District Court New South Wales Medium Neutral Citation: Ferris v Atherton [2014] NSWDC 272 Hearing dates: 27 May 2014 Decision date: 27 May 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against dismissal of apprehended personal violence order - procedure - application of Local Court Practice Note Number 2 of 2012 - cases to be conducted on the papers - misconceived basis for dismissal of proceedings in Local Court - test in s19 of the Crimes (Domestic and Personal Violence) Act 2007 - evidence of voice identification - not satisfied on the balance of probabilities of reasonable grounds to fear other person Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 19, 86(2) Local Court Practice Note Number 2 of 2012, cll 6.2, 6.3, 6.6 Civil Procedure Act 2005 Local Court Rules 2009, r 4.4 Uniform Civil Procedure Rules 2005, rr13.1, 13.4(1)(b) Category: Principal judgment Parties: Peter James Ferris (applicant) Jed Atherton (respondent) Representation: Counsel: S Brennan (applicant) B Rosic (respondent) File Number(s): 2013/00151082 Decision under appeal Court or tribunal: Local Court, Downing Centre Date of Decision: 28 October 2013 Before: Local Court, Downing Centre File Number(s): 2013/00151082 Judgment 1. This is an appeal which requires me to unravel what happened in the Local Court. 2. The learned magistrate was wanting to deal with the case with appropriate expedition and fairness and in accordance with the guidelines which are provided. But it seems to me, with respect, that the case went off the rails at one stage. The question for me remains whether I should nevertheless allow the appeal. 3. I should start at the beginning. Peter Ferris and Jed Atherton were both involved in the Parramatta Basketball Association. They had a serious falling-out. Mr Ferris approached the Local Court and issued an application for an apprehended personal violence order. That application was issued under the Crimes (Domestic and Personal Violence) Act 2007. Once that application was issued, Local Court Practice Note Number 2 of 2012 applied to the preparation and conduct of the case. I will come back to that practice note. 4. The case came on before her Honour Magistrate Stapleton sitting in the Downing Centre on 28 October 2013. The primary decision appealed against is recorded at T 23 of the transcript (which became exhibit A in the appeal before me). There her Honour ordered that the proceedings be dismissed pursuant to Local Court Rule 4.4, on the ground that there was no reasonable prospect of success. 5. Mr Ferris was the applicant and was represented by Mr S Brennan of counsel before her Honour and before me today in the appeal. Mr B Rosic of counsel appeared for Mr Atherton before her Honour and again before me today. 6. I earlier referred to the case going off the rails. By that I mean that the basis upon which her Honour dismissed the proceedings, namely Local Court Rule 4.4, was in my respectful opinion misconceived. As Mr Brennan pointed out, the part in which Rule 4.4 of the Local Court Rules 2009 appears does not apply to "proceedings commenced under the Crimes (Domestic and Personal Violence) Act 2007": see Rule 4.1. Her Honour also made reference to the Uniform Civil Procedure Rules - specifically UCPR 13.1. But that seems to me to be, with respect, an error and the reference should have been to UCPR 13.4. Indeed, in her reasons her Honour quoted (at T21.19) what appears to be an extract from UCPR 13.4(1)(b). 7. I enquired of Mr Rosic how her Honour could determine the case by reference to the Uniform Civil Procedure Rules. Mr Rosic took me to s 86(2) of the Crimes (Domestic and Personal Violence) Act which provides that "the Rules made for the purposes of this Act may adopt, with or without modification, the provisions of any Rules made under the Civil Procedure Act 2005." Mr Rosic's argument is that her Honour had adopted UCPR 13. However s 86(2) does not provide for a judicial officer to adopt the rules but for "The Rules" themselves - which are made under the Crimes (Domestic and Personal Violence) Act 2007 - to adopt any Civil Procedure Act rules. Mr Rosic was not able to take me to any such rule which provided for an adoption of UCPR 13. No doubt that is because it does not exist. 8. Because her Honour was determining the case by reference to notions of summary dismissal she made references to "taking the plaintiff's case at its highest": see T 21.40. Her Honour further said that it is "no light decision to summarily dismiss a matter on the day on which it was fixed for hearing": see T23.07. 9. I engaged Mr Brennan and Mr Rosic in the hearing of this appeal in a good deal of discussion about just what had occurred before her Honour. It appeared clear to me that, for the reasons I have just given, her Honour did not have the power to act under either the Uniform Civil Procedure Rules or Pt 4 of the Local Court Rules. 10. It is relevant to make an observation about an aspect of the case at this point. In the statement of Mr Ferris he said the basis for his application was a telephone call. Threatening words were used to him in that call. There seems to be no issue that the words were indeed threatening. In his statement, which was exhibit 1 before her Honour and which became part of exhibit 1 before me, Mr Ferris said that he "recognised the voice as Jed Atherton's". That is significant because one of the conclusions of her Honour (at T23.15) was that there was "no basis upon which I can judge the strengths of the voice identification by the applicant." Her Honour added that the content of the conversation did not assist either. I take that to be a reference to Mr Ferris' account that he referred to "Jed". There appeared to be no acknowledgment or acceptance by the caller that he was Jed, but nor was there any challenge by the caller to being addressed as Jed. 11. It is now appropriate to return to Local Court Practice Note Number 2 of 2012. It was issued by his Honour the Chief Magistrate on 24 April 2012 and has since been amended. Clause 6.2 of the Practice Note provides that "unless the Court otherwise orders, a witness' evidence in chief at a hearing must be given by written statement". Clause 6.3 provides for the Court giving directions about service of such statements, being statements "of the oral evidence that the party intends to adduce in chief on any question of fact to be decided at a hearing". Clause 6.6 provides for a significant consequence of the statements being served. The statement "is to stand as the whole" of the witness' "evidence in chief" and "the party may not adduce from that person any further evidence in chief" except by leave of the Court. When the proceedings are first before the Court for directions, a timetable is given to the parties which provides for service of the statements and emphasises at the foot that it is "important to comply with the above timetable. If statements are not exchanged prior the hearing date, it will be necessary to seek leave of the Court to give oral evidence." 12. Returning to the voice identification question, her Honour was alert to the significance of such evidence early in the proceedings. Over T3-4 there is discussion about voice recognition evidence. Her Honour also indicates (at T4) that she is aware of disposing of the case efficiently so that it does not "take more time than is strictly necessary". Her Honour makes reference to the appropriate factors which are relevant to that observation. Her Honour then observes that the "case will be conducted strictly in accordance with the Practice Note in terms of evidence-in-chief and the like". Her Honour then adjourned for a period of time. 13. When her Honour returned, Mr Brennan tendered two exhibits, namely, the statement of his client, Peter Ferris, and a statement by his client's wife, Catherine Ferris. The transcript then notes (at T8.40) that there was discussion as to witnesses to be called. Mr Brennan called his client "to give some additional evidence, that is about the calls made after the date of the date for filing". Mr Rosic objected because he had no notice of it. There was some discussion about the nature of the evidence. Her Honour had observed after Mr Rosic's application, in accordance with her earlier indication, that "the Practice Note permits such evidence to be called with leave". She heard the parties and then determined to "refuse the application on the basis that there has been no notice given to the defendant of this further allegation, notwithstanding that it was in the applicant's case that these two further phone calls were made." The reference is to telephone calls after those referred to in the statements. 14. Her Honour then asked Mr Brennan whether there was any further documentary evidence to tender and Mr Brennan answered, "No, there's no more documentary evidence." 15. Mr Rosic then indicated that he wanted to approach the case "firstly by tendering some material and making a no cause of action submission". That submission was with respect misconceived and it seems to me led her Honour into the error to do with the Uniform Civil Procedure Rules and the Local Court Rules. Mr Rosic went into evidence by tendering further exhibits which comprised, amongst other things, the telephone records. In effect, they demonstrated that his client's telephone showed no record of a call to Mr Ferris and the number from which the offending calls originated was that of a stranger. Again, Mr Rosic indicated (at T16) his "submission is that there is no cause of action". 16. Her Honour then heard argument based upon the assumption that she was entering into the determination of a case where it was claimed that there was no reasonable cause of action. Nevertheless her Honour indicated that she took Mr Ferris' "case at its highest". Her Honour then made the ruling which is the subject of the challenge about which I have heard argument. 17. Mr Brennan complains that he was given no opportunity to supplement the evidence of his client. He might have called evidence to the effect that his client still entertained some apprehension of violence. He probably would have called evidence to supplement his client's assertion that he recognised the voice of Mr Atherton. I can understand Mr Brennan's sense of grievance. Matters proceeded fairly quickly and, as I have said, they were proceeding according to the wrong legal parameters. 18. For reasons which I now give, I am of the opinion that I should dismiss the appeal. 19. It seems to me that what in effect her Honour determined was the hearing of the case. The Practice Note envisages that these cases are to be conducted on the papers, so to speak. Any oral evidence is to be the subject of a leave application. It obviously puts pressure on the applicant to make sure that their case is complete before hearing in case they fail to obtain leave to supplement their statements. 20. Procedurally, it seems to me that her Honour was aware of the significance of the Practice Note. Her Honour heard an application to supplement the evidence and dismissed it. There would have been an opportunity for Mr Brennan to ask that the evidence be supplemented in a way additional to the way that he asked for. He was on notice of the issue about voice identification. Having said that, I can understand, as he now points out, that matters moved fairly quickly and according to the wrong legal parameters as I have said. 21. In hearing the case again on the material before her Honour, as I do, and determining it as a final hearing, I would reach the same conclusion as her Honour did. There was an assertion by Mr Ferris that he had recognised the voice, but no basis laid for that assertion. The test is on the balance of probabilities. It may not have taken much more evidence to tip the scales in favour of Mr Ferris, but to my mind he has not convinced me on the balance that it was Mr Atherton. There was also the evidence tendered on behalf of Mr Atherton about his phone and the phone from which the calls were made. That I take into account as well in reaching the opinion that I do. 22. In other words, taking the evidence as complete, as I think her Honour did, but applying the test provided by s 19 of the Crimes (Domestic and Personal Violence) Act I am not satisfied on the balance of probabilities that an apprehended personal violence order ought to be made against Mr Atherton. 23. For those reasons I propose to dismiss the appeal. ********** Amendments 20 February 2015 - Appeal details appended to coversheet 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: 20 February 2015