District Court New South Wales Medium Neutral Citation: Mark William WALBURN v Alexander Frederick WALBURN [2011] NSWDC 113 Decision date: 12 August 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Under s20 of the Crimes (Appeal and Review) Act 2001 and in accordance with s 84 of the Crimes (Domestic and Personal) Violence Act 2007 I determine this appeal by setting aside the Apprehended Violence Order. Catchwords: CRIMINAL LAW - appeal against making of Apprehended Violence Order - protected persons are the mother and brother of the appellant - two specific incidents involving verbal arguments between the brothers - police attendance at the first incident - satisfied protected persons had 'reasonable grounds to fear' and in fact feared, the engagement by the appellant in conduct in which they would have been intimidated or felt stalked - whether conduct warranted the making of the order Legislation Cited: Crimes (Appeal and Review) Act 2001 s 20 Crimes (Domestic and Personal Violence) Act 2007 s 19, s 84 Category: Principal judgment Parties: Mark William Walburn Alexander Frederick Walburn Joan Walburn Representation: Mr M Finlay for the Director of Public Prosecutions Mr Mark Walburn in person File Number(s): 2010/54164 Decision under appeal Date of Decision: 2010-11-05 00:00:00 Before: Magistrate Gilmore Judgment 1. The Walburns are a family of three. There is 75 year old Mrs Joan Walburn and she has two sons. Mark is now aged 50 and Alex is now aged 46. 2. There has been good deal of recent tension between the brothers over their mother's care. The tension has extended to her assets and the ownership of the family home. 3. There is evidence that Mrs Walburn suffers from a form of dementia which is being treated. She also has other health problems. 4. Mrs Walburn lived in the family home in Rozelle for many years. There was some discussion in the last few years about selling the house and moving in with her son Alex and his family who live on the south coast. It is apparent that Mark Walburn was not happy with that discussion or that prospect. 5. Things came to a head on Sunday 21 February 2010. The issue was a very ordinary and innocent one and concerned whether or not Mr Alex Walburn would take Mrs Joan Walburn to the beach. 6. As it happened there was some discussion around the same time about whether or not Mrs Walburn would sell her house. It appears to be common ground - the evidence is and I accept - that Mrs Walburn made some remark about not intending to sell the house. Mark Walburn latched onto that remark and asked his mother to put it in writing. Alex Walburn's main concern was to get his mother to the beach and he was not concerned about her acknowledging in writing any stated intention about not selling the house. 7. The situation then deteriorated. The issue caused an eruption of the tension between the brothers. Mrs Walburn was in a bedroom. Mr Mark Walburn stood in the door. He acted in a way that prevented Mr Alex Walburn from going in. Mrs Walburn became upset and distressed. 8. At one stage the three of them went out towards the car. It was Mr Alex Walburn's intention to go the beach with his mother. Mark Walburn came out. The three of them then went back inside. There was a good deal of loud discussion and conversation. Mr Alex Walburn was so concerned that he called the police. 9. The police attended the scene. The police officer on the spot was an Officer BurfittWilliams. Officer Burfitt-Williams gave evidence to the following effect, in response to a question from Mr Mark Walburn, who was unrepresented - "I do recall telling you, you were acting like children and that it was ridiculous that - at the time I believe I was 25 - that a 25 year old had to tell you guys to grow up." 10. As it happened, Mr Mark Walburn's daughter, Amy, was present at the time. When asked whether her grandmother appeared stressed, she acknowledged that she did and appeared to be " a bit shocked ." She qualified that answer to say - " Not shocked, just - well, she was kind of used to it because you two would fight quite often, so she just sat there, kind of like, a bit upset really, probably." 11. The observations of these two witnesses - who were not the main persons involved - bears out my impression that what had happened on that morning was an eruption of the tension which had been present between the brothers for some time. I do now know how long but it was in existence before that day. 12. They had been sharing the care of their mother in the sense that she would either stay with Alex on the South Coast or with Mark, usually in her place in Rozelle. 13. Nevertheless, as a result of that, the evidence is clear that Joan Walburn and Alex Walburn were fearful and upset at Mr Mark Walburn's behaviour, despite Mr Alex Walburn's contribution in the sense, not of being blameworthy, but of engaging in argumentative conduct with his brother. 14. Just over a week after that incident, something else occurred. There was a visit to the doctor. Mrs Walburn had to go to RPA. Alex Walburn took her. Mark Walburn phoned and had a long conversation with the doctor and then turned up. 15. Once again, there was an issue which caused tension between them. There was an argument. It concerned the care of their mother. Mr Mark Walburn was obviously getting heated and Mr Alex Walburn was also getting upset at his brother's behaviour. The argument continued out to the car park where Alex Walburn had his car. He was going to take his mother home. Mark Walburn opened the door of the car and continued to talk to his mother. Whether he was shouting at her or talking to her, I am not sure, but Mr Alex Walburn became so frustrated that he drove the car away with the door still open and Mr Mark Walburn trying to talk to his mother. 16. Mr Mark Walburn was so upset by this that he went to the police. 17. Once again I am not suggesting that Mr Alex Walburn's behaviour is blameworthy. It was the product, I expect, of a good deal of frustration which existed between the brothers over the issue of their mother and perhaps their mother's estate. 18. Based upon these two incidents - the first on 21 February 2010 and the second on 1 March 2010 - Mr Alex Walburn and his mother secured from Local Court Magistrate Gilmore, after a hearing of some days, an Apprehended Domestic Violence Order or it may have been an Apprehended Personal Violence Order, which kind does not really matter. It was granted against Mr Mark Walburn. 19. Mr Mark Walburn has exercised his right to appeal to the District Court against that order and his case came on before me. 20. When a person appeals to the District Court from an order of this sort, the District Court judge hears the case afresh and makes the kind of order which the District Court judge thinks is the right order. The District Court judge may hear fresh evidence, and in this case fresh evidence was called both before me and before two other judges who were previously involved but disqualified themselves. The judge then makes up his or her own mind about what the appropriate order should be. The judge does not look at the magistrate's judgment in order to see whether it contains any error. The Court of Appeal has said the use of the magistrate's judgment is fairly limited - it may involve matters which the magistrate would have the benefit of observing in court which the judge does not have. 21. So in this case the question for me is whether I too would grant a Apprehended Personal Violence Order or Apprehended Domestic Violence Order in favour of Mr Alex Walburn and his mother against Mr Mark Walburn. 22. The test for both orders is essentially the same. I have to be satisfied on the balance of probabilities that Mr Alex Walburn and Mrs Joan Walburn have " reasonable grounds to fear ", and in fact fear, the commission by Mark Walburn of a personal violence offence against them or the engagement by Mr Mark Walburn in conduct in which he intimidates them or stalks them " being conduct that, in the opinion of the court, is sufficient to warrant the making of the order." 23. I have quoted from the provisions of s16 of the Crimes (Domestic and Personal Violence) Act 2007 which are in the same terms as s19. The former deals with Apprehended Domestic Violence Orders and the latter with Apprehended Personal Violence Orders. 24. As a result of the two incidents, I am satisfied on the balance of probabilities that both Mr Alex Walburn and his mother had reasonable grounds to fear, and in fact feared, the engagement by Mr Mark Walburn in conduct in which they would have been intimidated or felt stalked. The evidence satisfies me that both of them were exhausted by the behaviour of Mr Mark Walburn. 25. However, I have to be additionally satisfied that it is conduct that, in my opinion, is sufficient to warrant the making of the order. It is that issue which I invited Mr M Finlay, who appears for the respondent Director of Public Prosecutions, to specifically address. 26. He took me to the evidence in a detailed and helpful way and submitted that it is clear that Mrs Joan Walburn wanted the orders to continue and that she regarded them as being in her interests. He submitted that Mr Alex Walburn is of the same view. Mr Finlay acknowledged the stress between the brothers and argued that Mr Mark Walburn has a fixation on an issue about whether their mother was unduly influenced by his brother Alex. 27. I make it clear that I make no such finding of undue influence. I do not regard it as particularly relevant to make such a finding nor do I need to determine that issue at all. 28. Mr Finlay reminded me of the evidence of Alex Walburn that what has occurred since these incidents is that Mrs Joan Walburn has in fact proceeded to sell the house in Rozelle. She has bought property on the South Coast with Alex Walburn and his partner and is living very happily down on the South Coast and becoming engaged with the family and the community and is much more settled. 29. That is an example of the kind of evidence which can be before a judge on appeal which is different to the evidence before the magistrate because time has moved on and events have occurred which mean that the circumstances have changed. 30. I am not of the opinion that the conduct which was engaged in by Mark Walburn, on the two occasions relied upon, is such that it is sufficient to warrant the making of an order, either a Apprehended Personal Violence or Apprehended Domestic Violence order. (Mr Finlay argues, and I accept, that both provisions probably apply.) 31. There is a good deal of evidence from Mr Alex Walburn about his brother's general behaviour being frustrating and annoying and irritating and bullying and intimidating but the evidence is not specific which would enable me to make a finding to the effect that it warranted a continuation of the order. The evidence is directed mostly to events last year. 32. It is very important in cases such as this, that before a judge makes a significant order restricting the liberty of a person to engage with other members of the community, that the judge is satisfied, on the evidence, that the order is warranted. 33. In my opinion this matter has been a blow-up of an ongoing issue within the family. It has blown up on a couple of specific occasions that I have heard a good deal of evidence about. Those blow-ups may have warranted the order at the time but in the events that have occurred since then, particularly given Mrs Walburn's move well away from Sydney where Mr Mark Walburn lives to somewhere near Ulladulla, the conduct is no longer sufficient to warrant the making of the order. 34. Accordingly, I propose to allow Mr Mark Walburn's appeal. The formal orders which I make are made under s20 of the Crimes (Appeal and Review) Act 2001 in accordance with s84 of the Crimes (Domestic and Personal) Violence Act 2007. The orders are that I determine this appeal by Mr Mark Walburn against the making of the Apprehended Violence Order by setting aside the order. HIS HONOUR: That is it Mr Mark Walburn you have won your case. The Apprehended Domestic Violence or Apprehended Personal Violence Order is set aside. The exhibits are returned to my associate. I am told that it might take some while - and my associate has this experience from working in the Magistrate's Court - for the appeal to be processed, so give it a few hours or a day or so before you attempt to contact your mother or do anything which might otherwise be regarded as a breach of the order. You do not want to find that the police are not aware of the order which I have just made. I do not think that you could get a cost order because you are self represented but you are not applying for costs, are you? APPELLANT: No, your Honour. HIS HONOUR: I think you wanted one of the voir dire exhibits back. APPELLANT: Yes. HIS HONOUR: I am not sure, my associate will give them to the court officer and you may have a look at them. Ms O'Meagher, anything to add? O'MEAGHER: No, your Honour. HIS HONOUR: Thank you Ms O'Meagher. Thank you Mr Walburn. You are both excused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2011