details included reference to the allegations the subject of the earlier restraining order and in any event allegations bearing upon those matters found their way into the evidence. The learned Magistrate himself conceded (while purporting to exclude evidence concerning the earlier matters) that they might give an "an indication of behaviour". It appears that, ultimately, the ruling he made against the appellant turned upon non-specific indications of behaviour. To my mind, all of this brought into issue the earlier matters of controversy.

60 I am of the view that the appellant was therefore not treated fairly, for the effect of the Magistrate's stance was to rule out any opportunity to inquire into those earlier matters and to test the respondent's credibility. Thus, I consider that the second ground of appeal is made out. The learned Magistrate erred in refusing to allow the appellant to adduce evidence relating to the respondent's credibility.

61 Finally, I am of the view that the interim order of 16 November 2004 must be set aside also. It will be open to the respondent to renew her application for relief when the original application is remitted back to the learned Magistrate for rehearing in the light of these reasons. There will be no order as to costs.