The Queen v Andrew Nicholas Sarri [1999] ACTSC 109 (22 October 1999)

Last Updated: 22 October 1999

THE QUEEN v ANDREW NICHOLAS SARRI [1999] ACTSC 109

(22 October 1999)

CATCHWORDS

COURTS AND JUDICIAL SYSTEM - Magistrates Court - application for interim restraining order - proceedings before Deputy Registrar with order signed by Magistrate in chambers - whether power for Deputy Registrar to hear and/or determine - whether order validly made by magistrate.

COURTS AND JUDICIAL SYSTEM - Magistrates Court - offence of contravening interim restraining order - whether mens rea an element of offence - whether mental element requires knowledge of relevant facts - whether recklessness sufficient - relevance of honest and reasonable mistake.

CRIMINAL LAW - trial by judge alone - offence of contravening interim restraining order - whether mens rea an element of offence - whether mental element requires knowledge of relevant facts - whether recklessness sufficient - relevance of honest and reasonable mistake.

Supreme Court Act 1933, s 68C

Magistrates Court Act 1930, s 206H, s 206L

Magistrates Court (Civil Jurisdiction) Act 1982 s 4, s 479, s 481

Crimes Act 1900 (NSW), s 562I

Nepeor Pty Ltd v Liquor Licensing Commission & Ors (1987) 46 SASR 205

Lim Chin Aik v The Queen [1963] AC 160

R v Warner [1969] 2 AC 256

Gammon Ltd v Attorney-General (Hong Kong) [1997] UKHL 17; [1985] AC 1

Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342 at 346, 348

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Bahri Kural v The Queen (1987) [1987] HCA 16; 162 CLR 502

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536

No. SCC 65 of 1999

Judge: Crispin J

Supreme Court of the ACT

Date: 22 October 1999

IN THE SUPREME COURT OF THE )

) No. SCC 65 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

against

ANDREW NICHOLAS SARRI

FINDING

Judge: Crispin J

Date: 22 October 1999

Place: Canberra

THE COURT FINDS THAT Andrew Nicholas Sarri is not guilty of the offence charged, namely that on 17 April 1998 at Canberra in the Australian Capital Territory he, being the respondent to an interim restraining order which was in force and upon whom a copy of the order had been served personally, contravened the order.

1. The accused was arraigned before me on one count, that on the 17^th day of April 1998 at Canberra in the Australian Capital Territory he, being the respondent to an interim restraining order which was in force and upon whom a copy of the order had been served personally, contravened the order.

2. Upon his arraignment he pleaded not guilty to the charge.

3. As the accused elected to be tried by judge alone I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

"(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as the verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a Judge alone, if the law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict."

4. As in trials conducted with a jury, the accused is entitled to the presumption of innocence, the Crown bears the burden of proving each element of each charge and the standard of proof is proof beyond reasonable doubt.

5. The offence charged was said to arise under s 206L of the Magistrates Court Act 1930 subs (1) of which is in the following terms:

"Where -

(a) a restraining order or interim restraining order is in force;

(b) the respondent -

(i) was present at the time the order was made; or

(ii) was served personally with a copy of the order; and

(c) the respondent contravenes the order;

the respondent is guilty of an offence . . ."

6. For present purposes the elements of the offence charged are that on 17 April 1998 the accused was the respondent to an interim restraining order which was in force, that a copy of that order had been served personally upon him and that he contravened that order.

7. It was not disputed that an interim restraining order was purportedly made against the accused on 3 February 1998. The relevant portion of the copy of the order is as follows:

Before a Deputy Registrar on the 3^rd February 1998 with the order being signed by Magistrate Somes, in chambers in the absence of the parties.

A. An Application for a Restraining Order has been made by the Applicant in accordance with Part X of the Magistrates Court Act 1930.

B. Oral evidence on oath was given before the Court by the Applicant in support of the Application.

C. The Court finds it necessary to ensure the safety of the Applicant namely Damon Walter Ring.

Pending the Hearing of the Application for a Restraining Order the following Interim Restraining Order shall remain in force until 4.00 pm on the 14^th day of July 1998.

IT IS ORDERED THAT:

1. The Respondent be prohibited from:

(i) causing personal injury;

(ii) threatening to cause personal injury;

(iii) harassing, threatening or otherwise intimidating the Applicant or causing another person or persons to engage in that conduct.

2. The Respondent be prohibited from being on the following premises:

(i) being premises at which the Applicant resides: 42 Stretton Cres Latham

(ii) being premises at which the Applicant works; Maquatto and Quatro Bars, Civic.

3. The Respondent is prohibited from being in the following localities, namely, MAQUATO, QUATRO BARS, CIVIC.

4. The Respondent is prohibited from approaching within 100 metres of the Applicant EXCEPT AT COURT.

5. The Respondent is prohibited from contacting the Applicant EXCEPT AT COURT.

6. The Respondent is prohibited from damaging property of the Applicant.

7. The Respondent is prohibited from causing another person or persons to engage in the conduct referred to in paragraphs above.

8. That any weapons licence held by the Respondent under the Weapons Act 1991 or Firearms Act 1996 be suspended and that any dangerous, prohibited or restricted weapon in the Respondent's possession be seized and detained by the Australian Federal Police for the term of the Order.

IT IS DIRECTED that an Officer of the Australian Federal Police arrange service of this Order, Notice of Proceedings and Application as soon as possible.

Application is adjourned until the 14^th day of July, 1998 at 10.30 am for hearing.

8. In the course of the trial I raised with counsel potential implications of subs (3) of s 206H which provides that an interim restraining order remains in force "for the period (not exceeding 10 days) specified by the court in the order". In making the order on 3 February 1998 the court purported to specify that the interim restraining order would remain in force until 4.00 pm on 14 July 1998. At face value this appeared to contravene the limitation contained in the section.

9. However the Magistrates Court file was subsequently tendered and that revealed that an earlier interim restraining order had been made on 28 January 1998 and had remained in force until 4.00 pm on 3 February 1998. Accordingly, subs (4) of s 206H applied. That subsection is in the following terms:

"Where -

(a) the Court adjourns the hearing of an application; and

(b) an interim restraining order is in force;

the court may, with or without hearing further evidence, extend the period for which the order remains in force until the date fixed for the further hearing of the application."

10. The order of 3 February 1998 was couched in terms suggestive of a fresh interim restraining order rather than a mere extension of the period during which an earlier order was to operate. Nonetheless it was in identical terms to the earlier order save for the period of operation. That suggests that it was intended to have the effect of extending the period of the earlier order as contemplated in subs (4) and that impression is confirmed by the note on the bench sheet "IRO to continue to 4.00 pm on 14/7/98". Consequently the restriction contained in subs (3) on orders remaining in force for more than ten days did not apply.

11. However that is not the only difficulty that arises in relation to the order. At face value the opening words suggest that there was a hearing before the Deputy Registrar and that the order was then signed by the Magistrate in chambers. That impression is strengthened by the statement in paragraph B that oral evidence on oath was given before the Court by the applicant. If the order was signed by the Magistrate in the absence of the parties it is difficult to see how the applicant could have given oral evidence before him. It is conceivable though unlikely, that the Magistrate heard that evidence in open court before retiring to his chambers to sign the order, but that hypothesis would not explain why the order referred to the proceedings being before a Deputy Registrar rather than the Magistrate. The impression is further confirmed by the notation on the bench sheet which contains a handwritten note of the order in blue ink and a signature below apparently in different handwriting and in black ink. No transcript of the proceedings of that day was tendered. Nor was any evidence led from Mr Ring or any other witness on this aspect of the case.

12. The Crown conceded that it was unclear how the proceedings had been conducted on the day in question and that the form of the order suggested that there had been either a hearing or a conference before the Deputy Registrar during or following which that officer had formulated the orders which were subsequently typed out for signature by the Magistrate.

13. The Crown submitted, however, that the Magistrates Court (Civil Jurisdiction) Act 1982 applied to any such proceedings by virtue of s 4 which provides that the Act applies to all proceedings instituted after the commencement of the Act other than those specified. Proceedings relating to applications for interim restraining orders are not so excluded. Accordingly, s 479 of that Act authorised the Magistrate to make, in chambers, "any order in relation to [the] proceedings which he or she could lawfully . . . [have made] in court and which he or she considered [may have been] properly given or made in chambers". However, it is not merely the fact that the Magistrate made the order in chambers and not in court that casts doubt on its validity. It is rather that the proceedings appear to have been heard and in substance determined by the Registrar with the order merely being signed by the Magistrate subsequently. It is I think abundantly clear that a magistrate could not lawfully make orders, whether in court or in chambers by, in effect, "rubber stamping" the decision of a Deputy Registrar who had purported to entertain proceedings which he or she would have had no jurisdiction to hear or determine.

14. In the alternative, the Crown submitted that the order might have been made by consent. Section 481 of the Magistrates Court (Civil Jurisdiction) Act 1982 authorises "the Registrar" to exercise the power of the court to make orders by consent and s 3 provides that the word "Registrar" means the Registrar or Deputy Registrar of the court. There are, however, a number of difficulties in the path of this submission. The first and most obvious is that the Crown bears the onus of proving that a valid order was made. It may well be able to rely upon the presumption of validity in the sense that it is unnecessary to adduce any evidence as to the validity of an order unless and until that issue is properly raised but, once raised, it is incumbent upon the Crown to prove the validity of the order beyond reasonable doubt. Secondly, neither the order itself nor the bench sheet contain any suggestion that the order was made by consent. Thirdly, if the order had been made by consent the Deputy Registrar would have had jurisdiction to make the order and there would have been no need to have referred the matter to the Magistrate.

15. Ultimately, the evidence suggests that whilst an order was purportedly made by the Court on 3 February 1998 any proceedings between the parties were heard and determined by someone who had no jurisdiction to hear or determine them and the Magistrate did nothing more than to sign the order in the form determined by that person. Even if that act could properly be regarded as the making of an order it was not an act which could lawfully be done in those circumstances and, accordingly, s 479 could not have had the effect of authorising it to have been done in chambers. Consequently, I am unable to be satisfied beyond reasonable doubt of the first element of the offence namely, that the accused was the respondent to a valid interim restraining order.

16. This is not a "mere" technicality. The making of an interim restraining order may have serious implications for the person against whom it is made. Furthermore, it may be made without the other person having the opportunity to be heard and in some cases without even knowing that an application for such order has been made. The decision to make such an order is a judicial one which has properly been entrusted only to magistrates. There is no power for it to be delegated to a non-judicial officer. Nor was it intended by the legislature that the power would be exercised by anyone other than a properly appointed judicial officer.

17. The conclusion which I have reached on this issue involves the consequence that it is unnecessary to consider the adequacy of the evidence presented by the Crown in relation to the other elements of the charge. Nonetheless, in deference to the carefully argued submissions of counsel it may be appropriate for me to deal briefly with some of the issues raised in argument.

18. It was conceded that a copy of the order had been personally served upon the accused but there was a real issue between the parties as to whether he had contravened it.

19. The Crown alleged that he had done so by driving slowly past the Quatro bar in a northerly direction along East Row in Canberra just before 2.00 am on 17 April 1998, turning and driving slowly past in a southerly direction and then turning to again drive back past in a northerly direction before being stopped by a police officer.

20. It was not disputed that the accused had driven his vehicle near the Quatro Club as alleged. The Crown contended that in doing so he had contravened the order in two respects. First, he had contravened the prohibition "against being in the following localities, namely, Maquato, Quatro bars, Civic". It is common ground that the word "Maquato" was intended to refer to the Café Macchiato which is also in East Row but nothing turns on this inaccuracy. It was contended that this description was broad enough to encompass the locality within which the bars were located including the relevant portion of the roadway adjacent to them. Secondly, he had contravened the prohibition against approaching within 100 metres of Mr Ring.

21. The former contention was largely dependent upon the proper construction of the word "localities". I accept that in other contexts it may refer to general areas within which a building may be located, (see, for example, Nepeor Pty Ltd v Liquor Licensing Commission & Ors (1987) 46 SASR 205) but one in the context of a court order constraining a person's freedom of movement which would enable such constraints to be delineated with greater precision. In the present case the word "localities" is followed by the word "namely" and then the phrase "Maquato and Quatro Bars, Civic". In this context I think that the use of the word "namely" has the effect of making it clear that the "localities" were the places described in the phrase that followed. In other words, the "localities" were the "Maquato and Quatro Bars" in Civic. In my view, an order of this kind must be construed strictly and I can see no justification for extending what appears to be the obvious meaning in order to embrace adjacent areas of the roadway.

22. Different issues arise in relation to the allegation that the accused contravened the order by approaching within 100 metres of Mr Ring. Whilst it was not disputed that in driving past the Quatro bar he approached within 100 metres of Mr Ring, it was contended that he had not contravened the order because he had not known that he was on duty in the Quatro Club at the relevant time. There was some evidence to support this contention. The accused had claimed lack of knowledge of his working hours when interviewed by the police and when Mr Ring was asked when he had told the accused of his working arrangements in cross-examination he said "I didn't know that that he knew them".

23. However, the Crown submitted that the offence created by s 206L is one of strict liability subject only to any issue of honest and reasonable mistake. It was acknowledged that the common law governing criminal responsibility had long recognised that there was a presumption that mens rea was an element of an offence. The relevant principle was stated by Wright J in Sherras v De Rutzen [1895] 1 QB 918 at 921:

"There is a presumption that mens re, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered."

See also Lim Chin Aik v The Queen [1963] AC 160 at 173; R v Warner [1969] 2 AC 256 at 272; Gammon Ltd v Attorney-General (Hong Kong) [1997] UKHL 17; [1985] AC 1 at 12-13; Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342 at 346, 348 and He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 528-530.

24. In the last mentioned case Gibb CJ suggested that in deciding whether the presumption had been displaced by a statutory provision, it was necessary to consider the words of the statute, the subject matter with which the statute was concerned and the issue of whether the imposition of strict liability would assist in enforcement. In the present case, the Crown contended that each of these considerations was relevant. The words of the section contained nothing to suggest that mens rea was to be an element of the offence. Indeed, the Crown submitted that it was significant that the legislature had chosen to admit the adverb "knowingly" which qualified the comparable provision in s 562(I) of the Crimes Act 1900 (NSW). The subject matter with which the statute is concerned was the protection of members of the community from violence or threats. The imposition of strict liability would assist in the enforcement of restraining orders by ensuring that those bound by them would exercise due care to avoid creating situations in which those who had sought the protection afforded by such orders might be put in fear.

25. Whilst these contentions were cogently argued I am unable to accept that s 206L was intended to create an offence without any element of mens rea. When people live and work in a city such as Canberra it is always possible for one to approach another quite inadvertently. The legislature should not be taken to have intended to criminalise such unforseen and innocent encounters. In some cases such a construction might expose a person to criminal conviction and punishment merely because he entered a building, shop or even a police station without knowing that the person entitled to the benefit of the order was inside. Furthermore, since it would not be necessary for the defendant to have known of the presence of the other person within the proscribed distance he or she might be unaware of having committed an offence until charged.

26. However, as Gibbs CJ observed if it is held that mens rea is an element of the offence it may be difficult to decide exactly what mental state is imported by that expression. The Crown submitted that the mental element should extend to recklessness but I think that one needs to be cautious in applying such a concept to offences of this nature. In other contexts it may be sufficient to prove that the accused adverted to the possibility that the relevant facts might exist but in the context of restraining orders of this kind advertence to a mere possibility of relevant facts might occur in quite innocent circumstances. For example, as the accused pointed out in his interview with the police, it was possible that Mr Ring might have been in a shopping mall when he went shopping or in a car nearby when he drove down the street. Yet, it is difficult to accept that the legislature had intended that mere advertence to possibilities of that kind should be sufficient to give rise to an offence. On the other hand I think that the necessary mental state might involve something less than actual knowledge such as awareness of the likelihood of relevant facts: see, for example Bahri Kural v The Queen (1987) [1987] HCA 16; 162 CLR 502 at 507. Such a view would appear to be consistent with the absence of any requirement that the contravention be committed knowingly and would not be dependent upon imputing to the legislature an intention to adopt a test so broad as to give rise to a constant risk of injustice. Hence, in the present case it was incumbent upon the Crown to prove that the accused knew that in driving past the Quatro bar he would be approaching within 100 metres of Mr Ring or at least that he was aware of the likelihood of that consequence.

27. The Crown also contended that, despite his denials, the accused did know that Mr Ring was on duty and hence knew that in driving past the Quatro Bar he would be approaching within that distance of him.

28. In my view the evidence does not establish that he went to that area of the city at that hour in order to approach Mr Ring. He gave the police an alternative explanation which was not inherently implausible and gave them the names of people who he said could confirm that it was his practice to do so for the reason he had explained. Those people were not contacted. Whilst the Crown maintained that there were grounds for scepticism, I do not think that his explanation can be lightly dismissed in these circumstances. When asked whether it had ever occurred to him that he might be in breach of the order by approaching so close to the Quatro bar he said "this is not on my mind at all . . . I mean what's on my mind is my business". Nor, in my view, does the evidence prove that he knew Mr Ring was working at the time in question. He denied such knowledge and, as I have mentioned, Mr Ring was unable to say that he would have known of his working arrangements. There is no evidence to the contrary.

29. However the Crown maintained that even if he had not previously been aware that Mr Ring would be on duty he must have seen him when he drove past the club. Hence his return to the vicinity involved a breach of the order.

30. In support of this contention the Crown relied upon evidence of Mr Ring to the effect that he had made eye contact with the accused. I must say that I found Mr Ring to be a most unimpressive witness. There were occasions when he purported to have made positive identifications and was then forced to concede that they had merely been assumptions. For example, he claimed in his evidence in chief that when he first saw the accused's vehicle he had not only seen the accused in it but had made eye contact with him. However, he conceded in cross-examination that he had assumed that the vehicle belonged to the accused because it was a green Range Rover and he knew that the accused had one. His evidence also contained significant contradictions. When first asked why he had walked to the front door he said "because I didn't want the accused coming anywhere near my bar or coming into my establishment". Only six questions later he was asked why he had bothered to go to the front door and said that he had been communicating with his staff. He was then asked whether "walking to the front door had absolutely nothing to do with Mr Sarri?". With no apparent embarrassment or even awareness of the contradiction, he answered "no". There were other reasons for doubting his credibility. For example, he told Constable Palmer that he had a restraining order which prohibited the accused from approaching within 300 metres of the Quatro bar. That statement was plainly untrue. He marked on a photograph the position in which he had been standing on one of the occasions when he claimed to have engaged the accused in eye contact and also the position then occupied by the accused. Having regard to the distance involved and the fact that the accused would have been sitting on the opposite side of a vehicle with its headlights on but no internal lights illuminated, I found his claim to have been able to engage in eye contact with him simply incredible.

31. The Crown also relied upon evidence from Mr Speechly. I formed the view that he was an essentially honest witness who had done the best he could to reconstruct what had occurred on the night in question. However he had remained behind the bar well inside the premises in question and had been obliged to look out the window of the club, past the well lit colonnaded footpath, through a perspex wall on the back of a bus shelter, across some portion of a roadway and through windows of a vehicle with no interior lights on to make the observations recounted in his evidence. He was also Mr Ring's subordinate and they had previously worked together for the accused. I think that his evidence of these events was honestly given but that he had been dependent upon some measure of reconstruction which may have been tinged by his relationship with Mr Ring and subsequent conversations with him.

32. The evidence of the police officers who had been sitting in a police vehicle nearby was entirely credible. However, it is always difficult for people some distance away from a vehicle to discern whether an occupant is looking at a particular person merely from the movement of his head and hand.

33. When the police stopped him and pointed out Mr Ring, the accused said "Oh, there's Damon". Constable Palmer said that he had "acted surprised". When interviewed he denied having seen Mr Ring earlier.

34. Whilst the circumstances are suspicious I was left with a reasonable doubt as to whether he had seen him and hence with a similar doubt as to whether he knew at the relevant time that he was approaching within the distance specified in the order.

35. The Crown also contended that the accused must have been aware of the likelihood of approaching within 100 metres of Mr Ring. He knew that Mr Ring worked at either Café Macchiato or the Quatro bar and knew that he might be on duty. These facts undoubtedly establish that if the accused had thought about the matter he would have been well aware of the likelihood that by driving as he did he would approach within 100 metres of him. The decisive question is whether he adverted to that likelihood. Whilst such advertence may sometimes be inferred from the surrounding circumstances, it is obviously necessary to take into account any denials by the accused and any evidence which might tend to explain how he could have failed to have adverted to it. In the present case, the accused told the police that there was no such advertence and that his mind was on his business. He operated a bar in Belconnen and went into Civic late at night each week to gauge the attendance at other bars. On this night there was a sudden change in the apparent patronage of various bars in Civic. He had not seen such a change before and was interested because it had potential implications for his business. As the Crown has pointed out, there are grounds for scepticism as to this explanation but, having considered the whole of the record of his interview with the police, I am not satisfied beyond reasonable doubt that he did advert to the likelihood of approaching within 100 metres of Mr Ring.

36. Finally, the accused told the police that he did not believe that the interim restraining order was still in effect. He said, in essence, that his brother had reached an agreement with Mr Ring to the effect that a long standing claim against him for the sum of $1,400 would be dropped and he would have the order discharged. It was submitted that this raised the issue of a mistake of fact based on reasonable grounds and that since the Crown had not proven the absence of such mistake, or demonstrated that there were no reasonable grounds for it, the accused was in any event entitled to an acquittal: see Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.

37. The account of this agreement given by the accused was terse and lacking in detail. No evidence was adduced to support it. Furthermore, it would have been remiss of him to have acted upon the mere assumption that Mr Ring had had the order discharged even if he had agreed to do so. On the other hand, the existence of such a belief might provide some explanation for his willingness to drive slowly past the Quatro bar in apparent contravention of the order on three occasions whilst a police vehicle was parked nearby. The explanation cannot be dismissed as inherently incredible or unreasonable and there was no evidence to refute it.

38. For these reasons the accused must be acquitted.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 22 October 1999

Counsel for the Crown: Ms Margaret Jones

Solicitors for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: Mr A Doig

Solicitor for the accused: Nimmo Tigwell Clarke

Date of hearing: 14, 15, 18 October 1999

Date of judgment: 22 October 1999