District Court New South Wales Medium Neutral Citation: Bassal v R [2015] NSWDC 257 Hearing dates: 6 August 2015 Date of orders: 06 August 2015 Decision date: 06 August 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The appeal is allowed and the AVO is quashed. Catchwords: CRIMINAL LAW – ADVO appeal Category: Principal judgment Parties: Michael Bassal The Queen Representation: Counsel: Mr M Preece (appellant) Solicitors: Director of Public Prosecurions (respondent) File Number(s): 2015/16702 Judgment 1. HIS HONOUR: Michael Bassal appeals against the making of an apprehended domestic violence order. The basis for the order was a magistrate's finding that he said certain words over the telephone when speaking to his ex-wife. To put the words in context I need to explain a bit about what had earlier occurred. 2. The appellant and his ex-wife were involved in Family Court proceedings. The children of the relationship had a good relationship with their father, the appellant, and orders were such that he had regular access, including access over school holidays. In defiance of Family Court orders his ex-wife moved both herself and, more importantly, the children, to Newcastle from where they were living in Sydney. This, not surprisingly, caused some upset in the mind of the appellant. It was in this context that he was alleged to have said to his ex-wife over the telephone "I'm going to send somebody up there. I swear to God if I get the girls back you'll never see them again". 3. Mr Preece, who appeared for the appellant in the Local Court and appears for him today, conceded, at least in the Local Court, that if those words were said, then the apprehended violence order was justified. His dispute, if I can call it that, was whether those words were said or whether the magistrate could be satisfied, on the balance of probabilities, that they were said. 4. I am not so sure that I should act on that concession. The words "I'm going to send somebody up there" when made in connection with "I swear to God if I get the girls back you'll never see them again" are perhaps capable of being interpreted as "I'm going to send someone up there to return the children to Sydney where they should be living in compliance with Family Court orders". 5. I myself have some doubts as to whether those words are sufficient to justify a reasonable fear in the appellant's ex-wife of a personal violence offence. 6. I need not actually resolve this because I am satisfied that the appeal should be allowed for other reasons. I have already mentioned that the appellant's ex-wife moved the children to Newcastle in defiance of Family Court orders. She wanted to enrol them in a local school but the school would not accept their enrolment unless one of two conditions were satisfied: firstly, that both parents signed the enrolment form; or if that was not possible, the children would still be enrolled if an apprehended violence order was in force. Quite clearly, the appellant was not going to sign any enrolment form which would have his children enrolled in a school in Newcastle when the Family Court required that they live in Sydney and so a current AVO was the only way in which the appellant's ex-wife could enrol the children in a Newcastle school. This provides a powerful motive for her to make a false allegation against the appellant. 7. I fully appreciate that the magistrate had opportunities which are denied me, in particular to see the witnesses as they gave their evidence. However it does not appear to me that the magistrate regarded as important any appearance of either witness in the witness box or took into account their demeanour while giving evidence. At least his Honour did not say so and, had that been a significant factor in his decision, I would have expected him to say so. 8. There are some matters capable of being relied on by the Crown. Firstly, the appellant ultimately agreed with the proposition that he had left a voicemail on his wife's mobile phone in which he said "Give us a call you slag". (He said that the reason the voicemail was transcribed as "Give us a call you slut" was because of some technical error in converting voice to text but whether the word was "slut" or "slag" does not really matter.) The Crown argues that that is consistent with a man who would say to his wife over the telephone on another occasion "I'm going to send somebody up there I swear to God if I get the girls back you'll never see them again". 9. The Crown's argument should be accepted but it should not be given too much weight. There is a significant difference between abusing someone, especially in the context of her having breached Family Court orders, and making a threat involving the commission of a personal violence offence. 10. Another aspect of this voicemail message is worthy of note. At one stage in the Local Court proceedings Mr Preece put to the complainant that that message simply did not exist. In other words he put a positive assertion to the complainant that she was lying when she said the message existed. Consistent with Mr Preece's obligations and duties as a barrister, I would not have expected him to have put that positive proposition unless his instructions were such that the message was a fabrication. 11. I am prepared therefore to use that circumstance as suggesting that the appellant must have been less than frank with Mr Preece at the time of the Local Court proceedings. The bar rules which govern Mr Preece's behaviour would not have allowed him to have put that positive question in the absence of instructions which justified that question being put. 12. On the other hand, this finding is somewhat balanced by the finding I am prepared to make the other way. It appears that in a letter prepared by the complainant's former solicitor reference was made to the appellant having threatened to kill his ex-wife at some stage. The complainant denied ever having made such a statement to her former solicitor. I would not have expected her former solicitor to make such a serious allegation in a letter unless there was good reason for doing so. So when it comes to questions of what the parties told their lawyers, it is effectively a draw. 13. I have to be satisfied on the balance of probabilities that, even assuming that the relevant words justify the making of an AVO, the words were in fact said. In circumstances where there was a powerful motive on the part of the complainant to enrol her children at a Newcastle school, in circumstances where she was in breach of Family Court orders and clearly regarded her position as being improved if an AVO was made, I am not satisfied on the balance of probabilities that the words were in fact said. I repeat, even if the words were said, I have some doubts as to whether I would have found that they justified the making of an AVO in the first place. 14. The appeal is allowed and the AVO is quashed. ********** 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: 09 November 2015