Titley v White [2003] TASSC 41

Curran v Wilson [1977] Tas SR 137 (NC), explained.

Judgment ID Number: [2003] TASSC 41

1 The applicant appeared before a magistrate charged with one count of common assault and pleaded not guilty. Four witnesses were called by the prosecution and the applicant gave evidence denying the assault. At the conclusion of the evidence the learned magistrate gave detailed reasons for finding that the complaint had been proved.

2 After hearing a plea in mitigation from the applicant's counsel, the learned magistrate made brief comments before proceeding to convict the applicant of the assault and to fine him $350, with costs of $132.70 and a victims of crime compensation levy of $20 also being payable. Thereupon the applicant's counsel asked for three months to pay and his Worship granted the application.

3 The prosecutor then said: "I would on behalf of the three witnesses, seek restraint orders - just not to approach, threaten, harass or abuse the three witnesses." The prosecutor was obviously referring to three civilian witnesses, who were the complainant (who had been struck by the applicant), the complainant's friend (who was walking with the complainant at the time) and the friend's mother (who arrived on the scene shortly after the assault occurred).

4 On the face of the transcript, the applicant's counsel was given little opportunity to respond to the prosecutor's application. The applicant himself intervened by saying "I can give the court me word that won't happen, save paperwork", but the learned magistrate immediately made restraint orders, with the following words:

"Yes, well, there has been evidence which would support that application. I grant those applications and I make those orders in the case of the three witness [sic], civilian witnesses, who gave evidence for the prosecution, namely that the respondent, or defendant/respondent should not approach, assault, threaten, harass or abuse the named applicant - that to be for 12 months, or no, that to be until further order."

5 The applicant's counsel exclaimed: "Well, that's indefinitely, your Worship." The learned magistrate replied: "It can be, yes. Your client could make an application to have it revoked at some stage, or anybody can. Yes, I have power to do that."

6 The applicant has applied to review only the making of the restraint orders. The grounds upon which review is sought are in summary:

1 That the learned magistrate erred by making restraint orders without first giving the applicant a proper opportunity to be heard.

2 That the learned magistrate erred by making the restraint orders at a time when he was functus officio in respect of the sentence or proceedings.

3 That the learned magistrate erred by making the restraint orders operative until further order contrary to the provisions of the Justices Act 1959 ("the Act"), s106, or alternatively, the learned magistrate lacked jurisdiction to make an order in those terms.

4 That the learned magistrate erred by making restraint orders pursuant to s106 or s106J, when he could not be satisfied as to the matters he was required to be satisfied about by s106B(1).

7 Counsel for the respondent conceded that the applicant was not given a proper opportunity to be heard on the application for the restraint orders. I am satisfied that the first ground of review has been made out.

8 Counsel for the applicant submitted that as the sentencing orders had been made before the restraint orders were sought, let alone made, the learned magistrate was functus officio and could not make the restraint orders.

9 By the Justices Act 1959, s106B(1), justices may make a restraint order upon the making of an application under the section and upon the justices being satisfied on the balance of probabilities of certain matters, such as that a person has caused personal injury and unless restrained, is likely to do so again. By s106J, it is provided that where, upon the hearing of a complaint for an offence punishable summarily, justices are satisfied on the balance of probabilities as to the matters set out in s106B(1), they may make a restraint order in addition to any other order which they may make.

10 It is not disputed that the learned magistrate would have had the power to make the restraint orders upon the hearing of the complaint. What was submitted by the applicant's counsel was that once the learned magistrate had announced his comments on passing sentence and the sentence itself, the hearing of the complaint had concluded and it was too late for the restraint orders to be made. The only authority upon which reliance was placed was Curran v Wilson [1977] Tas SR 137 (NC) unreported 44/1977, at 2, where in the course of brief extempore reasons for judgment, Crawford J held "that once an order for sentence is made, justices are functus officio in respect of that order". Interpreted literally, what his Honour held was that once a sentencing order is made, justices are functus officio in respect of that sentencing order.

11 A restraint order made pursuant to the power given by s106J is not part of the sentencing order of the court. The fact that the learned magistrate had announced the sentence did not alone prevent him from making the restraint orders. In that regard, his Worship was merely constrained by the requirement of the section that the order be made at a time when it could be said that there was a hearing of the complaint. If the learned magistrate had moved on to a hearing concerning a different defendant or a different complaint, or if he had adjourned the sitting of the court following the announcement of the sentence, it may be correct to say that the hearing of the complaint had ended and it would have been too late to subsequently make the restraint orders. However, the evidence before me, restricted as it is to the transcript, does not persuade me that the hearing of the complaint had come to an end at the time the prosecutor made the application for the restraint orders and they were made. I do not think that the Court should be so technical as to hold that upon the statement of the last word of a sentence the hearing of a complaint has necessarily ended.

12 Accordingly, I hold that the second ground of review fails.

A restraint order operative until further order

13 The restraint orders were expressed "until further order". By s106B(6), "a restraint order shall remain in force for such period as justices consider necessary to protect the person for whose benefit the order is made or until an order is made revoking the restraint order". By s106G(1), "a person who may make an application for a restraint order or a person against whom a restraint order has been made may at any time apply to justices for the variation, extension, or revocation of the restraint order".

14 I have little experience of restraint orders. Counsel for the applicant, who has been in practice for many years, said that he had not heard of one being made until further order instead of for a fixed term of months or years. He referred to Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68 at 75, where O'Keefe J referred to the word "period" as meaning an interval of time, but that does not assist because in that case the word appeared in the statutory expression "the period (being a period not exceeding 21 days) during which the warrant is in force". In its context, the word had to mean an interval of time defined with regard to both its commencement and end.

15 Counsel for the respondent accepted that a restraint order expressed to be unlimited as to time will generally be undesirable, but submitted that it is nevertheless permitted by the Act. I agree. An interval of time expressed from a fixed date until an uncertain date, for example "until the death of the King", is nevertheless a period of time, and another expressed from a fixed date "until further order" is also a period of time. Imprecise intervals of time are nevertheless periods of time. Thus the Shorter Oxford English Dictionary 3rd ed gives as one of the meanings of "period", "the time during which a disease runs its course", and also "an indefinite portion of time, of history, or of some continuous process, as life".

16 The third ground of the motion to review therefore fails.

Whether the magistrate could be satisfied of the matters in s106B(1)

17 Before the restraint orders could be made in respect of each of the three persons to be protected by them, the learned magistrate needed to be satisfied, on the balance of probabilities, of essential facts required by s106B(1). When seeking the restraint orders, the prosecutor made no submissions as to what essential facts had been proved. When making the orders, the learned magistrate did not state what essential facts he found to have been proved. With respect, he should have done so. If he had thought to do so, it is unlikely that he would have made the orders.

18 In the context of the evidence the learned magistrate had heard, and having regard to the requirements of s106B(1), the restraint orders could only have been made if he was satisfied on the balance of probabilities:

1 (a) that the applicant had caused personal injury; and

(b) that unless restrained, he was likely again to cause personal injury (see s106B(1)(a)); or

2 (a) that the applicant had threatened to cause personal injury; and

(b) that unless restrained, he was likely to carry out that threat (see 106B(1)(b)); or

3 (a) that the applicant had behaved in a provocative or offensive manner; and

(b) that behaviour is such as is likely to lead to a breach of the peace; and

(c) that unless restrained he was likely again to behave in the same or a similar manner (see s106B(1)(c)).

19 The relevant facts found by the learned magistrate in the course of finding the complaint proved were as follows. One of the three civilian prosecution witnesses was the complainant, Anthony van Bohemen, who was 15 years old at the time of the offence. He and his friend, Duncan Campbell, who was also one of the civilian prosecution witnesses, were walking across the Deloraine Bridge when the applicant drove across it with his 14-year-old son, Cody, as his passenger. There was what was described by the learned magistrate as an exchange between the applicant's son and the complainant. The learned magistrate did not attempt to resolve the conflict on the evidence concerning the nature of that exchange. The complainant's evidence was that the applicant's son put his head out the window of the car and called him a fuckhead and he replied by saying the same thing to him. Duncan Campbell's evidence was similar. The applicant's evidence was that he heard someone shout from outside the car the word cockhead, and that his son replied in kind. Whoever started it, the applicant decided to confront the two boys who where were on the footpath. It might be thought surprising that he would do so if his son had initiated the exchange. But that issue did not need to be resolved.

20 The learned magistrate found that the applicant parked his car and walked up to the two boys. Precise findings concerning what happened next are difficult to identify. The learned magistrate rejected the applicant's evidence and preferred that of the civilian witnesses called by the prosecution. He referred to conflicting evidence given by the complainant and his friend, but did not clearly state how he resolved the conflicts. In any event, it is clear that his Worship found that the applicant walked up to the complainant and struck him once to the mid-point between the bridge of his nose and his forehead. The blow was open-handed, with the heel of the hand, with the applicant's arm straight out in a forward piston-like motion. The learned magistrate found that the blow caused a red mark between the eyes. It seems likely that the learned magistrate also found, in accordance with the evidence of the applicant's friend, that as the applicant walked towards them he asked who had called out and the complainant owned up.

21 There is no need for me to relate in detail the evidence of all of the witnesses in an attempt to find whether there was evidence justifying a finding of facts supporting the making of the restraint orders. Counsel for the respondent accepted that counsel for the applicant referred me to the relevant evidence. Apart from the evidence to which I have referred, it included evidence that after the applicant struck the complainant, the latter fell over and then got up; that the friend said to the applicant that there was no need for that; that the applicant abused them; and that the friend's mother came on the scene (she was the third prosecution civilian witness) and asked the applicant to go away, but he would not do so, and so she and the two boys left.

22 Cross-examination of the complainant revealed that there had been prior ill-feeling between him and the applicant's son at school, that led to teasing each other and giving each other a hard time. There was an occasion when the complainant had gone to the applicant's home. According to the complainant it was because he had been challenged to do so by the applicant's son "to come to his home and fight him". However, all that had happened, according to the complainant, was that some words were spoken and the applicant had come over and scared him off, telling him to leave his son alone. That incident had taken place some time before the date of the offence, to the extent that the complainant said that although he did not like the applicant's son, he had pretty much forgotten about him at the time of the offence. Although they had attended the same school at one time, the evidence established that the applicant's son had been transferred to a school a considerable distance away, in Sheffield instead of Deloraine. Apart from the incident when the complainant went to the applicant's home looking for a fight, or at least to confront the applicant's son, there was no evidence of contact between the applicant and the complainant or of any assault or threat of an assault made by the applicant to him.

23 The complainant's friend had no contact with the applicant before or after the date of the offence. He also disliked the applicant's son arising out of them all having attended the Deloraine High School at one time. There was no evidence that the applicant had ever assaulted or threatened him in any way.

24 The applicant and the mother of the complainant's friend had never met each other before. There was no evidence that they ever met each other again. There was no evidence that he assaulted or threatened her in any way.

25 The hearing of the complaint took place about 13 months after the offence. The complainant had moved his place of residence away from the area where the applicant lived. There was no evidence of any contact in the meantime, between the applicant or his son and the civilian witnesses called by the prosecutor.

26 I am satisfied that the making of the restraint orders was unjustified. There was no evidence that the applicant had caused personal injury to the complainant's friend or the friend's mother or that he had threatened either of them. There was no evidence to support a conclusion that the applicant was likely to cause personal injury to the complainant again or that he had threatened to do so. There was no evidence capable of leading a judicial officer to reasonably conclude that the applicant was likely to behave in a provocative or offensive manner in the future. I hold that the fourth ground of review has been made out.

27 Because the first and fourth grounds of review have been made out, the motion will be upheld and it will be ordered that the restraint orders made in a court of petty sessions at Westbury on 12 December 2002, whereby it was ordered that the applicant must not harass, abuse, threaten, assault or approach either Anthony Edward van Bohemen, Duncan Brian Campbell or Felicity Mary Killalea until further order, are quashed.