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District Court 18 May 2015

Brandon Trevor RICH v R

[2015] NSWDC 71

Domestic & family violencePublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL SERVICE OF APPREHENDED VIOLENCE ORDER

Citation: Rich v R [2015] NSWDC 71
Court: District Court of New South Wales
Date: 18 May 2015
Judge(s): G Lerve DCJ

Background

The appellant was convicted in the Dubbo Local Court on 16 May 2014 of knowingly contravening an apprehended violence order (AVO) under section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The alleged contravention occurred on 1 April 2014. A provisional AVO had been made on 27 February 2014, with a statement of service indicating personal service on the appellant at 4 am that same day.

The appellant had appeared in the Local Court on 5 March 2014, represented by a solicitor from the Aboriginal Legal Service, at which point an interim AVO was made. He did not appear on 26 March 2014, when the interim order was continued. At the Local Court hearing, he pleaded guilty to a related common assault charge, but contested the AVO contravention charge.

The Local Court convicted him on the AVO charge following a brief of evidence tendered by the prosecutor and submissions from both parties. The appellant then lodged a conviction appeal in the District Court, raising multiple grounds concerning the adequacy of proof before the Local Court.

  • Whether the prosecution proved beyond reasonable doubt that the appellant had been served with a copy of the AVO, as required by section 14(2) of the Crimes (Domestic and Personal Violence) Act 2007
  • Whether sufficient evidence of the alleged breach was before the Local Court, given a question about whether the agreed facts on the assault charge had been formally tendered
  • Whether the Magistrate was entitled to inform himself of events recorded in the court's own papers (specifically, the appellant's appearance on 5 March 2014), where that material was not formally tendered by the prosecution

Decision

On the question of the breach itself, the appellant initially submitted that no evidence of the alleged contravening conduct had been tendered. However, the District Court noted that the appellant's own solicitor had told the Local Court that the facts of the common assault were agreed, and that the only issue in the contravention charge was the appellant's knowledge of the AVO. The appellant ultimately resiled from this ground.

On proof of service, Lerve DCJ applied a well-established common law principle that a party's personal appearance in court overcomes any defect in service. The appellant had appeared in court on 5 March 2014, represented by counsel, when an interim AVO was made against him. That appearance, and his participation in proceedings, was sufficient to satisfy the requirements of section 14(2) independently of any question about the adequacy of the statement of service.

On the third ground, the court held that the Magistrate was entitled to inform himself from the court's own records. The court referred to section 144 of the Evidence Act 1995 (which allows courts to take notice of their own proceedings) and the High Court's decision in Mead v Mead. The Magistrate had made plain that he was relying on the court papers, and the appellant's solicitor had the opportunity to make submissions in response.

Lerve DCJ dismissed the appeal in emphatic terms, quoting RA Hulme J in Hudson v R and Dunks v R to the effect that appeals of this character consume valuable court and legal resources without merit, particularly where concessions made at first instance are subsequently contradicted on appeal.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • A defendant's personal appearance in court, represented by a solicitor, is sufficient to overcome any defect in service of an AVO, satisfying the knowledge requirement under section 14(2) of the Crimes (Domestic and Personal Violence) Act 2007.
  • Where agreed facts are explicitly acknowledged by defence counsel in Local Court proceedings, a later submission that no evidence of the offending conduct was before the court is likely to fail.
  • Under section 144 of the Evidence Act 1995, a Magistrate may inform themselves from the court's own records, provided the parties are made aware and have an opportunity to respond.
  • In dismissing the appeal, the District Court applied the principle from Mead v Mead that a court's own records form part of the material on which it may lawfully rely.
  • Grounds raised for the first time on appeal that are inconsistent with concessions made at the original hearing are particularly susceptible to criticism as "armchair" appeals, consuming court and legal aid resources without a reasonable basis.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Evidence Act 1995 (NSW), s 144
- Crimes (Appeal and Review) Act 2001 (NSW)
- Local Court Act 2007 (NSW)
- Local Court Rules
- Road Transport Act 2013 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Mead v Mead [2007] HCA 25
- Hudson v R [2015] NSWCCA 64
- Dunks v R [2014] NSWCCA 134
- De Robillard v Carver (2007) 159 FCR 38
- Boardman v DPP (1974) 60 Cr App R 165
- Oulton v Radcliffe (1874) LR 9 CP 189
- Pioneer Concrete (North Coast) Pty Limited v Bennett [1972] Qd R 544
- Secombe v Bate, ex parte Bate (1888) 9 LR (NSW) 161