JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MCKENZIE -v- PICKEN [2001] WASCA 318
CORAM : SCOTT J
HEARD : 21 SEPTEMBER 2001
DELIVERED : 19 OCTOBER 2001
FILE NO/S : SJA 1046 of 2001
BETWEEN : ALAN DONALD MCKENZIE
Appellant
AND
KIM MORRIS PICKEN
Respondent
Catchwords:
Criminal law and procedure - Restraining Orders Act 1997 - Violence restraining orders - No requirement to establish that an offence was committed - History of acrimony between parties - Turns on own facts
Legislation:
Restraining Orders Act 1997 s 11, s 12
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Mr R K Williamson
Respondent : Mr M T S Rennie
Solicitors:
Appellant : Williamson & Co
Respondent : Michael Rennie
Case(s) referred to in judgment(s):
Doyle v Jones [1952] WAR 1
Case(s) also cited:
Nil
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1 SCOTT J: The appellant and respondent are neighbours. The appellant resides at 16 Rainbow Way Dawesville and the respondent at 18 Rainbow Way.
2 On 1 August 2000 a Stipendiary Magistrate at Mandurah made two violence restraining orders. One was in favour of the appellant against the respondent, and the other in favour of the respondent against the appellant. It is only the latter which is the subject of this appeal.
3 Pursuant to the provisions of s 16(1)(5)(c) of the Restraining Orders Act 1997 ("the Restraining Orders Act") where the violence restraining order becomes a final order as in the case here, the order runs for a period of two years from the date upon which the interim order comes into force. In this case it is common ground that the two restraining orders expire on 1 August 2002.
4 The evidence before the learned Magistrate indicates that there was a history of acrimony between the appellant and the respondent. In her reasons for judgment her Worship referred to the fact that the appellant and respondent had been before the court earlier in relation to restraining orders. On 25 May 2000 the proceedings were resolved by undertakings given by each party that there should be no contact and that they should act reasonably towards each other. Those undertakings concluded the proceedings on 25 May.
5 The evidence before her Worship indicated that a further incident occurred on 16 June 2000 (that is approximately three weeks after the undertakings were given) on which occasion on her Worship's findings, after an exchange of abuse the appellant "rolled up his sleeves and took off his glasses". On that occasion the respondent went inside his house and called the police and nothing got out of hand.
6 The incident giving rise to the appeal occurred on 24 July 2000 that is just over one month after the incident on 16 June. On this occasion both the appellant and the respondent went into their front yards because there was noise coming from dogs barking on the other side of the road across from the appellant's and respondent's houses. The evidence indicated that verbal abuse occurred between the appellant and the respondent and on her Worship's findings "neither party really backed off".
7 Following the verbal abuse, on her Worship's finding, the respondent went into his house and obtained a hockey stick and the appellant went into his house and obtained a pepper spray. Both returned to the front
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yard, the appellant with the pepper spray and the respondent with the hockey stick. There was some dispute as to whether the respondent hit the appellant with the hockey stick and there was a dispute as to whether the respondent also obtained a star picket. Her Worship's finding as to what then happened was:
"Mr Picken went and got a hockey stick. Mr McKenzie went and got a pepper spray, and went out the front, so on the basis of that conduct alone, they were both in a position where they were prepared to arm themselves in those ways, to a certain extent, in case a violence (sic) broke out, and on both accounts, they could have easily gone back inside, cooled down, and not gone out the front, so in my view, in terms of this restraining order legislation, given that that's what started this whole thing, that both parties were prepared to be violent, if it was necessary, on the basis of those initial acts, these violence restraining orders should be granted."
8 Her Worship then went on to explain to each of the parties the nature and terms of the violence restraining orders that she was prepared to make.
9 The appellant obtained an order for leave to appeal and extension of time from Templeman J on 1 June 2001. The grounds of appeal are:
"(a) The learned Magistrate erred in law when she held –
'I don't actually have to determine what happened that night. I just have to decide whether, on the basis of what happened that's not really in dispute, it's likely to happen again, there's likely to be more violence or more abuse in the future. That's what I have to decide, not whether somebody was defending themselves that night, but whether there was violence on either side, and whether it's likely to happen again … [and] I'm concerned to determine, on the balance of probabilities, whether it's likely, unless a restraining order is in place that this sort of violence is going to erupt again into the future.'
when in law, by virtue of s 11 of the Restraining Orders Act, the issue she had to determine on the application was whether, unless restrained, the applicant is likely to commit a violent personal offence against the respondent or behave in a manner that could reasonably be expected
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to cause the respondent to fear that the applicant will commit such an offence and that granting such an order is appropriate in the circumstances.
(b) The learned Magistrate erred in law when she refused to determine 'what happened that night': unless and until she had done that it was impossible for her to determine the issue which s 11 of the Restraining Orders Act required her to determine."
10 The Restraining Orders Act 1997 replaced the provision of Part VIII of the Justices Act 1902-1948 which reflected an ancient jurisdiction going back at least to an old English Statute 34 Ed III Ch 1. That early statute and its successors provided justices with the jurisdiction to administer preventative justice so as to constrain potential breaches of the peace. Doyle v Jones [1952] WAR 1 per Virtue J at 4.
11 Those ancient provisions which found their way into Part III of the Justices Act 1902 have since been updated and modernised in the Restraining Orders Act. That Act in its long title is said to be "an Act to provide for restraining orders, to amend the Justices Act 1902 and various other Acts, and for related purposes".
12 The Restraining Orders Act provides for two forms of restraining order namely violence restraining orders and misconduct restraining orders. Violence restraining orders are contained in Part II of the Restraining Orders Act and misconduct restraining orders in Part III of that Act.
13 As I have said this appeal relates to the imposition of a violence restraining order against the appellant. In s 3 of the Restraining Orders Act "violence restraining order" is defined to mean – an order made under this Act imposing restraints of a kind in s 13. "Violent personal offence" is defined to mean an offence against the person under Part V of the Criminal Code, other than Chapters XXXIV and XXXV.
14 An examination of Part V of the Criminal Code in relation to which violence restraining orders apply is headed "Offences against the person and relating to marriage and parental rights and duties and against the reputation of individuals". An examination of that part of the Criminal Code indicates that the relevant conduct ranges from common assault through to wilful murder and includes a range of offences against the person between those two extremes.
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15 Part II of the Restraining Orders Act deals with violence restraining orders. Section 11 and s 12 provide:
"11. Grounds for a violence restraining order
A court may make a violence restraining order if it is satisfied that –
12. Matters to be considered by court
(1) When considering whether to make a violence restraining order and the terms of the order a court is to have regard to –
(a) the need to ensure that the applicant is protected from personal violence;
(b) the need to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence;
(c) the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;
(d) the accommodation needs of the respondent and the applicant;
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(e) hardship that may be caused to the respondent if the order is made;
(f) any family orders;
(g) other current legal proceedings involving the respondent or the applicant;
(h) any criminal record of the respondent;
(i) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise; and
(j) other matters the court considers relevant.
(2) A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance."
16 As can be seen from s 11 of the Restraining Orders Act the legislation directs the court to look prospectively because the court may make a violence restraining order if it is satisfied that unless restrained, the respondent is likely to behave in the manner set out in s 11(a)(i) or (ii).
17 A combination of the provisions of s 11(a)(i) and (ii) when considered together with the provisions of s 12(1)(g)(h) and (i) leads to the conclusion that whilst the court needs to focus upon the likelihood of the respondent committing a violent personal offence against the applicant or behaving in a manner that could reasonably be expected to cause the applicant to fear that the respondent would commit such an offence, the court may look to the past history of the relationship between the applicant and the respondent in making that determination.
18 The other matter of importance in dealing with this appeal is that the making of a violence restraining order is not predicated upon the commission of an offence.
19 As the grounds of appeal were developed by counsel for the applicant, it was submitted that the appellant's conduct on the night in question was entirely consistent with a person acting reasonably in self defence in order to protect the safety of himself and/or his family. Counsel for the appellant contended that it was the respondent who was the aggressor in the incident and that it was the respondent's conduct and threat to the appellant which caused him to respond as he did. Counsel
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contended that the Magistrate erred in law in not making a determination as to who started the fight and the basis for the behaviour of both the appellant and the respondent.
20 In dealing with that submission it is particularly important to note as I have said, that it is not necessary in an application under s 11 of the Restraining Orders Act for the applicant to establish that an offence has been committed by the respondent. Indeed, whilst past conduct can be looked at, and by the statute must be considered, that is only one of a number of factors for the court to take into account in determining whether the respondent, unless restrained, is likely to commit a violent personal offence against the applicant. In this case, in dealing with that aspect of the appeal it is important to consider her Worship's findings of fact after consideration of the evidence:
"The parties, Mr and Mrs Pickin, and Mr McKenzie, are neighbours, and there's obviously a history of bad feeling or bad blood between them, because they've been to court before on the 25th of May, on restraining order applications, and in the end, undertakings were given between them that there should be no contact, and that they should act reasonably towards each other. That's how it was concluded, as at the 25th of May."
21 Her Worship then went on to consider an incident on 16 June, which terminated because the Pickins' went inside their house and called the police and nothing got out of hand. In relation to the incident on 24 July her Worship having referred to the earlier part of the altercation between the appellant and respondent said:
"Then verbal abuse started between them. Now, the last witness says that Mr Pickin was the first one to make some abusive comment to Mr McKenzie, and that Mr McKenzie returned some abuse to Mr Pickin, so neither party really backed off then. In fact, Mr Pickin agrees that he went inside and got a hockey stick, and came out of the house. He says he put it against the fence, but he did go in and get this hockey stick. Then Mr McKenzie went inside, and before he went out the back, he got a pepper spray, so they both ended up out the front. Mr Pickin had got a hockey stick. Mr McKenzie had got a pepper spray."
22 Her Worship then referred to the disputed evidence and said:
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"… But as I said, I'm not here to decide beyond reasonable doubt who started that fight, and whether somebody was provoked, or was defending themselves, and all the rest of it, because I'm concerned to determine, on the balance of probabilities, whether it's likely, unless a restraining order is in place, that this sort of violence is going to erupt again into the future."
23 Her Worship ultimately determined that the appropriate course was to grant both applications so that restraining orders ran to protect both the appellant and the respondent.
24 In my view, her Worship was correct in saying that she did not need to determine who started the fight and indeed in my view, in this case, it was not necessary for her Worship to consider whether the appellant was acting reasonably in self defence when he obtained the pepper spray. It was sufficient to activate the provisions of the Restraining Orders Act that both the appellant and the respondent were engaged in aggressive conduct towards one another over a period of time, of such a nature that unless restrained, a violent personal offence was likely to be committed. This is not a case where the facts could lead to the conclusion that the appellant was using reasonable force only for the purpose of making effectual his defence against the respondent. On her Worship's findings of fact both parties were aggressive and either of them could have terminated the altercation had they stayed inside at the time in which they went into their respective houses to obtain the weapons which were subsequently used. From the appellant's point of view once he went inside his house he could have phoned the police or indeed stayed inside with his doors locked. The incident may have terminated as did the incident on 16 June. However the appellant chose not to do so. Instead he returned to where he knew, or suspected the respondent would be, armed with the pepper spray.
25 On those findings of fact, and in all of those circumstances, in my view it was properly open to her Worship to reach the conclusion that a restraining order should run against the appellant. I can detect no error in her Worship's reasons which would lead me to the conclusion that her discretion has miscarried.
26 The appeal will be dismissed.
27 I would finally add that having considered the provisions of the Restraining Orders Act and the findings of fact I have concluded that the affidavit of the respondent, which counsel for the respondent sought to
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adduce at the hearing of this appeal, should not be received in evidence as it is of little or no relevance.