The High Court has quashed a District Court order restraining a man from contacting a complainant or going near her home or workplace, finding that the process did not give him a fair chance to challenge the evidence relied on.
The order had been made after the man was acquitted of a charge of harassment under the Non-Fatal Offences Against the Person Act 1997. The charge alleged that he put up defamatory or inflammatory posters about the complainant between 13 and 17 October 2010. The District Court dismissed the charge on 31 May 2012 after ruling that evidence obtained following his arrest was inadmissible.
The prosecution then applied for a restraining order under section 10(5) of the Act. Without hearing further evidence, the District Court ordered the man not to communicate with the complainant or approach within half a mile of any place where she lived or worked for three years. The order could be breached as a criminal offence.
In the judicial review, the man argued that the order was made without fair procedures and without an evidential basis. The Director of Public Prosecutions argued that the judge had a basis for making it and that the hearing was fair, including because the man's counsel had time to consider the law and make submissions about the order’s duration and geographical limits.
Justice Baker said the complainant’s evidence at trial had been given to address her response to the alleged posters, not a broader application for a restraining order. The defence had chosen not to test that evidence in the context of the charge, which focused on whether the man had put up the posters. The order was based entirely on the complainant’s evidence, and the man had no opportunity to test it for the separate purpose of establishing grounds for a restraining order or to present evidence in response.
The judge said notice of the application should have been given before the evidence concluded, so the accused could decide whether to cross-examine the complainant or call evidence. A short adjournment after the application was made did not remedy that problem. The court said the required notice and opportunity will depend on the circumstances of each case, but a person facing such an order must have reasonable opportunity to address its evidential and legal basis.
The High Court granted certiorari and quashed the restraining order. Having decided the case on fair procedures, Justice Baker did not consider the separate challenge that the order lacked an evidential basis. The judgment also noted that the legislation did not provide an appeal from this kind of order made after an acquittal.