Contents

Table of Contents

Queensland

Court of Appeal

R v OAC [2024] QCA 52 (9 April 2024) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Torture' - ‘Threat to kill’ - ‘Sexual and reproductive harm’ - ‘Emotional and psychological abuse’ - ‘Economic and financial abuse’ - ‘Rape’ - ‘Prevention order’ - ‘History of domestic violence and family violence’ - ‘Mental health’

Charges: 5x common assault; 2x strangulation in a domestic setting, 3x assault occasioning bodily harm, 3x deprivation of liberty, 1x torture, 1x contravention of protection order, 1x assault occasioning bodily harm while armed, 1x wilful damage, 1 x threats, 2x rape, 1x using a carriage service to make a threat to kill

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant pleaded guilty to 32 counts on three separate indictments. The majority of the offences concerned physical domestic violence against the applicant’s female partner between January and August 2019. [16]–[65]; [72] During this period, the applicant was served with and subsequently breached a protection order. [36]–[38] The most serious offending occurred within 16 hours, across two days: the applicant tortured his partner, assaulting, choking and raping her. [2]; [44]–[65]

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

the sentencing judge erred by having regard to uncharged acts; and

2.

the sentence is manifestly excessive. [12]

Decision and Reasoning : Application for leave refused. Morrison JA (with whom Mullins P and Brown J agree) dismissed the applicant’s first ground of appeal. The uncharged acts were expressly confined as forming part of the background, and at no time were framed as relevant to the offending conduct. That the uncharged acts merely provided relevant context to the domestic violence offences was appreciated by the sentencing judge. [99]–[107]

Morrison JA further dismissed the applicant’s second ground of appeal that the imposition of a serious violent offence declaration is inappropriate as the applicant suffered from serious psychological issues at the time of offending. [114] Available medical assessments did not disclose a diagnosis of ‘mental illness or abnormality’. [120]

The absence of such a diagnosis is relevant to the submission that general deterrence did not have such a call on the sentencing process that it meant a serious violent offence declaration should not be made; put another way, that making such a declaration would render the sentence manifestly excessive [121]

As is apparent from Neumann, there must be an assessment of two relevant factors present in order that the consideration of mitigating factors or that of general deterrence are affected. The first is the mental abnormality. The second is a causal link between that abnormality and the offending conduct.

Neither is present in the applicant’s case. What the report reveals is that drug-induced psychosis was a likely operative factor. That is not, in my view, sufficient to call into question the making of the serious violent offence declarations [123]–[124]

R v WBZ [2023] QCA 256 (15 December 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’ - ‘inconsistent verdicts’

Proceedings: Appeal against conviction.

Charges: 2x common assault, 2x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x wilful damage.

Facts: The male applicant and female complainant had been in a domestic relationship from October 2016 to January 2021. On two separate occasions, the applicant physically assaulted the complainant, backhanding, kicking, strangling and throwing her on the floor. On both occasions, the offending took place in the presence of the couple’s baby. [11]–[35]

Grounds of Appeal : The applicant appeals against his conviction for one count of strangulation on the basis that it was unreasonable, irreconcilable with the verdicts of acquittal.

Decision and Reasoning : Appeal dismissed. Flanagan JA (with whom Buss AJA and Kelly J agree) held the inconsistency across the verdicts of guilty and not guilty was reconcilable. According to Flanagan JA, each count was ‘readily explicable by reference’ to different sets of considerations, both factual and legal [67]; notably, the inconsistencies in the evidence provided by the complainant and applicant, and differences in jury directions.

R v MDS [2023] QCA 228 (21 November 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against sentence.

Charges: 4x wilful damage, 2x common assault, 1x assault occasioning bodily harm, 1x strangulation in a domestic setting.

Facts: The male applicant and female complainant had been in a long-term de facto relationship, having five children together, prior to separation in 2015. The applicant and the complainant, both intoxicated, had a verbal argument which turned into a physical altercation. The applicant physically assaulted the complainant, including smashing her headphones with a golf club [4], assaulting the complainant with ‘cane knives’ and strangling her with a wicker basket. [3]–[13] The incident occurred in front of the couple’s 16 year old son, who called the police. [12]

The applicant was found guilty of the offences and was sentenced to 12 months imprisonment for each count of wilful damage, 18 months imprisonment for each count of common assault, 2 years imprisonment for the count of assault occasioning bodily harm and 3 years imprisonment for the count of strangulation in a domestic setting – where all sentences were ordered to be served concurrently.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

•

the sentence was manifestly excessive; and

•

the sentencing judge made a specific error (ie, the judge’s statement that ‘someone in the victim’s position could have been dead within a short space of time’ was ‘factually inapposite’) [26]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Dalton (with whom Morrison and Boddice JJA agree) found the sentence to neither be manifestly excessive or erroneous with respect to the sentencing judge’s treatment of the offence of strangulation:

The sentencing judge obviously regarded strangulation as the most serious of these offences, although it must be noted that the common assault with the cane knives was also a very serious offence [14]

That the primary judge took a balanced view of the strangulation is plain from the remarks which I have extracted above. In particular her Honour recognised that the period of strangulation was short; that bare hands were not used, and that the force used was not such as to cause loss of consciousness or control of the bladder. Her Honour expressly recognised that this choking was not of the most serious kind. [28]

R v LBB [2023] QCA 162 (11 August 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Threat’ - ‘Medical evidence’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against conviction.

Charges: 1x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x threatening violence. The offending occurred in one episode of domestic violence, against the applicant’s wife.

Facts: The male applicant was convicted on four counts of domestic violence offences; all of which occurred on 16 January 2019 against the applicant’s wife (the complainant). The complainant’s evidence was that the applicant strangled her, after she refused to allow him access to her mobile phone. As the complainant attempted to leave, the applicant grabbed her and threw her onto the floor and threatened to kill her and their child. [4]–[6] The complainant attended the doctor later that day.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

The wrongful admission of medical evidence concerning the complainant’s injuries; and

2.

The false prosecutorial claims concerning the medical evidence.

Decision and Reasoning : Appeal allowed, conviction set aside and retrial ordered. Judge Dalton (with whom Boddice JA and Bradley J agree) held ‘almost all’ of the evidence led from the doctor’s consultation notes with the complainant to be inadmissible and highly prejudicial to the applicant. [21] Such evidence led from the notes included (and were not limited to):

•

A detailed narrative amounting a complaint against the appellant and a description of his physically assaulting her …

•

sympathetically recorded details as to the complainant’s general domestic circumstances …

•

a hearsay history of the appellant’s having been angry and having pushed and shoved the complainant in the past …. [21]

Judge Dalton equally regarded the prosecution’s address to the jury concerning this evidence improper, as too the prosecution’s reliance upon the existence of a fracture (suffered by the complainant) which was not established [55]–[56]:

It was improper for the prosecutor to seek to use the inadmissible narrative evidence she had led from the doctor to attempt to bolster the complainant’s credit as if the narrative given to the doctor on 7 October 2021 was a fresh complaint in a sexual assault case. The prosecutor expressly used this evidence to try to bolster the credit of the complainant and urged the jury not to have a reasonable doubt because of what the appellant had told police [27]

R v WBX [2023] QCA 151 (28 July 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Prevention order’ - ‘Breach of protection order’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Following, harassing and monitoring’

Proceedings: Appeal against sentence.

Charges: 1x assault occasioning bodily harm, 7x contravention of prevention order

Facts: The male applicant was convicted on domestic violence offences and sentenced to six months’ imprisonment and an order for compensatory payment ($10,000 to the complainant).

The applicant and female complainant had been in a ‘toxic’ domestic relationship for two years.[9] A temporary protection order was placed against the applicant in May 2021: interaction between the complainant and applicant was conditional on it being agreed upon in writing. [15] The offending took place on June 2021, when the complainant and applicant were together at the applicant’s residence: an argument turned into a physical altercation, with the applicant physically assaulting and strangling/choking the complainant. Following the incident, the applicant proceeded to contact the complainant for the next six days, contrary to the protection order. [13]–[16]

Grounds of Appeal : The applicant appealed the sentence on the ground that it was manifestly excessive, having regard to the applicant’s: previously undiagnosed medical condition; plea of guilty; lack of prior criminal history; and ‘new and functioning domestic relationship’. [21]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Boddice (with whom Dalton and Flanagan JJA agree) found the sentencing judge to have made no error:

The protracted nature of the applicant’s criminal conduct, including the repeated contraventions of the domestic violence order in the following days, was of a nature where the imposition of a sentence of imprisonment fell well within a sound exercise of the sentencing discretion, notwithstanding the early pleas of guilty, lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation. Such a conclusion is supported by a consideration of the relevant authorities [35]–[36]

R v RBJ [2023] QCA 162 (13 June 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Inconsistent verdict’

Proceedings: Appeal against conviction.

Charges: 3 x rape.

Facts: The male applicant was charged with three counts of rape; all of which were domestic violence offences. Following a trial before a jury, the applicant was only convicted of one count (and acquitted of two counts).

At the time of offending, the male applicant and female complainant were in a relationship. On 10 October 2022, the applicant attended the complainant’s mother’s house and entered the complainant’s bedroom uninvited while she was asleep. Despite the complainant’s protest, the applicant forcibly removed her clothes and raped her three times. Between the first and second time (ie, count 1 and 2), the complainant went to the bathroom to have a shower.

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The verdict on count 1 is unreasonable and inconsistent with the verdicts of acquittal on counts 2 and 3; and

2.

Miscarriage of justice (ie, trial judge did not provide jury directions on the use of text-message evidence).

Decision and Reasoning : Appeal allowed, conviction set aside and new trial ordered on count 1. Drawing on the principles of inconsistent verdicts set out in MacKenzie v The Queen (1996) 190 CLR 348, 365–8, the Court (Mullins P and Morrison and Flanagan JJA) regarded the jury’s treatment of count 1 as distinct from counts 2 and 3 to not be unreasonable:

It could not be said to be unreasonable that the jury treated the circumstances in which count 1 was committed when the appellant arrived in the complainant’s bedroom uninvited as different from the circumstances of counts 2 and 3 when the complainant returned to the bedroom without wearing clothes while the appellant was still there [39]

It was open for the jury to regard the complainant’s evidence, relating to the text messages sent following the offending, as only constituting count 1:

The text exchange immediately after the complainant arrived at work, in which she confirmed that it was not acceptable for the appellant to show up in her house unannounced and to have sexual intercourse with her after she said “no” 100 times was more referable to count 1 than the other counts. When the appellant then sent a message reminding the complainant that she said she did not want him to go, the complainant’s response was “that was way after” which could also be taken as referable to “way after” the act of sexual intercourse when he first arrived that constituted count 1 [38]

R v Kynuna [2023] QCA 112 (30 May 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of Justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Following, harassing and monitoring’ - ‘Choking/strangulation’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Threat to kill’ - ‘Evidence’ - ‘Expert opinion’ - ‘Jury directions’

Proceedings: Appeal against conviction.

Charges: 3 x rape, 1 x attempted rape

Facts: The male applicant was convicted of one count of attempted rape. The applicant and complainant were in a sexual relationship, which after some time the complainant did not wish to continue. Despite the relationship ending, the applicant continued to pursue the complainant via text messages and loitering at her place of work throughout May 2020. On 3 June 2020, the applicant physically grabbed the complainant by the neck at her place of work and threatened to ‘kill’ her if she continued to ignore him. [16]–[17] Following the applicant’s demands, the complainant drove her vehicle to a deserted place and was physically forced to perform oral and anal sex. [18]–[25]

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The trial judge failed to discharge a jury following the admission of inadmissible and/or highly prejudicial evidence;

2.

The trial judge failed to provide adequate jury directions on opinion evidence; and

3.

The verdict is unreasonable.

Decision and Reasoning : Appeal allowed. Verdict set aside and retrial ordered.

Morrison JA (with whom Mullins P and Boddice JA agree) held the trial judge’s treatment of opinion evidence — specifically the opinion of a forensic nurse that ‘it was unusual to find multiple lacerations to the fourchette in consensual sex’ [48] — to be inadequate.

The Crown prosecutor failed to make reference to the evidence in their opening address [54] and to confine the use of the evidence to the relevant charge (ie, attempted anal rape). [56]–[57] The trial judge failed to correct any misuse of the evidence by the jury through an appropriate direction: ‘The only direction given was one concerned with how to deal with expert evidence. In itself, that was a misdirection because the forensic nurse examiner’s evidence was not expert evidence.’ [58] Consequently, the evidence should have been excluded as both ‘inadmissible’ and ‘prejudicial’ to the applicant. [60]

However, Morrison JA did not find the verdict to be unreasonable. [69] The ‘identified weaknesses in the evidence’ did not reduce the ‘probative value’ of the evidence so as to create ‘a significant possibility that an innocent person has been convicted’. [76]

R v WBV [2023] QCA 79 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Choking/strangulation’ - ‘History of domestic violence and family violence’ - ‘Parole’

Proceedings: Application for leave to appeal against sentence.

Charges: 1x assault occasioning bodily harm whilst armed; 1x wilful damage; 2x choking in a domestic setting; 1x assault occasioning bodily harm (domestic violence offence) 1x wilful damage (domestic violence setting); 1x assault occasioning bodily harm; 1x suppling a dangerous drug with a circumstance of aggravation.

Facts: The male applicant entered early pleas to four indictments and was sentenced to five years’ imprisonment. The offending was perpetrated against the applicant’s female partner in their home. On 6 August 2020, the applicant verbally assaulted the complainant, threatening her with a knife. [30] On 19 November 2021, the applicant physically and verbally assaulted the complainant, punching her in the face, and strangling her twice, causing her to lose consciousness multiple times. [19]–[23] On 19 May 2022, the applicant assaulted a male co-worker. [33]–[34]

Grounds of Appeal : The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive. Particularly, the applicant contended that the primary judge:

1.

started ‘too high’ in calculating the appropriate global sentence for the most serious offending — the two counts of choking in a domestic setting;

2.

departed from the ‘rule of thumb of one-third in imposing a parole eligibility date at the 40% mark of the head sentence’; and

3.

did not accede to the submission of defence counsel in respect of certainty of release [11]

Decision and Reasoning : Application to leave dismissed. Crow J (with whom Dalton and Boddice JJA agree) dismissed the applicant’s submission that the head sentence was ‘too high’, having regard to the applicant’s ‘antecedents, the serious nature of the offending of 19 November 2021, and the accumulation of the criminality of the offending of 6 August 2020 and 19 May 2022’. [36]

With respect to the non-parole date, Crow J (with whom Dalton and Boddice JJA agree) held that the ‘common practice of a one third reduction is not a rule’. [39] Rather, the determination of a non-parole period is made with regard to ‘the specific circumstances of the offender including his antecedents, character, and any prior criminal history’. [40]

Applying these factors to the present case, Crow J held the date to be appropriate:

The applicant’s prior criminal history of serious violence, his lack of anger control, his serious difficulty with alcohol and drugs, his poor prison record, his offence of supplying dangerous drugs in a correctional facility are each a circumstance supporting the parole eligibility date being set at two years [51]

R v BEA [2023] QCA 78 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Appeal against conviction’ - ‘Manifestly excessive’ - ‘Unsafe/unreasonable jury verdict’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Protection order’ - ‘History of domestic violence and family violence’ - ‘victim’s mental health’

Proceedings: Appeal against conviction.

Charges: 13x rape, 2x assault occasioning bodily harm, 3x common assault.

Facts: Following a trial by jury, the male applicant was found guilty of thirteen counts of rape, two counts of assault occasioning bodily harm and three counts of common assaults. Each count involved the aggravating circumstance of being a domestic violence offence [3]: the applicant and female complainant were in a de facto relationship between 2013 and 2015. In this period, the complainant had received a protection order against the applicant. In 2014, the applicant contravened the protection order thrice and was imprisoned for nine months. [74] The female complainant reported the applicant’s offending in 2018. [29] The applicant was sentenced to (11 years head sentence for two counts of rape).

Grounds of Appeal : The applicant appealed against his conviction on several grounds.

1.

Unsafe and unsatisfactory jury verdicts (ie, complainant’s evidence was uncorroborated, ‘inconsistent [and] improbable’ and the complainant suffered from a mental illness). [6]

2.

Manifestly excessive head sentence for two counts of rape (11 years’ imprisonment).

Decision and Reasoning : Appeal dismissed.

With respect to the first ground of appeal, Bradley J (with whom Dalton JA and Gotterson AJA agree) held the evidence of the complainant (on which the verdict rested) to not be ‘improbable or incredible’ [10]. Further, the applicant’s evidence concerning the complainant’s mental health was erroneous and misleading. [22] Contrary to the applicant’s submission, the complainant suffered from depression (not bipolar disorder) which ‘does not raise a reasonable doubt about her credit or the reliability of her evidence’. [26]

Bradley J further held that the complainant’s two year delay in reporting the offences did not constitute a ‘significant forensic disadvantage’ to the applicant [34]–[35]:

The statute excludes the mere fact of delay as sufficient to show such a disadvantage and requires the nature of the disadvantage to be identified.7 The accused bears the onus of establishing there is a significant forensic disadvantage and that it is a consequence of the delay. The disadvantage must be forensic, so it must be a disadvantage in challenging, producing, or giving evidence in the conduct of the case

In the present case, no evidence likely to assist the appellant, which earlier existed, had been lost, gone missing, or become unavailable to him. No witness had died or become unlocatable. No one’s memory had been lost. The medical tests and photographs adverted to by the appellant were never within his power to obtain without the complainant’s consent. There was no evidence before the trial judge that the appellant had suffered a significant forensic disadvantage because of the delay in reporting the offences.

R v FBC [2023] QCA 74 (24 April 2023) – Queensland Court of Appeal

‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Firearm’ – ‘Manifest excess’ – ‘Physical abuse’ – ‘Protection order’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Suicide threat’ – ‘Threats to children’ – ‘Threats to kill’ – ‘Weapons’

Charges: 3x common assault, 2x wilful damage, 1x strangulation in domestic setting, 2 x assault occasioning bodily harm, 1x rape, 3x dangerous conduct using a weapon (all domestic violence offences except 1 x assault occasioning bodily harm).

Proceedings: Appeal against sentence.

Grounds: The sentence was manifestly excessive.

Facts: The applicant was sentenced to nine years imprisonment for rape and lesser concurrent periods of imprisonment for the remaining charges, being eligible for parole after serving 6 years. The applicant contended that the sentence was manifestly excessive.

The majority of the offending was committed against the applicant’s former partner over a 2.5-year period. During the relationship, the complainant had taken out protection orders against the applicant and he had been physically abusive, including incidents where he placed her in a headlock, choked her and punched her in the face.

The complainant left the family home after discovering that the applicant had been unfaithful. Following this, there was an incident where the applicant came to the complainant’s home and violently anally raped her, causing injury. Several months later the complainant asked the police to conduct a welfare check on the applicant. He then came to her house with a gun, aiming it at their two young children and threatening to shoot her, the children and himself.

Reasoning and decision: Appeal dismissed.

Boddice JA (Mullins P and Flanagan JA agreeing) held that the sentence was not unreasonable or unjust given the ‘depravity and persistence’ of the offending [31], which occurred over a significant period and included serious violence, protracted rape and aiming a loaded weapon at very young children. The authorities supported the sentencing judge’s observation that protracted rape would in itself attract a 10-year head sentence, using the case of R v TAQ [2020] QCA 200 as the most helpful yardstick but noting its distinguishing features. Boddice JA concluded that the period of actual custody reflected the criminality of the applicant, particularly the need for deterrence and denunciation in relation to the threats to the children [30].

R v SDI [2023] QCA 67 (18 April 2023) – Queensland Court of Appeal

‘Attempt to pervert the course of justice’ – ‘Circumstantial evidence’ – ‘Evidence’ – ‘Evidence of monitoring’ – ‘Evidence of stalking’ – ‘Evidence of technology-facilitated abuse’ – ‘False complaints’ – ‘Following, harassing and monitoring’ – ‘Inference drawn from nature of searches’ – ‘Judicial notice’ – ‘Judicial notice that mobile phones and laptops are prima facie accurate’ – ‘Rebuttable presumption of the accuracy of 'notorious' technical instruments’ – ‘Stalking’ – ‘Technology facilitated abuse’

Proceedings: Application to adduce further evidence, appeal against conviction for stalking.

Charges: 1x stalking, 1x attempting to pervert the course of justice.

Grounds of appeal:

1.

Verdicts unreasonable or unsupported by evidence

2.

Error in law in admitting documents

3.

Error in law in directing that it was open to find that the appellant caused ‘detriment’

4.

Error in fact in finding without evidence that the appellant and complainant had been married, renewed their lease and other matters

5.

Error in law by failing to rule on admissibility of two exhibits

6.

Denial of fair trial in refusal to adduce evidence

Facts: The complainant woman and defendant man were married but after the relationship deteriorated the complainant left the family home with their son and her daughter from a previous relationship. The defendant was alleged to have made intimidating phone-calls to the complainant, followed her, made false complaints and accusations, and the complainant also alleged the defendant planted drugs in her car.

(The attempt to pervert the course of justice conviction was not in question on appeal. Whilst in custody the defendant had made a number of phone calls to his brother and a friend (“Arunta calls”) asking them to contact a number of people and request those people provide false statements/statutory declarations admitting responsibility for the Crime Stoppers and PoliceLink submissions in order to assist him get bail and to support his acquittal [5].)

The admissibility of Exhibits 5 and 42 were central to the appeal. Exhibit 5 was a screenshot of the daughter’s computer screen showing that the respondent’s iPhone was synched with her Gmail account. Exhibit 42 was a series of printouts from the search history on the daughter’s Gmail account, including ‘how to pay to find someone,’ ‘what will happen if I take my children against a court order?’ and ‘mobile phone locater.’

Decision: The application to adduce further evidence refused; appeal dismissed.

Morrison JA (Mullins P and Flanagan JA agreeing), held that while neither of exhibits 5 and 42 could establish that it was the appellant who synchronised the phone or conducted the searches, this did not make them inadmissible [43]. The exhibits were at least admissible as visual records of what the complainant said she saw on the screen (R v Sitek [1988] 2 Qd R 284) [44]. Additionally, Exhibit 5 was admissible for the purposes of showing that one device was synchronised with another [45].

The trial judge’s use of Exhibit 42 was restricted to the searches where the only reasonable inference was that the appellant had conducted them [62] and that even had it been wrongly admitted there was no basis for finding a miscarriage of justice as it only affected one act of stalking [63]. While the appellant submitted that the complainant had fabricated the screenshot, this was not put to the complainant during cross-examination and in the circumstances there was a strong inference to be drawn from the nature of the searches that they were conducted by the appellant [116].

Consideration was also given to the rebuttable presumption of the accuracy of ‘notorious’ technical instruments, amounting to judicial notice of the fact that a device that is generally used and known to be trustworthy is prima facie accurate (Bevan v the State of Western Australia [2010] WASCA 101) [30]. Mobile phones and laptops were said to fall into this category and there was no evidence suggesting the complainant’s computer or her daughter’s iPad were other than accurate and trustworthy. The exhibits were therefore admissible as circumstantial evidence going to the question of whether the appellant had synchronised the phone and Gmail, and whether the appellant had conducted the searches [48].

The submission that no ruling on Exhibit 5 was made was said to be a misstatement as the trial judge had proceeded on the basis that the exhibit was to be admitted as record of what the complainant had seen on the computer and noted a reservation that the defence might wish to argue what it proved [53]. The appellant was also found to be bound by the defence counsel’s agreement that the admissibility of Exhibit 42 be deferred to the end of trial.

The appellant’s attempts to adduce further evidence were refused as they could have sought to adduce the evidence at trial and the evidence amounted to no more than a general attack on the complainant’s credit and therefore would not have affected the outcome.

R v Robbins [2023] QCA 18 (17 February 2023) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Dated allegations of historical violence’ – ‘History of violence to third party’ – ‘Murder’ – ‘Partial defence of killing for preservation in an abusive domestic relationship’ – ‘S304b criminal code (qld)’ – ‘Siblings’ – ‘Verbal abuse’

Proceedings: Appeal against murder conviction.

Grounds: The trial judge erred in not directing the jury in relation to the partial defence of killing for preservation in an abusive domestic relationship (s304B Criminal Code (Qld)).

Facts: The male appellant and homicide victim were brothers. The victim, his partner and the appellant’s daughter had come to stay with the appellant and his fiancée prior to the appellant’s wedding. During the course of dinner at the appellant’s home, an aggressive verbal argument broke out between the appellant and victim. At one point, the victim asked the appellant’s fiancé if she was really marrying the appellant and she responded that she wouldn’t if he continued to behave this way.

The appellant told the victim and his partner to leave and made further abusive comments towards the victim, apparently angered by his comment to his fiancé. They broke into a physical confrontation and both parties threw punches. During the struggle, the appellant grabbed a knife and stabbed the victim seven times. He died of knife wounds the following day.

The appellant gave evidence that the victim had been an abusive family member, making allegations of witnessing 3 separate assaults against his father. He contended that the victim had been verbally abusive towards the appellant, his father and other brother throughout his life.

Reasoning and decision: The partial defence did not arise fairly on the evidence; appeal dismissed.

A history of domestic violence in the relationship was required, necessitating a previous tendency by either party to engage in acts of serious domestic violence repeatedly or habitually against the other ([30]). The appellant’s claims regarding the victim’s past behaviour lacked an evidentiary basis and any available evidence did not clarify the nature of his conduct.

The age of the alleged incidents involving violence towards their father (occurring over 40 years ago) and fact that the conduct was not targeted at the appellant meant they did not support a history of an abusive relationship between the brothers. While it was possible for actual or threatened violence to a third person to be domestic violence against the second person in certain narrow circumstances, these were clearly not made out.

A ‘bare statement’ that verbal abuse had occurred was not enough to find family violence [39]. Repeated, habitual oral statements in certain circumstances could constitute domestic violence but this would require detail and evidence of impact. Additionally, verbal abuse was not found meet the required threshold of ‘serious’ domestic violence.

R v KBB [2022] QCA 273 (23 December 2022) (23 December 2022) – Queensland Court of Appeal

‘Allegations of infidelity’ – ‘Appeal against conviction’ – ‘Evidence’ – ‘Jealous behaviours’ – ‘Non-fatal strangulation’ – ‘Past domestic violence’ – ‘Physical violence’ – ‘Propensity evidence’ – ‘S132b of the evidence act 1977 (qld)’ – ‘Similar fact evidence’

Proceeding: Appeal against conviction for 1x strangulation in domestic setting.

Facts: The male appellant was charged with 1x strangulation in domestic setting, 1x suffocation in a domestic setting and 1x assault occasioning bodily harm while armed against his female partner. He was convicted on the first charge and acquitted on charges 2 and 3.

The complainant gave evidence that the appellant accused the complainant of infidelity, and the complainant slapped the appellant. The appellant he grabbed the complainant by the hair and throat, threw her onto the bed and covered her nose and mouth. When the complainant tried to leave the house, the appellant grabbed her by the throat and hit her on the head with a glass, knocking her unconscious. Medical evidence of bruising around her neck and head was submitted and the complainant gave evidence of four previous instances of physical violence.

Grounds:

1.

The verdict of the jury was unreasonable in that it was inconsistent with the verdicts of acquittal.

2.

There was an error of law in the admission of evidence of prior acts of domestic violence to demonstrate his propensity to commit domestic violence (under s132B of the Evidence Act 1977 (Qld)).

Decision and reasoning: Appeal dismissed.

Ground 1: McMurdo JA held that it was open to the jury to accept the evidence supporting the complainant’s testimony for the first charge while determining that they required independent evidentiary support before being satisfied about her credibility in relation to counts 2 and 3.

Ground 2: McMurdo JA noted that s132B has a wide operation and that ‘[o]nce the evidence is relevant, it is admissible (under s132B) subject only to the discretion to exclude it on the ground of unfairness according to s130 (Qld).’ Propensity evidence was held to constitute a relevant use, there was no requirement to satisfy the Pfennig test (Roach v The Queen [2011] HCA 12 (4 May 2011)) and there was no argument as to unfairness under s 130 or a miscarriage of justice.

R v CCU [2022] QCA 92 (27 May 2022) – Queensland Court of Appeal

‘Absence of remorse’ – ‘Application for leave to appeal against sentence’ – ‘Attempt to pervert the course of justice’ – ‘Coercive control’ – ‘Manifest excess’ – ‘Physical violence and harm’ – ‘Stepchildren’ – ‘Strangulation’ – ‘Uncharged acts’

Charges: 5 x assault occasioning bodily harm; 1 x common assault; 1 x assault occasioning bodily harm, while armed; 7 x common assault (a domestic violence offence); 4 x assault occasioning bodily harm (a domestic violence offence); 1 x torture (a domestic violence offence); 2 x strangulation in a domestic setting; 1 x suffocation in a domestic setting; 1 x attempting to pervert justice (a domestic violence offence).

Case type: Application for leave to appeal sentence.

Facts: On the second day of trial, the applicant was sentenced after pleading guilty to 20 counts of violence perpetrated over eight years towards his then-partner, K, and her son. As a result of a plea bargain, three counts were withdrawn. The learned sentencing judge imposed a head sentence of six years imprisonment, declaring 53 days as pre-sentence custody, and set a parole eligibility date at two years and four months from the date of sentence. The applicant’s offending was described by the learned sentencing judge as “violent, demeaning and an appalling attempt to exercise power over K” ([34]).

Issue: Whether the learned sentencing judge erred in taking into account the applicant’s uncharged acts? Whether the sentence was manifestly excessive?

Held: In sentencing the applicant, the learned sentencing judge considered his late guilty pleas, his absence of remorse and lack of relevant criminal history, his age at the time of offending, the nature of the offending, the significant effect that the conduct had on K, her son and daughter, his background, the fact that the offences were domestic violence offences and the character references. His Honour also had regard to the fact that domestic violence crimes demean society and are to be condemned and denounced ([34]).

The Court of Appeal (Mullins, Morrison and Fraser JJA) refused leave to appeal. The applicant argued that the learned sentencing judge erred in taking into account the applicant’s uncharged acts, because, inter alia, the Crown’s statement of facts included uncharged acts that were serious and should not have been included. The first ground of appeal was rejected on the basis that:

•

The statement of facts tendered on the sentencing hearing was an agreed statement.

•

Reference to the transcript and sentencing remarks revealed that His Honour only sentenced the applicant for the offences charged.

The second ground of appeal was rejected on the basis that:

•

The offending was “protracted, violent, demeaning and controlling”. It extended beyond the complainant and some of the offending was committed in view of her children. Importantly, “it involved an ultimate degradation, the threat of elimination of life itself”, and was committed with a lack of insight and remorse ([58]).

•

The conduct can be considered worse, given that it was broken by periods of time, because the threat was “always there” ([59]).

•

The applicant attempted to pervert the course of justice to protect himself from exposure to criminal charges ([61]).

R v GBI [2022] QCA 28 (7 March 2022) – Queensland Court of Appeal

‘Accusations of infidelity’ – ‘Application for leave to appeal against sentence’ – ‘Jealousy’ – ‘Physical violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Torture’ – ‘Weapon’

Charges: Assault occasioning bodily harm x 1 (count 1), torture x 1 (count 2).

Proceedings: Application for leave to appeal against sentence.

Issues: Whether the sentence was manifestly excessive.

Facts: The male applicant and female victim were in an intimate relationship. The charges arose out of two separate assaults. During the first, the applicant punched the victim in the face. During the second, the applicant subjected the victim to several violent assaults over a 48-hour period. The assaults included kicking and punching in the face and stomach, stabbing with scissors, verbal abuse that included threats against the victim’s life, and repeated strangulation. The victim sustained serious physical and psychological injuries. The assaults accompanied accusations of infidelity by the applicant, who expressed feelings of jealousy on both occasions. The applicant pleaded guilty to the charges and was sentenced to 18 months’ imprisonment on count 1 and six and a half years imprisonment on count 2. The applicant sought leave to appeal on the ground that his sentence was manifestly excessive.

Decision and reasoning: The appeal was rejected.

Justice Morrison found that the matters raised by the applicant as demonstrating manifest excess had been considered by the sentencing judge. These matters included the applicant’s ‘remorse’, ‘good custodial behaviour’, ‘father’s poor health’, child support obligations, debts owed to his employer, ‘limited use of weapons’, the fact that the victim’s injuries did not require ongoing treatment, and the reduction in risk by a DVO and because the relationship had ceased. His Honour affirmed the sentencing judge’s conclusion that these matters did not warrant a further reduction in the sentence to be imposed, nor justify a finding that the risk of reoffending was reduced.

R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14 (15 February 2022) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Assault’ – ‘Burning threat’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Victim impact statement’ – ‘Weapon’ – ‘Young people’

Charges: The domestic violence charges were:

1.

Common assault,

2.

unlawful assault occasioning bodily harm

3.

causing grievous bodily harm with intent (malicious act with intent) x 1 and

4.

Causing grievous bodily harm (in the alternative to count 3).

Proceedings: Appeal against sentence by Attorney-General.

Issues: Whether sentence manifestly inadequate.

Facts: The male respondent and female victim were in a two-year relationship that was characterised as ‘troubled’ and involving physical violence [2]-[4]. Both parties were users of methylamphetamine and were aged 17 at the time of the offences. On one occasion, the respondent threw petrol on the victim and threatened to set her on fire. On another occasion, the respondent threw a screwdriver at the victim, which was embedded in her hip [3]-[4]. In May 2016, during verbal argument, the respondent used petrol to set the victim on fire [5]. The respondent fled when confronted by a neighbour [14]. The victim required surgery and was hospitalised for four weeks. She was left with ongoing pain and nerve damage [22]. In January 2021, the respondent pleaded guilty to common assault (count 1) and assault occasioning bodily harm (count 2) and was found guilty in relation to causing grievous bodily harm with intent (count 3). He successfully appealed against conviction regarding count 3 but was later resentenced to nine years and six months’ imprisonment [30]. The Attorney General of Queensland appealed on the basis that that sentence was manifestly inadequate [57].

Decision and reasoning: Appeal dismissed.

Justices Sofronoff, Morrison and Flanagan affirmed the decision and reasoning of the sentencing Judge. Their Honours endorsed the sentencing Judge’s consideration of the appellant’s plea of guilty, expressions of remorse, insight, youth and disadvantaged upbringing [67]-[70]. Their Honours agreed with the sentencing Judge’s characterisation of the offending ‘horrendous and disgraceful offending’ and ‘abominable behaviour’ [39]-[40], with ‘devastating consequences’ for the victim that included ‘significant and life-long physical, mental and emotional difficulties’ [72]. Their Honours continued that the sentencing Judge had correctly stated that ‘the sentence had to be “just having regard to all of the circumstances”, but in particular to punish, express community denunciation, meet general and specific deterrence, provide community protection, but also, in light of the offender’s youth, have regard to his prospects of rehabilitation’ [73]. Their Honours concluded that there was ‘no demonstrated error of principle… the sentence imposed was one derived by a careful balancing of competing requirements in an overall integrated sentencing approach’ [75]. This approach ‘was in accordance with what this Court said in R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58 was one of the available approaches, namely to sentence towards the top of the bounds of appropriate discretion and not reduce the parole eligibility date, rather than sentence towards the bottom and impose a serious violent offence declaration’ [75].

R v EQ [2021] QCA 257 (30 November 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Bomb threat’ – ‘Breach of protection order’ – ‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Following, harassing and monitoring’ – ‘Limited criminal history’ – ‘People affected by trauma’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’ – ‘Technology-facilitated abuse’ – ‘Weapons’

Charges: Breach of protection order x 1, assault of police officer x 1, making a bomb hoax x 1, stalking x 1, common assault x 2.

Proceedings: Application for leave to appeal against sentence and resentence.

Facts: The male defendant and female victim were married for 17 years and had two school aged daughters. The family immigrated to Australia from Egypt in 2011. After the couple separated, a domestic violence order was served on the appellant that prevented him from contacting the victim. In February 2019, the appellant repeatedly texted the victim before confronting her and their daughters at an airport. The appellant argued with the victim, before threatening her and airport staff with a knife, fake bomb, and electric shock device [12]-[17]. The appellant later admitted to police that he had been tracking the victim’s movements [19]. The appellant pleaded guilty to the charges and received a sentence of 6 years' imprisonment, with a non-parole period of 2 years and 6 months.

Grounds:

1.

The sentencing Judge erred in law by wrongly limiting the use to be made of evidence of the applicant’s mental health;

2.

The sentence was manifestly excessive; and

3.

In sentencing the applicant for count 2, the learned sentencing Judge mistook the offence to which he had pleaded guilty.

Decision and Reasoning: Application for leave to appeal allowed, charge 3 dismissed, resentenced for charge 2.

Due to an administrative error the appellant was sentenced for an offence with which he had not been charged and to which he had not pleaded guilty [52]. Therefore, the proceedings had miscarried, and the appeal was allowed. As ground three was made out, the court allowed the appeal and proceeded to resentence the applicant for count 2 to 5 years imprisonment with and non-parole period of 2 years 6 months. Justices Sofronoff, Davis and Williams noted that the offending was serious, with significant impact on the commercial operations of the airport, the distress experienced by witnesses, and ongoing psychological suffering of the victim and her daughters [57]. Their Honours noted that there were mitigating circumstances, such as the appellant’s limited prior convictions, cooperation with police, early guilty plea, expression of remorse and low risk of reoffending [58]. Their Honours summarised the appellant’s psychological report, which included details of the applicant’s diminishing symptoms of anxiety and depression, and noted the relevance of mental impairment under s 16A(2)(n) of the Crimes Act 1914 (Cth) [59]-[61]. Their Honours found that there were no comparative sentences [64]. Their Honours considered the maximum sentence for the offence, the sentencing considerations in s 16A of the Crimes (Aviation) Act 1991.

R v Hartas [2021] QCA 178 (27 August 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Arson’ – ‘Jealous behaviours’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘People with mental illness’

Charges: Arson x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The 27-year-old male applicant and female victim were in a 6-week relationship. Shortly after the relationship ended, the intoxicated applicant used a petrol bomb to set fire to cars owned by the victim and her partner. The cars were parked directly in front of the victim’s house, where the victim, her partner, and her 6-year-old daughter were sleeping. In February 2021, the applicant was found guilty of one count of arson, constituting a domestic violence offence, and sentenced to three years’ imprisonment with a non-parole period of 12 months [1]-[8]. The applicant’s psychological report detailed ‘a complex medical history’ and ‘significant psychological problems’, which included chronic pain due to a spinal condition, alcohol misuse and a ‘longstanding mood disorder’ [25].

Grounds:

1.

The sentencing Judge failed to give sufficient weight to the applicant’s personal circumstances, specifically those evidenced by his psychological report

2.

The sentence was manifestly excessive [9].

Decision and Reasoning: Application for leave to appeal dismissed.

Fraser, Morrison and Applegarth JJ held the sentence imposed was not manifestly excessive. The sentencing Judge had given appropriate weight to the applicant’s personal circumstances and mitigated the sentence accordingly [42]. The contents of the psychological report had not shown that the applicant’s mental state at the time of the offence or at the time of sentence warranted substantial weight according to R v Verdins [2007] VSCA 102 (23 May 2007).The applicant’s mental state did not reduce his moral culpability, nor make imprisonment more burdensome such that it ‘became an inappropriate vehicle for’ general deterrence and specific deterrence [40], and his physical condition did not make imprisonment ‘unduly onerous’ [41]. The offence was serious, as indicated by its maximum penalty of life imprisonment with the aggravating factor that it was a domestic violence offence [50]. The victim impact statement indicated serious psychological harm caused to the victim and her daughter [51]. Their Honours accepted the sentencing Judge’s characterisation as ‘an extremely serious act of domestic violence’ due to ‘its grave potential’ impact on ‘life and property’, and the psychological harm that it has caused the victim and her six-year-old daughter [51].

R v RBE [2021] QCA 146 (20 July 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Arson’ – ‘Arson threats’ – ‘Error of fact’ – ‘Inference as to motive’ – ‘Motive’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Section 132c evidence act 1977’ – ‘Sentence’ – ‘Separation’ – ‘Suicide threats’

Charges: Arson of a dwelling x 1 (domestic violence offence).

Proceedings: Application for leave to appeal against sentence.

Facts: As the complainant woman and applicant man were separating the applicant threatened to burn down the former matrimonial home. A protection order was granted protecting the complainant. The applicant has a history of major depression and complex post-traumatic stress disorder. On the date of the offence the applicant sent text messages to his son saying “goodbye” and that the house was alight. He also attempted to call the complainant and sent messages to a friend who went to the house, observed smoke, spoke to the appellant who was inside and called emergency services, then unsuccessfully attempted entry. The appellant’s evidence was that his intention was to commit suicide, but he fled the burning home having changed his mind after an unsuccessful attempted suicide. The sentencing judge expressed the view that the appellant’s expressed motives of suicide were not credible, despite accepting evidence of ligature marks on his neck supporting the appellant’s evidence he had attempted to hang himself during the incident. The judge found the appellant was seeking attention and acted vindictively to hurt his wife. The prosecution made no positive submission on motive and had submitted that all three motivations were open on the facts, advancing suicide or attention-seeking but not vindictiveness.

Decision and Reasoning: Leave to appeal, appeal allowed, sentence varied by:

•

Substituting three (3) years imprisonment; and

•

Suspending the sentence forthwith for an operational period of three (3) years.

Burns J (Morrison and McMurdo JJA concurring):

[26] ….it was not for the sentencing judge to decide what inferences arose from the agreed facts and, having done so, her Honour erred (and in a critical way) by determining a fact that was not in issue between the parties. Indeed, the procedure for resolving disputed facts provided in s 132C of the Evidence Act was not even engaged, the prosecutor having made no positive allegation about motive.

R v FBA [2021] QCA 142 (16 July 2021) – Queensland Court of Appeal

‘Adequacy of jury directions’ – ‘Admissibility of evidence’ – ‘Allegations of infidelity’ – ‘Attempt to withdraw allegations’ – ‘Choking’ – ‘Evidence’ – ‘History of domestic and family violence’ – ‘Jury directions’ – ‘People affected by substance misuse’ – ‘Relationship evidence’ – ‘Robinson direction’ – ‘S132b(2) evidence act 1977 (qld)’ – ‘Strangulation’ – ‘Threats to kill’

Charges: Non-fatal Strangulation x 4.

Proceedings: Appeal against conviction.

Facts: The appellant and complainant were in a relationship but maintained separate residences. The complainant had been staying with the complainant for 3 days when the alleged incidents occurred. The appellant made allegations of infidelity against the complainant, and they argued about that and money, the appellant refusing to drive the complainant home despite her giving him money for fuel. The complainant gave evidence that the appellant accused the complainant of stealing from him and that in four discrete incidents of physical altercations he applied pressure to her throat so that she could not breathe. She also alleged he made multiple threats to kill her and members of her extended family, locked her in the house and that she escaped with assistance from others. She went to hospital and photographs were taken of marks on her neck which were not there prior to the incident. The complainant also gave evidence of two prior incidents of violence by the appellant towards her. The complainant admitted using methylamphetamine at the time of the incidents and to attempting to withdraw her complaints, stating the reasons given for the withdrawal were false.

Grounds:

1.

The learned trial judge erred, causing the trial to miscarry, in:

(a) failing to clearly direct the jury as to the identification, purpose, and use of relationship evidence;

(b) admitting the evidence of the complainant’s daughter that she had ‘seen bruises on mum’ (the year prior to the instant allegations) as relationship evidence.

2.

The complainant’s evidence required a ‘Robinson direction’ and the failure to direct in those terms caused a miscarriage of justice.

3.

The complainant’s evidence in chief was inaudible in parts, which in the circumstances of the trial, caused the trial to miscarry.

4.

When regard is had to all the evidence, the jury verdicts are unreasonable, unsafe and unsatisfactory.

Decision and Reasoning: Appeal dismissed.

Ground 1(a) – rejected - further direction on relationship evidence would not have assisted the defence case (Sofronoff P [11], McMurdo JA agreeing, Boddice JA dissenting – the second paragraph of directions on the use of relationship evidence gave rise to a real risk of impermissible propensity reasoning).

Ground 1(b) – dismissed –the evidence was plainly admissible and relevant (Sofronoff P [13], MdMurdo JA agreeing Boddice JA dissenting – the evidence was inconsistent with the complainant’s evidence the appellant was only violent towards her in 2019).

Ground 2 – dismissed – it was clear why a ‘Robinson direction’ (pursuant to Criminal Code, s632(3)) wasn’t given, firstly the defence did not request one, and secondly “There was nothing in the present case which would have suggested to the learned judge that the jury required specific assistance in order to assess the complainant’s credibility and/or to suggest that, in the absence of such assistance, there was a risk that the jury might be unable to appreciate some exculpatory factor.” (Sofronoff P [14], McMurdo JA agreeing).

Ground 3 – dismissed – in absence of complaint at the trial it is impossible to conclude based on the transcript that evidence was inaudible (Sofronoff P [16], McMurdo JA agreeing).

Ground 4 – dismissed – while there was good reason for the jury to carefully scrutinise the complainant’s evidence (her drug use and its affects on her mental health, inconsistencies in her evidence and her attempts to withdraw the charges) it does not follow that it was not open to the jury to find her evidence as to the allegations of choking to be credible and reliable, especially as it was supported by medical evidence of injuries consistent with the allegations and her timely complaint to police. (Boddice JA [89]-[91], Sofronoff P and McMurdo JA agreeing).

R v Blockey [2021] QCA 77 (21 April 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Manifest excess’ – ‘Manslaughter’ – ‘Parole eligibility’ – ‘Victims as (alleged) perpetrators’ – ‘Weapon’

Charges: Manslaughter (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male deceased had committed acts of domestic violence against the female applicant during their relationship. He was the subject of a domestic violence order. The applicant stabbed the deceased with a hunting knife. She pleaded guilty and was sentenced to 9 years imprisonment, with parole eligibility after 3 years and 9 months imprisonment.

Grounds of appeal: Whether refusal to give parole eligibility date at one third of the sentence rendered the sentence manifestly excessive.

Held: Leave to appeal against sentence granted. Appeal against sentence allowed. Parole eligibility date was set on 22 April 2021, rather than 22 January 2022.

The Court noted the sentencing judge’s remarks, including the relevance of the applicant’s history as a repeated victim of domestic violence in sentencing:

The sentencing Judge found that: “The fact that you were such a victim of domestic violence as well as a perpetrator of domestic violence is, to my mind, sufficient to enable me to reach the conclusion that it is not reasonable in the present circumstances to treat the fact that your offending was a domestic violence offence as an aggravating feature.

Nevertheless, the sentencing judge’s conclusion that “the applicant’s cooperation was tempered by her failure to provide any comprehensive, reliable detail concerning the stabbing” was inconsistent with the conclusion that there was insufficient evidence to find that “the applicant ‘engaged in consciously-informed obfuscation or denial’ designed to minimise culpability.” The applicant was under no obligation to provide a comprehensive, detailed account of the sequence of events concerning the stabbing. She accepted unlawfully causing the victim’s death by stabbing him when she pleaded guilty to his manslaughter.

In these circumstances, finding that the applicant’s cooperation in entering a timely plea of guilty was to be tempered by her failure to provide such an account of the stabbing was a misapplication of sentencing principles, particularly where there was an acceptance that the applicant was sincerely remorseful for her conduct. It was therefore necessary to re-sentence the applicant. Parole eligibility was fixed after having served 3 years of the sentence.

MS v Commissioner of Police [2021] QCA 31 (2 March 2021) – Queensland Court of Appeal

‘Application for leave to appeal against conviction’ – ‘Breach protection order’ – ‘Parenting orders’ – ‘People with mental illness’ – ‘Protection order’

Charges: Contravention of a domestic violence order (aggravated offence) x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: A protection order prevented the male applicant from contacting, attempting to contact, or asking someone else to contact his female former partner except under strict circumstances. A Family Court order was also in place granting the mother sole parental responsibility for their child and restricting contact between the parties. The applicant breached the protection order by sending an email addressed to a number of people including his former partner and solicitor titled, “[The child] need to know about my mental health diagnosis.” The applicant was sentenced in the Magistrates Court to 6 months imprisonment, suspended after 2 years. The applicant’s appeal to the District Court was dismissed.

Grounds of appeal:

1.

The primary judge erred in not allowing the appeal based on the existence of parental responsibility in the applicant’s communications.

2.

The primary judge erred in not applying s 24 of the Criminal Code (Qld).

Held: Application for leave to appeal was refused. There was no inconsistency: condition 6 of the protection order did not preclude the application of the exception in paragraph 18 of the Family Court order. The email was appropriately characterised as not for the “sole purpose of communication regarding parental responsibility,” and did not fall within the condition/exception in the protection order and Family Court order. On that basis, there was no room for the operation of s 24 of the Code which could not apply to a mistake by the applicant in the interpretation of the Family Court order.

R v Luxford [2020] QCA 272 (4 December 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Damaging property’ – ‘Following, harassing and monitoring’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Protection order’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapon’

Charges: Choking, suffocation or strangulation in a domestic setting x 2; Assault occasioning bodily harm (domestic violence offence) x 8; Threat of actual bodily harm (domestic violence offence) x 1; Common assault (domestic violence offence) x 2; Wilful damage (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant man spent 15 years in the army, with several overseas deployments. He left on medical grounds with a shoulder injury, chronic pain, tinnitus and post-traumatic stress disorder, and was awarded compensation. He had no prior criminal history (except for a failure to secure storage of weapons charge in 2017). He participated in a Men’s Behavioural Change Program, and was accepted into a program to treat PTSD. The applicant pleaded guilty and was sentenced to a period of three years and six months imprisonment for the most serious offences on the indictment (choking, suffocation or strangulation in a domestic setting x 2, Counts 12 and 13), to be served concurrently with the remaining sentences. The date for parole was fixed at 29 September 2021. The expiry date for a protection order granted to the complainant in 2017 was extended to 7 October 2025.

Grounds of appeal: The sentence was manifestly excessive as the applicant was required to serve actual time in custody.

Held: The sentencing judge erred in the imposition of a sentence that required actual custody, and the applicant was re-sentenced.

The court held that the applicant’s offending could not be separated from his PTSD and also his PTSD caused custody to be a greater burden on him. While the sentencing judge applied the principles in R v Rix [2014] QCA 278 where the reduction in moral culpability due to an offender’s PTSD was taken into account, the sentencing judge failed to recognise in the sentence that a custodial sentence would have a hasher effect on him than a person not suffering PTSD. The sentence did not give sufficient weight to both factors relevant in the applicant’s case due to his PTSD (at [38]).

To reflect the gravity of the offending, the most serious offence was choking causing the complainant to lose consciousness (see R v MCW [2018] QCA 241) (Count 13), a higher head sentence of 4 years imprisonment was imposed to accommodate a sentence structure that provided for the applicant’s immediate release from actual custody. This reflected the totality of the offending, but adjusted in recognition of the effect of the PTSD as a cause of the offending. For the choking that lasted three seconds, a sentence of 2 years and 6 months imprisonment was imposed (Count 12). The effect of the applicant’s PTSD was further accommodated by suspending the sentence on Count 13 after 60 days and releasing him at the same time on parole for other offences (parole for 2 years and 4 months to provide supervision in the community). Supervision on parole was to ensure the applicant continued to access counselling and other treatment for his PTSD (at [39]).

R v Thomas [2020] QCA 236 (30 October 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application to adduce further evidence’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Provocation’ – ‘Strangulation’

Charges: Murder x 1.

Proceedings: Appeal against conviction; application to adduce further evidence.

Facts: The appellant man was found guilty of the murder of his female partner following a trial confined to the issue of intent. On 24 October 2015, the victim was found with injuries to her neck consistent with strangulation and rib fractures consistent with resuscitation or blunt trauma. Evidence at trial included: evidence from several of the victim’s former partners and her aunt; records of text messages/phone calls between the appellant and the victim commencing on 9 May 2015 (showing a volatile relationship); the appellant arranging to purchase a flight ticket overseas after the victim’s death; the appellant’s confession he killed the victim to a friend (that he had been humiliated and had “grabbed her and…squeezed”, accompanied demonstrating use of two hands); and evidence from a forensic pathologist of the victim’s injuries.

Grounds of appeal:

1.

The trial judge erred in law by admitting exhibit 41, which contained six inadmissible photographs, causing a miscarriage of justice.

2.

The trial judge failed to direct the jury as to how exhibit 41 could be used, thus creating the danger of impermissible reasoning by the jury.

3.

The trial judge failed to direct in relation to motive.

4.

The verdict was unreasonable and cannot be supported by the evidence.

5.

The trial judge failed to leave the partial defence of provocation.

6.

The trial judge’s failure to direct the jury in relation to opinion evidence may have caused a miscarriage of justice.

7.

A collation of faults caused the trial to miscarry.

Held: The appeal was dismissed.

Grounds 1 and 2: Exhibit 41 (photographs of bruising suffered by the victim in November 2014, identified by a former partner of the victim) was tendered by the prosecutor at the request of the appellant’s trial counsel for a forensic purpose. The fact that the appellant’s counsel abandoned the forensic purpose he had in mind for exhibit 41 did not mean that the evidence became prejudicial ([32]-[38]).

Ground 3: The trial judge did not fail to give a direction concerning motive which was requested by the appellant’s counsel, stating in summing up: “Any positive evidence that the defendant lacked a motive to cause [Jane’s] death or to do her grievous bodily harm is also relevant. It would be another circumstance to be taken into account in his favour in a case based on circumstantial evidence” ([39]-[42]).

Ground 5: The trial judge did not err in failing to leave open to the jury the partial defence of provocation (where the act was caused “in the heat of passion caused by sudden provocation…before there is time for the person’s passion to cool”). First, the appellant’s trial counsel expressly disavowed reliance on provocation, making it clear that the only live issue was intention. Second, there was no evidence of acts of provocation which might have led to loss of self-control. The evidence did not show any particular link between the alleged humiliation and strangulation. Third, there was no evidence to suggest provocation would have caused a loss of control in a reasonable person ([43]-[48]).

Ground 6: There was no merit in the appellant’s contention that evidence from the victim’s aunt that “whether she was an alcoholic or not…she didn’t deserve…what she got” may have introduced factors of prejudice or emotion to the jury, or influenced their decision, and the trial judge should have directed the jury to disregard those claims. The jury would not have been concerned that the victim’s aunt made a personal comment, and no direction was sought by the appellant’s counsel ([49]-[53]).

Ground 7: None of the failures of defence counsel to object to the prosecution’s case demonstrated that defence counsel’s conduct denied the appellant a fair trial ([54]-[62]).

Ground 4: The principles relevant to the role of the appellate court, and pre-eminence of the jury were recently re-stated in Pell v The Queen and R v Baden-Clay. There was ample evidence (from the pathologist and the appellant’s friend) to support the jury’s conclusion that when the appellant squeezed the victim’s neck, he did so with the intent to kill or cause grievous bodily harm. He applied pressure to her neck, and with two hands. In particular, “[t]he level of force necessary, the length of time it was applied for, the fact that the fingers moved around and the fractures to the neck all provide a foundation to infer the requisite intent”. It was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt of murder ([63]-[71]).

The appellant’s application to adduce fresh evidence was refused. The evidence requested to be adduced would have been in the hands of the defence counsel at the time of the trial, or it was irrelevant ([72]-[76]).

R v TAQ [2020] QCA 200 (15 September 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Miscarriage of justice’ – ‘Sexual abuse’ – ‘Tendency/relationship evidence’

Charges: Common assault x 9; Assault occasioning bodily harm x 1; Assault occasioning bodily harm while armed x 4; Rape x 1 (Charge 15).

Proceedings: Appeal against rape conviction (Charge 15); Application for leave to appeal against sentence.

Facts: The female complainant was the male appellant’s former de facto partner. From 2006 the appellant became increasingly violent and controlling and committed numerous charged and uncharged assaults between 2006 and 2011. In October 2011, the appellant said to the complainant, “If you love me, darling, you’ll do it [anal]. If you don’t do it, I am going to turn you over and rape you”. The appellant then anally raped the complainant, after which he demanded oral sex and then hit her in the head. In December 2012, the complainant left the appellant but did not report the rape and assault to police until December 2016. In 2012, the appellant said to Mr P (a witness) that “he’d raped [the complainant]” and “if he didn’t get what he wanted, he’d take it”.

Grounds: (1) Mr P’s evidence of the conversation with the appellant should not have been admitted.

Decision and reasoning: Appeal against conviction dismissed. Appeal against sentence allowed due to a calculation error.

The prosecutor at trial argued that Mr P’s evidence that the appellant had said he’d raped the complainant could amount to an admission. The trial judge expressed doubt as to whether the jury could infer that it was an admission to the specific incident (Charge 15). In the summing up, the trial judge explained to the jury that Mr P’s evidence related more generally to “other incidents in which the [appellant] has through his actions, demonstrated a sexual interest in the complainant even when she is not consenting and was prepared to act on that interest” [28]. The respondent relies on R v Sakail [1993] 1 Qd R 312 as making the evidence of Mr P admissible on the basis that an admission to a rape which is not charged can be used as evidence of the nature of the relationship relevant to the charged rape:

[32] Where the act in issue for [rape] count 15 was the act of anal intercourse without the consent of the complainant, evidence of other sexual acts between the appellant and the complainant as a result of the appellant’s threats or without the consent of the complainant was evidence that could rationally affect the assessment of the probability of the occurrence of the anal rape, as described by the complainant. The direction given by the trial judge focused on the nature of the conduct to which the appellant admitted in his conversation with Mr P which was a willingness to act on his sexual interest in the complainant in the absence of her consent. The evidence of Mr P was admissible as relationship evidence that revealed a tendency of the appellant to engage in sexual acts with the complainant without her consent.

[33] The appellant does not succeed on the ground of appeal that Mr P’s evidence was inadmissible.

R v SDJ [2020] QCA 157 (24 July 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Child victim’ – ‘Section 93a evidence act statement’ – ‘Stepchild in the family’ – ‘Strangulation’ – ‘Unreasonable verdict’

Charges: Common assault x 1 (DFV offence); Choking in a domestic setting x 1 (DFV offence).

Proceedings: Appeal against conviction.

Facts: The complainant (10 years old) was the male appellant’s stepson. The appellant kicked the complainant and hit him on the side of the face two or three times with an open hand. The appellant then choked the complainant with ‘a neck lock’. The complainant’s mother and a friend of the family witnessed the assault. The appellant gave evidence that he did not assault the complainant.

Ground: Verdict was unreasonable.

Decision and reasoning: Appeal dismissed. There were inconsistencies between the child complainant’s s93A Evidence Act statement (taken in a timely way after the incident) and the cross-examination (conducted 16 months after the incident) as during the latter the ‘complainant had little recollection’ of the events. However, this did not preclude the jury from relying on the s 93A statement, especially considering that the complainant’s statement was supported by evidence given by his mother and the family friend, as well as consistent medical evidence. Therefore, it was not unreasonable for the jury to find the appellant guilty.

R v Young [2020] QCA 140 (26 June 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Inconsistent verdicts’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Reliability’ – ‘Temporary protection order’

Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1; choking in a domestic setting x 1

Case type:Appeal against conviction, application to adduce evidence on appeal

Facts: The appellant man was charged on indictment with one count of assault occasioning bodily harm whilst armed (Count 1), one count of common assault (Count 2) and one count of choking in a domestic setting (Count 3). The Crown entered a nolle prosequi in respect of Count 1. All counts were domestic violence offences against the appellant’s female domestic partner. The complainant’s evidence at trial was that it was a mutually abusive relationship against a background of excessive drinking. A temporary protection order was made against the appellant in favour of the complainant in 2017. In relation to Count 2, it was alleged that the appellant kicked the complainant on the legs, causing her to fall. With respect to Count 3, it was argued that he grabbed the complainant around the throat. A jury found the appellant not guilty of Count 2, but guilty of Count 3. He was sentenced to 2 years’ imprisonment, with the conviction recorded as a domestic violence offence.

Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.

Held: The application for leave to adduce further evidence was refused, and the appeal against conviction was dismissed. The Court found that the jury was undoubtedly fully aware of the inconsistencies in the evidence ([99]). Taking into account all of the appellant’s arguments, there was nothing which led the Court to doubt the appellant’s guilt. It was open to the jury, on the whole of the evidence, to be satisfied of his guilt beyond reasonable doubt. The complainant’s account of the choking after a sustained argument in the kitchen was compelling ([102]). That account of the attack and the pressure she felt was substantiated by the medical evidence, which also indicated that the injuries were consistent with choking ([103]). Further, the evidence of witnesses was substantially consistent with the complainant’s account. Whilst there is "no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it" (Pell v The Queen [2020] HCA 12 (7 April 2020), there was in fact strong corroborative evidence here. Despite some inconsistencies, particularly in relation to the time of the choking, the Court was satisfied that the jury acting rationally would not have entertained a reasonable doubt as to proof of guilt. Given the complainant’s level of distress at the time and her acceptance during the course of her evidence that her memory of some events of that day were unclear, a mistake as to the time the choking event occurred was understandable ([104]-[105]).

R v Castel [2020] QCA 91 (6 May 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Female perpetrator’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Weapon’

Offences: Manslaughter (domestic violence offence)

Proceedings: Application for leave to appeal against sentence

Issue: Whether the sentence was manifestly excessive.

Facts: The woman applicant and her husband and victim had been married since 2010. Throughout this time, they argued occasionally, particularly about the husband arriving home from work after 6pm. On the day of the offending, the husband arrived home after 8pm and an argument developed while the couple were in the kitchen. The applicant threw the husband’s laptop at him, then picked up a 20.5cm long kitchen knife and threw it at him from 2-3m away. It landed in his chest region and either he pulled it out or it fell out. The applicant immediately said she was sorry, used a towel to cover the wound and called 000. Despite medical intervention, the husband died. The applicant was sentenced to nine years’ imprisonment, with no fixed date for parole eligibility. She appealed against her sentence.

Judgment: The majority (Sofronoff P and Mullins JA) held that the head sentence of nine years’ imprisonment was not inappropriate, but that failing to fix an eligibility date for parole was "unreasonable or plainly unjust" and was manifestly excessive [38]. They emphasised that the applicant had no criminal history, showed immediate remorse for her conduct, entered an early plea of guilty and was not at high risk of reoffending, and therefore ordered that her sentence be mitigated by including a date for eligibility for parole that was one-third of the sentence in custody [38].

Mullins JA (with whom Sofranoff P agreed) further provided that "section 9(10A) of the [Penalties and Sentences Act 1992 (Qld)] is a legislatively prescribed aggravating factor that must be taken into account in arriving at the appropriate sentence for the offence of manslaughter that is a domestic violence offence, unless the exception within the provision due to the exceptional circumstances of the case applies" [35]. Section 9(10A) refers to offenders convicted of domestic violence offences. In such cases, the fact that the offence is a domestic violence offence is an aggravating factor that is added to the other aggravating factors and balanced with any mitigating factors [35].

Boddice J (dissenting) dismissed the appeal, holding that the applicant’s offending was "an extraordinary act of violence" and was a "very dangerous action" [42] that occurred in circumstances where the applicant was sober, sane, not provoked and not acting in self-defence [43]. He considered the applicant’s offending to be a very serious example of a domestic violence offence, making the circumstance of aggravation a very relevant factor in sentencing [44]. He contended that the aggravating factors outweighed any mitigating features [45] and that the sentence "fell within a sound exercise of the sentencing discretion" [46].

R v HBZ [2020] QCA 73(17 April 2020) – Queensland Court of Appeal

‘Animal abuse’ – ‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Non-fatal strangulation’ – ‘Step-children’

Facts: The appellant man was convicted of choking the female complainant in a domestic setting (domestic violence offence) (count 1) and common assault (domestic violence offence) (count 2) after trial before a jury in the District Court. He was sentenced to imprisonment for two years and six months on count 1 to be suspended after serving 15 months’ imprisonment for an operational period of three years. He was sentenced to three months’ imprisonment for count 2.

The appellant often stayed at the complainant’s home where she lived with her five children; the appellant was the father of the youngest child. The appellant and his dog were staying at the complainant’s home when the appellant’s dog urinated on the floor and the complainant asked her son to tell the appellant.

The complainant’s evidence in chief was that:

•

The appellant hit the dog on the floor, rubbed it’s face in the urine and told the complainant his abuse of the dog was her fault. She asked him to leave, locked him out and went into a bedroom. He let himself back in with a spare key.

Re Count 1:

•

She dialled 000 and then: "[The appellant] moved the camp beds and he grabbed me, and he grabbed the phone, and then he put his hands around my neck – his right hand, and then he pushed on my shoulder at the same time to knock me onto the bed, and then he pinned me to the bed with his hand to stop me from speaking. So when I first started speaking, I could ask for help, but then the words wouldn’t come out, and I struggled to breathe."

•

The appellant grabbed the phone and smashed it. The appellant’s right hand was almost in a "V" around her throat and "instead of squeezing, he just was on top of me and used his body weight as the force to stop me from speaking". She couldn’t speak, felt pains in her chest and had black spots in her vision. She asked him to stop 3 or 4 times before she ran out of breath. She could not breathe for probably 70 seconds. She asked him to call an ambulance because she couldn’t breathe. [5]

Re Count 2:

•

"He grabbed my shoulders. When I was having difficulty breathing before he left, he grabbed my shoulders and shaked me and…. he shook me so hard that I was just flicking back and forth, and I could feel my neck – like, the back of my head hitting the back of my shoulders…."

•

He gave her "a really, really tight hug" and grabbed her by the shoulders. She told him to leave and he left.

•

She made a video diary of the incident and her injuries.

In cross-examination:

•

"The complainant denied, when it was put to her, that after the incident she was having trouble breathing due to a panic attack."

•

When it was put to the complainant that the appellant did not have his hand on her neck or throat "that much" she disagreed; "He pushed the air out of me and I thought I was going to die." [10]

•

She recorded in her video diary: "I’m finding it hard to breathe. I think it’s just a panic attack. Because he didn’t have his hand around my neck and throat that much." [11]

•

She did not call the ambulance immediately: "I was still having trouble breathing, which is why, on the video, I said I felt like I was having a panic attack during the video. Because I couldn’t understand, after his hand had been removed, why I was still having difficulty breathing.""[11]

•

She denied moving the camp beds into the bedroom after he left. [12]

Medical records included a note: "the patient states her partner pushed her onto the bed and strangled her with both hand pushing downwards then made multiple blows with fists to the shoulder and head. Patient unsure if knocked out."

In the complainant’s video record of interview he said there was a struggle for the phone. "He then sat down, gave her a big hug and got her to calm down. He denied choking her or trying to do that. He thought his thumb may have made contact with her during the struggle for the phone."[20]

Against the objection of defence counsel [21] the jury were given both a handout and direction in the terms: "‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’."[20] Defence counsel argued there was only one definition given to the jury whereas dictionaries gave various definitions. [23]

Grounds: The grounds of appeal against conviction were:

1.

the learned trial judge erred in the direction given to the jury on the definition of choking;

2.

the appellant was deprived of a fair trial, because of the manner in which the allegations of fact in count 1 were particularised;

3.

the verdicts on counts 1 and 2 were unreasonable and cannot be supported, having regarded to the evidence.

The sole ground of the application for leave to appeal against sentence was that the sentences were manifestly excessive.

Held:

1. Appeal against conviction dismissed.

Ground 1: Mullins JA considered the construction of s 315A Criminal Code (Qld) in light of s14A Acts Interpretation Act 1954 (Qld) and the purpose given for the introduction of the offence in the relevant Bill Explanatory Notes referring to recommendation 120 of the Special Taskforce on Domestic and Family Violence (Queensland) in its Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.

"In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking."

The direction given by the trial judge on the meaning of "choked" was correct. It was a direction on the law. The meaning of the word "choked" for the purpose of count 1 was a matter of legal interpretation and it was appropriate that the judge directed the jury to apply the meaning "to hinder or stop the breathing of a person"." [58]-[59]

Ground 2: The appellant’s argument was that as the particulars specified alternative conduct for each count they failed to sufficiently inform him of the case against him (Count 1: "stopped and/or hindered [the complainant’s] breathing and, in doing so, choked her"; Count 2: "shook and/or applied force to [the complainant’s] shoulders and, in doing so, he unlawfully assaulted her" [60]). The complaint re Count 1 was resolved by the conclusion as to meaning of "choke" re ground 1; it was sufficient that the jury be satisfied the complainant putting his hand around her neck hindered her breathing [62]. There was no substance to the complaint re Count 2 [63].

Ground 3: The jury were given extensive and appropriate directions that they could not convict unless satisfied beyond reasonable doubt that the complainant was "a reliable and truthful witness"… "that she was choked by the [appellant] by him placing his right hand around her throat and squeezed in the way that she described" and similar directions were given re Count 2 [65]. The jury’s verdicts were not unreasonable [66].

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

The trial judge considered the sentencing decisions in R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283. Mullins JA said: "Objectively, the appellant’s offending was less serious than the offending in MCW and MDB. The appellant also was younger than those offenders and without the relevant prior criminal history. It was therefore surprising that the prosecutor at the trial submitted to the trial judge that a sentence in the order of three years and six months or four years’ imprisonment was appropriate. It does not assist a sentencing judge, when the prosecutor’s submissions propose a sentence that is outside the proper exercise of the sentencing discretion for the offending committed by the particular offender." [71]

4. Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.

5. The declaration as to pre-sentence custody and other orders made at first instance are confirmed.

R v Ridgeway [2020] QCA 38 (10 March 2020) – Queensland Court of Appeal

‘Alternative hypothesis’ – ‘Attempted murder’ – ‘Children’ – ‘Evidence’ – ‘History of abuse’ – ‘Jury directions’ – ‘Miscarriage of justice’ – ‘Misdirection or non-direction’ – ‘Motive’ – ‘Post-offence conduct as evidence of consciousness of guilt’ – ‘Separation’ – ‘Verdict unreasonable or insupportable having regard to evidence’

Charges: Attempted murder x 1 (aggravating circumstance of being a domestic violence offence).

Case type: Appeal against conviction

Facts: The appellant man was convicted of one count of attempted murder (domestic violence offence) and was sentenced to 10 years’ imprisonment with a non-parole period of 8 years. The appellant, an electronics engineer, was alleged to have attempted to murder his wife (the victim) by connecting a garden hose to a nitrogen gas cylinder which was then attached to the inside of the caravan where the victim slept. There was evidence that the appellant had motive to kill the victim because she was taking preliminary steps to divorce him and had demanded that he leave the matrimonial home. She had also left a will making him her beneficiary. In his police interview, the appellant denied knowledge of the contraption. At trial, however, he admitted that he constructed the contraption as a drainage system ([74]). Further, the appellant acknowledged his relationship difficulties with the victim and told police that they had an argument concerning their daughter. According to the victim, that argument led to the appellant pushing her against a wall while threatening to punch her. As a result, she called the Domestic Violence Hotline.

In summary, the appellant’s case was that the Crown had failed to exclude the hypothesis that the victim had constructed the apparatus, because there was evidence that:

•

She had a motive to implicate her husband falsely in a murder attempt.

•

The appellant must have appreciated that the apparatus could not have killed his wife.

•

The contraption was ineffective to kill.

Issue: The appellant appealed against conviction. He submitted that the guilty verdict could not be supported by the evidence or was unreasonable ([52]) (Ground 1). He also claimed that the trial judge failed to direct the jury that an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill his wife ([97]) (Ground 2), and complained about the trial judge directions as to the use of post-offence conduct as proof of his intention ([107]) (Ground 3). His appeal also included the claim that there was a failure to distinguish attempted murder from other offending based on the same physical acts, but with different mental elements, which might have explained the post-offence conduct ([114]) (Ground 4).

Held: All four grounds of appeal were dismissed. Sofronoff P (with Philippides JA and Flanagan J agreeing) noted that it was open to the jury to reject the appellant’s explanation for constructing the contraption. His credit was impaired by his failure to offer this explanation when first interviewed by police. Further, the verisimilitude of his explanation was reduced by the uselessness of the contraption as a drainage system, and the inconsistencies in his reasons for erecting the drainage system. The jury was therefore entitled to accept the victim’s evidence and be satisfied beyond reasonable doubt that the appellant constructed the apparatus to deliver gas into the caravan in which his wife was sleeping ([81]-[82]). The evidence that the victim had informed the appellant that she wanted a divorce, together with the evidence of lies to police, supported a conclusion that the appellant believed that he had built a system that would be effective to kill ([88]). His Honour therefore held that the jury could be satisfied beyond reasonable doubt of the appellant’s guilt.

As to the second ground of appeal, the appellant was unable to establish a miscarriage of justice by merely asserting that the trial judge miscarried through a lack of proper directions about proof of the appellant’s intention ([106]). A redirection was not sought ([101]). Whilst the trial judge did not identify the series of evidentiary steps that the jury could take to find guilty intent, doing so would have assisted the prosecution, not the defence ([106]).

Further, the appellant submitted that there was an alternative hypothesis that he had set up the apparatus to harass his wife, and therefore, his post-offence conduct was indicative of his sense of guilt for trying to harass her ([109]). This submission failed because harassment by the use of nitrogen, as an alternative hypothesis, did not arise as an issue in the case ([110]).

Ground 4 was also rejected. Citing R v Baden-Clay, the Court stated that "it is not necessary for a jury to consider a hypothesis which was not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence". Any intention on the appellant’s part to do anything other than kill his wife or drain water did not arise on the evidence and did not have to be considered ([120]).

R v Toweel [2019] QCA 303 (20 December 2019) – Queensland Court of Appeal

‘Children’ – ‘Evidence issues’ – ‘Jury directions’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Propensity evidence’ – ‘Strangulation’

Charges: 1 x unlawful strangulation; 1 x unlawful assault

Case type: Appeal against conviction

Facts: The appellant was charged with 2 offences, committed on the same day against a woman (the complainant) with whom he was in a domestic relationship and had a child. Count 1 involved the appellant strangling the complainant ‘really tight’ for a period of about 15 seconds, stopping only when their son fell from a couch. Count 2 occurred shortly afterwards. The appellant grabbed the complainant’s hair and repeatedly said ‘bitch’ while she held their son. The appellant then destroyed her phone ([4]-[5]). The complainant also gave evidence of 5 previous incidents of domestic violence ([11]-[17]); however, the appellant did not give or call evidence ([18]). The jury convicted the appellant on both counts.

Issue: The issue for the Court was whether the appeal against the convictions should be allowed. The appellant appealed against each conviction on the ground that the trial judge wrongly admitted evidence of prior acts of domestic violence by him against the complainant. He also appealed against the conviction on the strangulation charge on the ground that the verdict was unreasonable.

Held: The Court dismissed the appeal. The evidence summarised at [4]-[18] was admitted under s 132B(2) of the Evidence Act 1977 (Qld). The question for the Court was whether the admission of the evidence resulted in a miscarriage of justice ([34]). The Court held that the evidence of prior events was relevant to establish that the alleged offending did not occur randomly and to demonstrate the nature of the relationship between the appellant and complainant. To minimise any risk of the jury engaging in propensity reasoning, the trial judge warned them that they were not to use the evidence as demonstrating the appellant’s propensity to commit similar offences ([37]-[38]). Overall, the jury directions avoided the misuse of the evidence, and no miscarriage of justice was caused by its admission ([40]).

Vital v DPP (Qld) [2019] QCA 290 (6 December 2019) – Queensland Court of Appeal

‘Appeal’ – ‘Assault’ – ‘Bail’ – ‘Physical harm and violence’ – ‘Separation’ – ‘Weapon’

Charges: Murder x 1; assault occasioning bodily harm while armed and in company x 1; burglary at night x 1; common assault x 1; and robbery with personal violence as a domestic violence offence x 1.

Proceedings: Appeal against refusal to grant bail.

Facts: The accused was a 19-year-old male with no prior criminal history. He was in an abusive relationship with the daughter of a man he was charged with murdering at the time of offending.

On the day of the offending, the daughter told the accused their relationship was over. That night, the appellant was in the daughter’s bedroom when she came home but was asked to leave by her flatmate. After leaving the apartment he began to make a nuisance of himself, causing the flatmate to call the daughter’s father (the victim) who soon arrived with another man. The appellant fled by car with his companion and was followed by the victim and the other man. The appellant eventually stopped the car and his companion went onto the road and took out a pistol which he pointed at the victim’s car. The victim’s companion approached the appellant, who was still in the car, and began to punch the window.

The appellant’s companion hit the victim with his pistol and knocked him unconscious. This blow ultimately killed the victim. The appellant and his companion then took off, briefly returning to the daughter’s home and punching her two or three times in the face before fleeing again.

The appellant submitted that the judge who refused his bail application ‘must not have given consideration to the appellant’s youth, his lack of criminal history and, as the appellant asserts, the weakness of the Crown case against him, the weight that these matters deserved’. He submits that it should be inferred that Justice Davis made an error, and in oral argument, he has also submitted, that Justice Davis must have overlooked the extraordinary delay of about 18 months until there can be a trial in this matter. (per Soffronoff P at [7-8]).

Issue: Whether to grant leave to appeal.

Decision and reasoning: Sofronoff P stated that ‘in an appeal against a discretionary decision, it is not a valid ground of appeal to contend that the judge did not give sufficient weight to a relevant factor or gave too much weight to a factor. Weight is a matter for the decision-maker alone’ [7]. His Honour thus dismissed the appellant’s related claims.

The submission that the judge must have overlooked the delay was not accepted as a delay of that order was to be expected [12]. Furthermore, regarding the appellant’s claim of error, Sofronoff P concluded that ‘[i]n an application for bail, the appellant’s actions after he returned to Jane’s house could, on their own, justify a refusal of bail. When they are taken into account in a case in which the applicant is also awaiting trial for murder, refusal of bail can hardly be regarded as so unreasonable that an error of some kind in the judge’s reasoning has to be inferred. Yet that is what the appellant must show in order to persuade this Curt to disturb the decision of Justice Davis. In my view, he has failed to do so, and the appeal should be dismissed’ [13].

R v O'Malley [2019] QCA 130 (28 June 2019) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Domestic violence offence’ – ‘Dysfunctional upbringing’ – ‘People with disability and impairment’ – ‘Physical violence and harm’

Charges: 1 x manslaughter

Case type: Appeal against sentence

Facts: The applicant pleaded guilty to manslaughter by unlawfully killing the deceased, with whom he was in a domestic relationship for some 18 months. The applicant was sentenced to 11 years’ imprisonment. The conviction was declared to be a domestic violence offence and a serious violent offence.

The applicant told ambulance offices that the deceased fell off the toilet shortly before he had called them, and that she had also fallen in the shower the night before ([11]). However, a post-mortem of the deceased’s body revealed that the most likely cause of death was multiple injuries, including multiple rib fractures and liver lacerations. Such injuries were inconsistent with a fall in a shower, and were most likely to have resulted from a ‘focused and severe force, such as kicking or stomping’ ([14]). Although the applicant disagreed with the pathology report ([21]), his mobile phone records demonstrated that he knew the deceased had broken ribs ([22]). The agreed statement of facts recorded that the applicant was to be sentenced on the basis that he (1) unlawfully assaulted the deceased causing the injuries which led to her death; (2) kneed her to the stomach and to the back; (3) caused head and facial injuries; and (4) assaulted her in the past as evidenced by the facial bruising previously observed by witnesses and the healing fractures, which demonstrate that this was not an isolated violent incident ([24]).

Issue: The applicant filed an application for leave to appeal against his sentence on the ground that it was manifestly excessive, and wished to add an additional ground of appeal, namely, ‘that the learned sentencing judge erred in finding that his post-offence conduct demonstrated a complete disregard for the deceased and did not demonstrate remorse or concern for the deceased’ ([48]).

Held: The applicant’s antecedents and criminal history is discussed at [25]-[36]). The applicant has Aboriginal heritage. He also had a history of criminal offending, including convictions for breaking and entering, and property damage, and, most importantly, for offences against his former partner for property damage, common assault, contravention of a prohibition or restriction in an apprehended violence order, and use of a carriage service to menace, harass or offend. He claimed to have had a ‘socially deprived upbringing’ - his father was a ‘professional and serial criminal’ and his step-mother was emotionally abusive. His biological mother was not involved in his care due to very heavy alcohol dependency and abuse. He also claimed to have been sexually abused when he was 11 years old. Psychological testing suggested that the applicant’s intellectual level likely fell in the intellectually disabled range. A psychologist observed that his dysfunctional and abusive upbringing likely significantly influenced his offending behaviour.

The Court distinguished the present case from DeSalvo, Murray, West and Heazlewood where the courts did not consider a domestic violence offence ([89]). The applicant had a relevant prior criminal history, including convictions for prior domestic violence episodes, which distinguished him from the offenders in Sebo, Baggott, Pringle and Hutchinson ([91]). Given the ‘seriousness of the offending manifested by the brutality of the applicant’s assault and the relative defencelessness of the deceased, the applicant’s remorse after the assault, his timely plea of guilty, his antecedents, his deprived social upbringing, his intellectual disability and the state of his mental health, and bearing in mind the need for some personal deterrence due to his past domestic violence offences and his moderate risk of reoffending, the related need for community protection, and the importance of denunciation of domestic violence offences causing death’, the sentence imposed by the trial judge was just in all the circumstances, and thus stood as ‘the appropriate sentence for the offender and the offence’ ([95]-[96]). Consequently, leave to appeal against sentence was dismissed on both grounds.

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 (14 June 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘Leniency’ – ‘Mitigating factors’ – ‘Sentencing’

Charges: Attempted murder x 2.

Case type: Appeal against sentence.

Facts: The respondent and his partner had an argument after the respondent came home from the pub. The respondent later walked to his mother’s house, where his mother lived with her partner, and violently assaulted them. The respondent’s mother suffered multiple injuries, including a fracture to her eye socket, while her partner suffered fractures, 2 broken ribs and an injured liver. The respondent pleaded guilty to 2 counts of attempted murder. Crow J, the sentencing judge, sentenced the respondent to 2 concurrent sentences of 9 and a half years imprisonment.

Issue: The Attorney-General appealed against the 2 sentences on the ground of manifest inadequacy. Key questions included whether Crow J gave appropriate weight to the mitigating and aggravating factors of the offence and the respondent’s personal circumstances, and whether a sentence below 10 years imprisonment for 2 counts of attempted murder was manifestly inadequate.

Held: The Court dismissed the appeal. Appellate intervention is not justified simply because the result is markedly different from other sentences that have been imposed in other cases ([15]). Rather, the Attorney-General was required to demonstrate actual error with Crow J’s reasoning.

The Attorney-General’s submissions included that the attacks were premeditated, that the respondent lacked remorse, that his guilty pleas were late, and that he carried out the offending while he was subject to a Domestic Violence Order ([20]). The respondent had previously assaulted his mother. It was submitted that the Crow J did not give these matters appropriate weight ([21]).

The Court noted that the case involved substantial mitigating factors that were personal to the respondent ([23]). The respondent’s current state of health was partly caused by his mother’s lifelong neglect of him, and was significantly exacerbated by both of his victims’ irresponsibility over the respondent’s son’s death, and by their callousness afterwards ([40]).

It was in these circumstances that Crow J viewed the respondent’s case as ‘far from general.’ The most relevant circumstance was the killing of the respondent’s son by the victims’ dog ([37]). The offending was motivated by the son’s death ‘in a most violent fashion’ ([35]). The Court held that it was open for Crow J to give substantial weight to the mitigating factors and, subsequently, impose a somewhat ‘lenient’ sentence. It was not for the Court of Appeal to substitute its own views about these matters ([41]).

R v Black [2019] QCA 114 (11 June 2019)– Queensland Court of Appeal

‘Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Rape’

Charges: Assaults occasioning bodily harm x 3; Rape x 1.

Case type: Appeal against conviction.

Facts: The appellant was found guilty of 2 counts of assault occasioning bodily harm and one count of rape. He was acquitted of another charge of assault. For the offence of rape, the appellant was sentenced to 5 years’ imprisonment, suspended after 27 months with an operational period of 5 years. He was sentenced to concurrent terms of 12 months’ imprisonment on the other counts.

The appellant and complainant were married and had 2 children when the offending allegedly occurred. They separated around one year later. The first count of assault occasioning bodily harm involved allegations that the appellant pushed the complainant against a staircase, verbally abused her, ripped off her clothes and grabbed her breasts. The complainant said that she suffered bruising as a result of this event. The second count involved allegations that the appellant unlawfully assaulted and caused bodily harm to the complainant by slamming a door closed, hitting her fingers. The appellant also allegedly raped the complainant. It was alleged that the appellant and complainant were on good terms for many years after the couple had divorced. The complaint was made to the police over 8 years after the alleged events occurred and at a time when the complainant and the appellant were in litigation about their children.

Issue: The appellant appealed against the convictions on the ground that the jury’s verdict was unreasonable having regard to the evidence.

Held: The appellant submitted that the complainant’s attitude towards the appellant after separation was not that which would be expected of someone who had suffered the conduct alleged ([24]). The Court held that the cordial relationship between the parties provided a substantial basis for challenging her testimony, and may have justified a reasonable doubt in the minds of the jury in relation to the count of rape ([35]).

However the question for the Court was whether it was open, on the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over the Court, which had not seen or heard the complainant’s evidence being given ([36]).

Their Honours noted the importance of the timing of the complaint to police. While it strongly indicated that it was affected by the litigation between the couple about their children, it did not require the jury to have a doubt about the credibility of the complainant’s complaints. It was open to the jury to accept the complainant’s evidence, and the Court ordered the appeals against conviction to be dismissed ([37]-[38]).

R v ABE [2019] QCA 83 (14 May 2019) – Queensland Court of Appeal

‘Children’ – ‘History of abuse of accused’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Primary carer’ – ‘Stalking’

Charges: Stalking x 1 (Count 1); malicious act with intent x 1 (Count 2); grievous bodily harm x 1 (Count 3).

Case type: Sentence application and appeal.

Facts: The applicant experienced domestic violence from her husband (the complainant) from 2005. Cross-protection orders prohibited them from living together. The applicant arrived at the matrimonial residence with two children of the marriage. Her husband was residing at that residence. That night, the complainant sustained 4 stab wounds at the hands of the applicant. He also suffered 2 lacerations to the right hand that caused tendon and nerve damage. These events constituted Counts 2 and 3. The applicant and complainant were separated, and their severely disabled daughter, AA, was in hospital at the time of the offending. The applicant is her primary carer. The complainant for Count 1 was a family friend who was having an affair with the complainant.

The applicant pleaded guilty to the charges. She was sentenced to four months’ imprisonment for Count 1, and six years’ imprisonment with a parole eligibility date fixed after serving 15 months in custody for each of the other counts.

As the sentence for the stalking was already served, the purpose of the application was to review the sentence imposed for the other counts. The applicant applied for leave to appeal against her sentence on the basis that it was manifestly excessive and that the sentencing judge erred in failing to find that the circumstances of AA were exceptional and therefore justified a non-custodial sentence. The applicant also applied for leave to adduce further evidence, namely an affidavit from her adult daughter which detailed the care arrangements for AA since the applicant went into custody.

Issue: Whether the sentence was manifestly excessive; Whether the sentencing judge erred in failing to take into account the applicant’s disabled daughter’s needs.

Held: The appeal against the sentence was allowed, and the sentence was varied. Mullins J noted that the offences were committed in circumstances where the applicant was AA’s primary carer. When imposing an appropriate sentence, a balancing exercise needs to be undertaken which fulfils the purposes of ‘sentencing for serious offending involving premeditated use of a weapon to inflict injury in a domestic setting, but also [to] allow for the mitigating circumstances and particularly the applicant’s role in relation to the special needs of AA’. The period served in custody should be sufficiently long to reflect appropriate punishment for the crime, without separating the applicant from AA for any longer than is necessary ([47]). Her Honour held that, in light of AA’s needs, the custodial component of the sentence should have been reduced by a further period of 6 months. Therefore, the sentence was manifestly excessive to the extent of fixing the parole eligibility date after 15 months in custody rather than after a period of 9 months ([48]). Davis J and Sofronoff P agreed with the reasons of Mullins J. Citing R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22, Davis J noted that although hardship to an offender’s family resulting from the offender’s imprisonment cannot override all other sentencing considerations, there will be some cases where family hardship results in a substantial reduction either in the sentence, or the period to be served before parole eligibility even where the offending is serious ([52]).

The Court also refused the application for leave to adduce further evidence because it was neither necessary nor expedient, in the interests of justice, to receive further affidavits of the adult daughter ([37]).

R v Lan [2019] QCA 76 (7 May 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Self-serving statements’ – ‘Strangulation’

Charges: 1 x attempted murder

Case type: Appeal against sentence

Facts: The applicant was convicted on his plea of guilty of attempted murder (domestic violence offence) and sentenced to 9 years’ imprisonment with no further order ([1]). The applicant and complainant were involved in a relationship for approximately one year prior to separating, but remained friends. The offending conduct took place when the applicant attended the complainant’s unit. He made unwanted advances towards her, punched her and threatened to kill her. The complainant lost consciousness for a period and, upon regaining consciousness, saw the applicant standing over her with his pants and underwear down. He also strangled the complainant. The applicant later provided self-serving statements to the police which sought to blame the complainant for violent behaviour towards him ([3]-[13]).

Issue: The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive.

Held: The applicant made a number of written submissions in support of his application ([22]). He maintained that she had burned his face with a lighter ([23]), which was not part of the agreed statement of facts. He also asserted that the complainant suffered from a mental illness ([24]), and sought to minimise the seriousness of his conduct, which demonstrated a lack of remorse or insight ([25]).

The application for leave to appeal against the sentence for attempted murder was refused. Philippides and McMurdo JJA and Mullins J found that the applicant’s assertions conflicted with the agreed facts and partly reiterated the self-serving statements he made to police ([26]). Their Honours agreed with the respondent’s submissions that the sentence imposed was within the sentencing discretion and supported by authorities such as R v Sauvao, R v Ali, R v Seijbel-Chocmingkwan and R v Kerwin. After analysing these authorities at [28]-[31], their Honours found that they demonstrated that the 9 year sentence was within the sound exercise of the sentencing discretion ([32]).

R v Kau [2019] QCA 73 (3 May 2019) – Queensland Court of Appeal

‘Corroborative evidence’ – ‘Domestic violence offence’ – ‘Mistake direction’ – ‘Rape -sexual and reproductive abuse’

Charges: 2 x rape (domestic violence offence)

Case type: Appeal against conviction

Facts: The appellant was charged with 4 counts of rape, and convicted on 2 counts as a domestic violence offence. He was sentenced to 5 years’ imprisonment, suspended after 2 and a half years in custody. The complainant was the appellant’s wife. Counts 1 and 3 (subjects of the guilty verdicts) were particularised as vaginal rapes, while Counts 2 and 4 (subjects of the not guilty verdicts) were alleged anal rapes ([4]).

Issue: The appellant appealed against his conviction on 2 grounds ([5]):

•

‘The convictions should be set aside as unreasonable because the guilty verdicts were inconsistent with the not guilty verdicts on the other counts’;

•

‘There was a miscarriage of justice because the…trial judge ought to have directed the jury to consider whether they were satisfied beyond reasonable doubt that the appellant did not act under a mistake of fact as to the complainant’s consent on the two counts the subject of the guilty verdicts’.

Held: To succeed on the first appeal ground, the appellant must prove the verdicts were inconsistent as a matter of logic and reasonableness. The test is that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’ ([6]). There were 3 differences in the quality of the evidence considered by the jury ([9]), namely, the difference in what the complainant told her confidantes before she reported to the police ([10]), the difference in her report to the police ([11]), and a recording of a conversation between the complainant and appellant in which she made no mention to anal penetration ([12]). There was also evidence that might have corroborated Counts 1 and 3 ([15]), but there was no such evidence about Count 2 or 4 ([20]). The Court held that it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on Counts 1 and 3. The differences in the quality of the complainant’s evidence and appellant’s corroborative evidence provided a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts for Counts 1 and 3 and Counts 2 and 4 ([23]).

The second appeal ground argued that the jury ought to have been directed to consider whether the Crown had satisfied them beyond reasonable doubt that the appellant had not acted under an honest and reasonable, but mistaken, belief that the complainant had consented to the vaginal penetrations. To succeed on this proposed ground, the appellant must demonstrate that the trial judge should have given a mistake direction and that it is reasonably possible that the failure to do so may have affected the verdict ([24]). In light of the evidence, there was a negligible prospect of the jury, having accepted the occurrence of the vaginal penetrations, having a reasonable doubt whether the appellant acted under an honest and reasonable, but mistaken, belief as to the complainant’s consent. In the circumstances, the trial judge was under no duty to give such a direction ([39]). The appellant was therefore not deprived of a real chance of an acquittal by the failure of the trial judge to give a mistake direction to the jury.

Consequently, the appeal was dismissed.

R v Sollitt [2019] QCA 44 (19 February 2019) – Queensland Court of Appeal

‘Breach protection order’ – ‘Children’ – ‘Evidence’ – ‘Evidence issues’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’

Charges: Assault occasioning bodily harm x 2; contravention of a domestic violence order; rape.

Case type: Appeal against conviction. Application for an extension of time.

Facts: The appellant was charged with a number of offences against the complainant, his then de facto partner. The complainant’s daughter and son gave evidence of the events ([33]-[40]). The complainant herself gave evidence asserting that she was in a ‘domestic violence cycle’ ([23]). After a trial, the appellant was convicted of two counts of assault occasioning bodily harm (domestic violence offence) and contravention of a domestic violence order. The jury acquitted the appellant of a charge of torture and was unable to reach a verdict in relation to a charge of rape. After a retrial on the charge of rape, the appellant was convicted and sentenced to seven years’ imprisonment ([1]-[4]). The appellant submitted that consent was given by the complainant and that sexual intercourse in the context of the violent circumstances was not a departure from the usual dynamics of the relationship. The Crown contended that if there was any ostensible consent by the complainant, it was induced by force and invalid at law, and that the appellant could not have held a mistake of fact as to consent ([46]). The appellant appealed against his conviction of rape on the grounds that the jury’s verdict was unreasonable and unsafe, and there was a miscarriage of justice, resulting from the trial judge’s misdirection of the jury on the defence of mistake of fact ([5]).

Further, the appellant sought an extension of time in which to appeal his sentence ([6]). The applicant’s explanation for delay in filing the application for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence and that he thought he would be able to get more time ([69]).

Issues: Whether the verdict was unreasonable or insupportable. Whether the appeal should be allowed. The predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent.

Decision and reasoning: The appeal against conviction was dismissed and the application for an extension of time was refused.

Appeal against conviction:

In relation to the appellant’s contention that the jury’s verdict was unreasonable or cannot be supported by the evidence, the Court considered whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty based on the whole of the evidence. In determining this question, the Court undertook its own independent assessment of the evidence, assessing its sufficiency and quality ([45]). As to the issue of consent, the Court held that it was entirely open to a jury to find that the complainant gave an honest and reliable account, and it was not surprising that the jury were satisfied that the prosecution had negatived any mistake of fact as to consent on the part of the appellant. There was no evidence from the appellant that he held an honest but mistaken belief as to voluntary consent. Moreover, the appellant’s conduct immediately following the offence and his admission to the complainant’s daughter undermined any assertion that the appellant honestly and reasonably believed that the complainant consented ([51]-[52]). It was also appropriate for the jury to have regard to the ‘ongoing domestic violence in the relationship’ and the complainant’s continuation of the relationship in considering the issues raised by the case ([53]).

The appellant also made a number of complaints about the trial judge’s directions, such as the fact that his Honour used a number of terms interchangeably regarding consent ([58]) and, in giving his final direction on mistake of fact, failed to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond reasonable doubt ([64]). The trial judge’s use of the words other than ‘consent’ was not found to constitute a miscarriage of justice ([60]). Further, there was no error in failing to specifically mention the standard of proof in the final redirection, as it was given in conjunction with the aide memoire, which itself identified the requisite standard of proof ([66]).

Extension of time:

In considering whether an extension of time should be granted, the court examined whether there was any good reason to account for the delay and considered whether it was in the interests of justice to grant the extension ([68]). The Court was not persuaded that there was any good reason for the delay to grant an extension ([69]). Moreover, the applicant was 43 years old at the time of the sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting. These factors supported the sentence imposed and indicated that the sentence was not manifestly excessive ([70]).

R v ABB [2019] QCA 22 (19 February 2019) – Queensland Court of Appeal

‘Evidence’ – ‘Evidence issues’ – ‘Expert or opinion evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Self-represented litigants’

Charges: Assault, constituting a domestic offence x 4.

Case type: Appeal against conviction. Application for extension of time.

Facts: The applicant was convicted on four counts of assault, each of which constituted a domestic offence. All four counts were committed against the applicant’s wife on the same day. The applicant grabbed the complainant’s hair and pulled her to the ground, put his hands around her throat and choked her, and punched her on the jaw with both fists, which resulted in a fracture and required her teeth to be wired together and the fracture closed with a plate and screws ([4]). At the trial, Dr Webster gave evidence, based on the complainant’s medical records, that the injury had been caused by a blunt force trauma to a significant extent ([30]). The applicant lodged a notice of appeal against his conviction when the time for lodging an appeal had expired over three weeks prior. As a result, the applicant also filed an application for extension of time within which to appeal.

The applicant appealed on the ground that the verdicts were unsafe and unsatisfactory ([32]). He also raised a number of specific grounds, including that

•

The prosecution led propensity evidence, the prejudicial effect of which outweighed any probative force, and created an unfair trial ([33]-[36]);

•

The evidence of Dr Webster was fabricated, causing a miscarriage of justice ([37]-[43]);

•

The complainant at trial had previously practiced her evidence and amended the part of the evidence that would have been harmful to the prosecution case ([44]-[45]);

•

A prejudicial answer was given by the complainant during the trial and there was no direction given to the jury to disregard it ([46]-[51]);

•

There was discrepancy in the complainant’s evidence as to how she was punched;

•

Dr Webster was not qualified to give an opinion that the injury constituted grievous bodily harm as he was merely a trainee as an oral and maxillofacial surgeon ([54]).

Issues: Whether the grounds of the applicant’s proposed appeal had reasonable prospects of success to justify granting an extension of time.

Decision and reasoning: When considering an application for extension of time, the court will examine whether there is good reason for the delay and whether it is in the interests of justice to grant the extension. Length of delay is also a relevant consideration ([7]). Although the length of the delay was not significant, the applicant was well aware of the time limit for filing and allowed the time to pass without taking steps to file a notice of appeal. The Court was inclined to grant the extension of time if the matter had been confined to these considerations; however as the merits of the proposed appeal could not be substantiated, the court refused the application ([22]-[23]).

The applicant’s grounds of appeal failed for several reasons. First, the jury was expressly directed that the evidence was not led as propensity evidence and therefore the trial did not miscarry on the basis that the prosecution led such evidence ([36]). Second, the applicant’s contention that Dr Webster’s alteration of his opinion constituted some sort of fabrication of his evidence, causing a miscarriage of justice, was misconceived ([37]). Third, any suggestion that the complainant was able to rehearse or practice her evidence at the first trial was simply the result of the fact that the first trial was aborted. Whatever benefit she got from giving evidence on that occasion was balanced by the fact that the defence counsel had the opportunity to cross-examine her more than once, and so no prejudice was caused ([45]). Fourth, the Court found that an answer by the complainant, which the applicant argued caused him prejudice as it revealed his infidelity, was unlikely to have carried much weight with the jury and did not deprive the applicant of a fair chance of acquittal ([51]). Fifth, the applicant contended that there were discrepancies in the complainant’s evidence because in her evidence in chief, she said that she was punched after she fell; however in cross-examination, she said she did not scream when she was punched, but when she fell. The Court held that there was no real inconsistency as the first piece of evidence related to when she was punched and the second to when she screamed ([52])-([53]). Sixth, it was admitted at the trial that the injury constituted grievous bodily harm. The fact that Dr Webster was a trainee did not mean that he was not a relevant expert ([54]-[58]).

In reviewing the evidence ([94]-[107]), the Court held that it was open to the jury to be satisfied of the applicant’s guilt. As all the grounds of the applicant’s appeal lacked merit, the appeal had no reasonable prospect of succeeding and the application for an extension of time was refused ([108]). The Court also took into account the fact that the applicant was self-represented ([59]).

R v MDB [2018] QCA 283 (19 October 2018) – Queensland Court of Appeal

‘Aggravating feature’ – ‘Appeal against sentence’ – ‘Breach protection order’ – ‘Domestic violence offences’ – ‘Strangulation’

Charges: 1x common assault, 1x threatening violence, 1x assault occasioning bodily harm, 1x choking in a domestic setting, and 1x wilful damage.

Appeal type: application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant from August 2016. On 22 December 2016, a protection order requiring that the applicant be of good behaviour and not commit acts of domestic violence against the complainant was issued pursuant to the Domestic and Family Protection Act 2012 (Qld) (DFVPA). On 17 February 2017, the applicant attacked the complainant. Consequently, the applicant was charged with five offences (common assault, threatening violence, assault occasioning actual bodily harm, choking in a domestic setting, wilful damage) and three summary offences (deprivation of liberty, breach protection order, unlawful possession of a weapon). On 15 February 2018, the applicant was convicted and sentenced on the five indicted offences and convicted of the three summary offences without any further punishment.

Issues: there were four grounds of the applicant’s appeal:

•

Four-year sentence imposed for the offence of choking was manifestly excessive

•

The sentencing judge erred by relying upon the protection order as evidence that the offending was not isolated.

•

The sentencing judge erred by finding that the applicant had made a threat to kill.

•

The sentencing judge erred by finding that the applicant was generally not credible because he told police it wasn’t illegal to possess a “flick knife” in a private place in circumstances where he was previously convicted of possessing a knife in a public place.

Decision and reasoning: application for leave to appeal against the sentence refused.

Whether the sentence was manifestly excessive was determined by Gotterson JA through a consideration of relevant authority, the nature and purpose of the offence of choking, and the circumstances of the case at hand. Both R v MCW [2018] QCA 241 and Bennet were referred to by his Honour to illustrate the seriousness of the offence and the factors relevant to sentencing offenders under the offence (see [44]-[50]). His Honour then noted there were five material facts that warranted the severity of the punishment; these factors included, among others, the disturbing circumstances of the offending, the physical, emotional and financial impact it had on the complainant, and the applicant’s concerning criminal history (see [52]).

As to the second ground of appeal, his Honour initially notes that the order was part of the agreed facts which formed the basis of the sentence proceedings. Gotterson JA then refers to s 9(3)(g) and s 9(10A) of the Penalties and Sentences Act 1992 in asserting that the existence and contravention of an order is a key consideration for the sentencing judge and forms an aggravating feature respectively. In doing so, his Honour dismisses the foundation of this contention that the order cannot be referred to as evidence. In addressing the applicant’s specific contention, his Honour observes that orders are only made on the basis of evidence of previous difficulties in a relationship and that accordingly, the sentencing judge’s inference that the order was a result of previous relationship difficulties was a reasonable one. Taking this into account, his Honour then affirms that it was correct for the sentencing judge to state that the offences committed on 17 February 2017 were not “an isolated and exceptional incident” (see [26]).

Gotterson JA rejected the third ground of appeal on the basis that the applicant’s contention mis-interpreted the sentencing judge’s remarks in coming to the finding that the applicant threatened to kill her (see [27]). Having regard to the seriousness and criminality of the applicant’s conduct, his Honour perceives the sentencing judge’s finding as reflecting no error at all (see [28]).

Similarly, his Honour also rejected the fourth ground of appeal on the basis that it was a misconstruction of the sentencing judge’s comments. Gotterson JA was of the view the judge made no error in his assessment of the reliability of the matters at hand on the basis of the applicant’s instructions (see [33]).

R v MCW [2018] QCA 241 (28 September 2018) – Queensland Court of Appeal

‘Breach of protection orders’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Strangulation’

Charges: Assault occasioning bodily harm x 2; Choking, suffocation or strangulation in a domestic setting x 1; Contravention of domestic violence order x 1

Appeal type: Appeal against sentence

Facts: The applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of choking, suffocation or strangulation in a domestic setting and one summary charge of contravention of domestic violence order ([4]). The prosecutor, relying on R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228, submitted to the sentencing judge that three years’ imprisonment was appropriate. A variation of the protection order was also sought so as to extend its operation and add a further ‘no contact’ condition.

The sentencing judge held that the offences were ‘cowardly, prolonged and particularly violent’ ([23]) and that the offender posed a genuine threat to the community and particularly, to the complainant ([25]). In respect of each of the assault occasioning bodily harm counts, the applicant was sentenced to imprisonment for two years and six months. Sentences of imprisonment for three years and six months was imposed for the offence of choking, suffocation or strangulation in a domestic setting, and three months for the summary charge. All sentences were concurrent. No date for eligibility for parole was specified. The applicant was therefore ineligible to apply for parole prior to having served half of the effective sentence of imprisonment of three and a half years ([4]).

The applicant appealed on the basis that the sentencing judge had denied him procedural fairness by failing to forewarn the parties of his intention to reduce the head sentence slightly to reflect the guilty plea, and to provide him with an opportunity for a parole at earlier than half the sentence. He also appealed on the basis that the sentence was manifestly excessive.

Issues: Whether the sentence was manifestly excessive; Whether there was a denial of procedural fairness.

Decision and reasoning: Application was refused on the basis that no procedural unfairness arose on the facts and the sentence was not manifestly excessive.

•

Manifestly excessive sentence

The applicant submitted that the sentence imposed was manifestly excessive and that the notional starting point of four years’ imprisonment for the offence against s 315A of the Criminal Code 1899 (Qld) (the ‘Code’) was too high ([33]). Conversely, the respondent contended that consideration must not only be given to the particular circumstances of the applicant’s case, but also to the legislative intention for enacting s 315A to provide for specific liability, and a potentially increased maximum penalty, for offences involving choking (and similar conduct) committed in a domestic setting ([34]). Prior to the sentencing, the Code was amended to create a specific offence of strangulation in a domestic setting (see s 315A). That section prescribes a maximum penalty of seven years to deter the increasing frequency of such behaviour. The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –

‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’

The Court was cautious to apply authorities for sentences for offences constituted by conduct comparable to choking, suffocation or strangulation in a domestic setting, prior to the enactment of s 315A. R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228 involved assaults occasioning bodily harm, the maximum penalty for which was seven years’ imprisonment. The Court found that it was not useful to consider the sentences in those cases as comparable authorities for an offence of strangulation in a domestic setting, having regard to the legislature’s intention for enacting s 315A and the seriousness of that offence.

The test of manifest excessiveness depends on whether the sentence is unreasonable or unjust, in light of all the factors relevant to the sentence (see Hili v The Queen [2010] HCA 45). The fact that the complainant lost consciousness, and that the offending occurred only 18 days after his release from custody for breach of a previous domestic violence order, increased the severity of the offence. The applicant’s criminality was also increased by the fact that the choking incident was preceded, and then followed, by an assault occasioning bodily harm. Further, the applicant showed no remorse for the offending and refused to undergo counselling. Boddice J concluded that the circumstances indicated that the applicant’s offending amounted to ‘an episode of sustained violence undertaken by a recidivist who expressed no remorse’ ([47]). Therefore, the Court found that the sentencing judge did not err in sentencing the offender to three years and six months without any further mitigation, and that the sentence was not manifestly excessive in the circumstances ([44]).

R v Ellis [2018] QCA 70 (17 April 2018) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Risk factors - controlling, jealous, obsessive behaviours’ – ‘Self-represented litigant’ – ‘Women’

Charges: Torture x 1; Assault occasioning bodily harm x 1; Malicious act with intent x 1.

Appeal type: Appeal against sentence.

Facts: The complainant and the applicant had been in a relationship for two months ([4]). The complainant ended the relationship. The next day, the applicant attended at her home and she let him inside. He accused her of being unfaithful to him ([4]). Over the next four hours, the applicant did the following acts to the complainant: slapped her; ripped an earring from her ear; punched her; struck her with a garden trowel; locked her in a cupboard; heated the trowel and a butter knife over the flame of a gas stove and struck her on the legs and near her vulva, causing burns; and forced her to shower, exacerbating the burns ([5]).

The applicant was sentenced to six and a half years’ imprisonment for the torture charge, 18 months’ imprisonment for the assault occasioning bodily harm charge, and 6 years’ imprisonment for the malicious act with intent charge. A serious violent offence declaration was made in respect of the torture charge.

Issues: Whether the sentence of six and a half years’ imprisonment for the torture charge was manifestly excessive.

Decision and Reasoning: The application for leave to appeal against the sentence was refused. It was within the trial judge’s discretion to sentence the applicant and also make a serious violent offence declaration ([19]). The trial judge appropriately balanced the applicant’s personal circumstances, including the fact that he was subject to domestic violence as a child, with the fact that he had a criminal history including domestic violence ([12]).

Harvey v Queensland Police Service [2018] QCA 64 (6 April 2018) – Queensland Court of Appeal

‘Protection orders’ – ‘Related family law proceedings’ – ‘Self-represented litigants’ – ‘Systems abuse’

Charges: Contravention of temporary protection order x 9; Public nuisance x 1; Using a carriage service to menace, harass or cause offence x 1; Failure to surrender into custody in accordance with an undertaking x 1.

Appeal type: Application for leave to appeal against refusal to grant extension of time to appeal against conviction.

Facts: The applicant had been in a parenting dispute with the mother of his son. There were 5 proceedings in which the applicant sought extensions of time to appeal against his conviction:

1.

Six contraventions of temporary protection orders, involving sending threatening emails to the aggrieved.

2.

Public nuisance, involving swearing at police officers outside a police station.

3.

Two contraventions of domestic violence order, involving emailing the aggrieved.

4.

One contravention of domestic violence order and one charge of using a carriage service to menace, harass or cause offence, involving emailing and telephoning the aggrieved.

5.

Failure to surrender into custody in accordance with an undertaking.

The applicant sought to justify the breaches of domestic violence orders on the basis that they were justified under an order of the Family Court (which allowed the applicant to contact the aggrieved for the purpose of communicating in relation to contact with the child of the relationship) ([11]).

Issues: Whether the appeal should be allowed. The applicant sought leave to appeal on the basis that the District Court Judge erred in:

•

not having regard to exculpatory evidence of the applicant’s mental health issues;

•

not allowing exculpatory new evidence;

•

stating that the emails were not relevant to s 286 Criminal Code Act 1899 (Qld);

•

not following Supreme Court authority ([25]).

Decision and Reasoning: The application for leave was dismissed. Sofronoff JA held that none of the grounds were supported by evidence or could justify granted leave to appeal ([26]-[29]).

R v Hutchinson [2018] QCA 29 (9 March 2018) – Queensland Court of Appeal

‘Domestic violence as an aggravating factor’ – ‘Imprisonment’ – ‘Murder’ – ‘Retrospective operation of sentencing considerations’ – ‘Sentencing’

Charges: Murder x 1; Fraud x 1;

Appeal type: Appeal against sentence.

Facts: The deceased and the appellant had been married for a lengthy period. The fraud charge occurred when the appellant mortgaged the family home by using a third party to pretend to be the deceased ([5]). The deceased disappeared, and the appellant was charged with her murder. The appellant deceived the deceased’s family and friends in the days after she disappeared and never revealed how she died or the whereabouts of her body ([6]-[12]). At trial, the appellant was acquitted of murder, but convicted of manslaughter. He pleaded guilty to the fraud charge on the first day of the trial ([3]). The appellant was sentenced to 15 years and six months, and the manslaughter offence was declared a serious violence offence and a domestic violence offence under s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (‘the Act’).

Issues: Whether the sentencing judge erred in retrospectively applying s 9(10A) of the Act or whether the sentence was otherwise manifestly excessive.

Decision and Reasoning: The appellant argued that s 9(10A) of the Act, which has the effect that a context of domestic violence is an aggravating factor in sentencing, should not apply because it should not have retrospective operation ([24]). The Court held that the section is a procedural provision and does not attract the common law presumption against retrospectivity. Therefore, the section applies to all sentencing from its commencement ([43]).

Justice Mullins, Fraser and Morrison JJA agreeing, stated that the sentence was not manifestly excessive, taking into account the context of domestic violence, the appellant’s deceit in impersonating the deceased and failing to disclose the whereabouts of the deceased’s body, his lack of plea of guilty, his lack of remorse and the unchallenged finding that the deceased died a violent death ([53]).

R v Maxwell [2018] QCA 17 (27 February 2018) – Queensland Court of Appeal

‘Following, harassing and monitoring’ – ‘Post-separation violence’ – ‘Revenge porn’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse’

Charges: Stalking x 1; Attempting to pervert the course of justice x 1.

Appeal type: Appeal against conviction and sentence.

Facts: The applicant and the complainant had been in a relationship for 18 months. There were 2 instances of violence ([2]). After the relationship ended, the applicant followed the complainant and sent her a total of 77 text messages, 5 emails and phone calls by which the complainant felt threatened and harassed ([7]). After the complainant made a complaint to the police, the applicant sent further emails to her threatening to release recordings and videos of them having sex if she did not withdraw the charge ([9]).

The appellant was sentenced to a head sentence of 18 months’ imprisonment, with a parole release date after 3 months ([12]).

Issues: Whether the conviction should be set aside and whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

In relation to the appeal against conviction, the appellant had argued that he was not provided with proper legal advice ([30]). Justice Morrison (Sofronoff P and Phillip McMurdo JA agreeing) dismissed this argument as having ‘no merit’ ([44]).

In relation to the appeal against sentence, the appellant relied on the impact of the sentence on his ability to obtain licences to work in the financial services industry ([45]). Justice Morrison dismissed this argument because it could only be relevant to whether a conviction is recorded ([48]).

R v Stephens [2017] QCA 173 (15 August 2017) – Queensland Court of Appeal

‘Attempted murder’ – ‘Children present’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Firearms’ – ‘Moral culpability’ – ‘People with mental illness’ – ‘Post-separation violence’ – ‘Stalking’ – ‘Strangulation’

Charges: Attempted murder x 1.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant and complainant were separated ([6]). After they separated, the complainant obtained a domestic violence order against the applicant because he had sent her text messages threatening to kill her. On the date of the offence, the applicant followed the complainant and her children to a shopping centre, armed with a rifle and 13 rounds of ammunition ([7]). He shot her in the temple at close range, then attempted to strangle her. The four children in the car saw every detail of what had occurred ([8]-[9]). He was sentenced to 15 years’ imprisonment.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

Justice Douglas, Holmes CJ and Gotterson J agreeing, found that the sentencing judge properly weighed the relevant factors. The applicant’s mental health disorders did not bear on his moral culpability ([43]). This was a ‘horrific example of the crime of attempted murder’. The victim continues to suffer severely. There was a strong need for protection and general and specific deterrence. The appropriate range would have been 13 to 17 years ([44]).

SCT v Director of Public Prosecutions (Qld) [2017] QCA 31 (13 June 2017) – Queensland Court of Appeal

‘Bail’ – ‘Choke hold’ – ‘Contravention of domestic violence order’ – ‘Strangulation’

Charges: Contravening domestic violence order x 2; Choking, suffocation or strangulation in a domestic relationship x 1.

Case type: Renewed application for bail.

Facts: The applicant and complainant had been in a domestic relationship. A domestic violence order had been granted ([7]). The complainant made the following allegations: the applicant went to the complainant’s house and punched her in the leg ([7]); he threw a pillow at the complainant; and put her in a choke hold ([8]). Bail was originally refused ([9]). Since then, new evidence of a demonstrated that a trial in the District Court would be more than a year away ([10]).

Issues: Whether the evidence of a new trial date justified a grant of bail.

Decision and Reasoning: Bail was granted with conditions that he not have contact with the complainant, that he reside at a specified address, and that he report to the police daily.

Under s 16(3)(g) Bail Act 1980 (Qld), for which the new offence of strangulation is a ‘relevant offence’, the onus was on the applicant to show cause why bail should be granted ([13]). The Court explained that on one hand, there was a real risk that he would reoffend because the applicant and complainant lived in the same town, and they may contact each other ([14]). On the other hand, he had accommodation with family members available, an offer of employment ([15]), and there was a real prospect that he would spend longer on remand than he would serve in custody ([16]). On balance, the risk of reoffending was not unacceptable (s 16).

Ackland v Director of Public Prosecutions (Qld) [2017] QCA 75 (28 April 2017) – Queensland Court of Appeal

‘Assault’ – ‘Bail’ – ‘Risk of re-offending’

Charges: 1 x Assault occasioning bodily harm; 1 x Choking.

Appeal type: Defendant’s appeal against denial of bail application.

Facts: The victim alleged that, during an argument, the appellant: threatened to knock her out; grabbed her by the throat; punched her in the face; and, when she indicated that she was going to call the police, destroyed photographs in the house (see [8]-[10]).

The trial judge refused bail on the basis that:

•

12 months earlier, the appellant had committed a breach of a domestic violence order against a former girlfriend (see [12]);

•

the Crown case appeared to be strong, by evidence of photographs of cuts and abrasions (see [14]); and

•

there was a danger to female victims in such domestic violence situations (see [18]).

His Honour referred to, but did not place weight on, a handwritten note from the victim indicating that she wanted to withdraw the charges (see [15]-[16]).

Issues: Whether the trial judge erred in denying bail to the defendant.

Decision and Reasoning: The appeal was dismissed.

Atkinson J, with whom Morrison JA and Douglas J agreed, considered that the trial judge’s discretion had not been improperly exercised (see [27]). The appellant had submitted that the trial judge based the risk of re-offending on an irrelevant ground, namely a generalised risk to victims of repeated offences. However, Atkinson J considered that the trial judge properly considered the particular risk to the victim, evidenced by two assaults being committed 10 hours apart, the victim’s concern, and the previous breach of domestic violence order (see [28]-[29])

At the time of the bail application, amendments to the Bail Act which reversed the presumption of bail for domestic violence offences had not come into effect (see [30]). By the time of the appeal against bail, the amendments had come into effect. Giving effect to the reversed onus, Atkinson J considered that the appellant had not satisfied the court that he did not represent an unacceptable risk of re-offending (particularly against the victim) while on bail (see [35]).

R v KAP [2016] QCA 349 (23 December 2016) – Queensland Court of Appeal

‘Expert evidence’ – ‘Rape’ – ‘Visible injury’

Charges: Rape x 1.

Appeal type: Appeal against conviction.

Facts: The accused and the complainant were married, but separated. The accused went to the home of the deceased, and sexual intercourse took place. The complainant said that the accused had held her down and threatened her, but the accused said that the intercourse was consensual ([1]).

Issues: Whether the conviction should be overturned on the grounds that expert evidence about the frequency of visible injury in sexual assault cases should not have been adduced, and the jury should have been given directions as to how to use that evidence ([2]-[3]).

Decision and Reasoning: The expert witness gave evidence that, according to cohort studies and his own personal experience, the absence of visible injury to genitalia is not determinative of whether sexual assault has occurred ([22]-[29]). Morrison JA (with whom Philip McMurdo JA and Mullins J agreed) held that the evidence:

•

was relevant ([31]-[32]);

•

was based on admissible data ([33]-[34]);

•

fell within the scope of expert evidence because injury arising out of sexual assault is accepted as being part “of a body of knowledge or experience” which ordinary lay people would not have (citing Osland v The Queen (1998) 197 CLR 316 ([35]-[37]);

•

was necessary to dispel a common fallacy that physical injury normally follows rape ([41]).

ZXA v Commissioner of Police [2016] QCA 295 (15 November 2016) – Queensland Court of Appeal

‘Domestic violence protection order’ – ‘Rights of appeal’

Appeal Type: Appeal against domestic violence protection order.

Facts: The applicant was named as the respondent in a domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). He filed an appeal to the District Court under s 164 of the Act. The appeal was dismissed. The applicant then attended the Supreme Court registry to file an application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld). Despite being told that there was no right of appeal, the applicant persisted until the registry acceded to his demands.

Issue/s: Whether the Court of Appeal had jurisdiction under s 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) to hear the appeal?

Decision and Reasoning: The appeal was dismissed. Under s 169(2) of the Act, the decision from which the applicant seeks leave to appeal ‘shall be final and conclusive’. While s 118(3) of the District Court of Queensland Act allows a party to appeal, it does not apply to a decision of the District Court in its appellate jurisdiction under s 169(1): see CAO v HAT & Ors [2014] QCA 61 [25] – [27]. The President concluded:

‘The scheme under the Act contemplates that domestic violence protection orders can be made by a wide variety of courts with a right of appeal from such orders…The scheme does, however, clearly contemplate only one level of appeal. The plain words of s 169(2) that such an appeal is “final and conclusive” indicate that the legislature intended that there be no further appeal. The applicant has exhausted his single right of appeal from the Magistrates Court to the District Court. He can, of course, apply to vary the domestic violence protection order under s 86 of the Act, including to vary the duration of the order: see s 86(3)(b) of the Act’.

R v Williams [2015] QCA 276 (18 December 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Separation’

Charge/s: Attempted murder, burglary.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant had separated from his wife, and had recently found out that she was in a new relationship. He broke into her home, stabbed her while she was sleeping on her back next to her two year old daughter and then ran off. She immediately awoke to find a knife sticking out of her chest, which she removed, at which point she collapsed. He was sentenced to 15 years imprisonment and declared to be a serious violent offender.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that the trend of sentences for attempted murder cases shows that the appropriate range is 10 to 17 years, and that 15 years is excessive compared with analogous cases. This argument was rejected. Bond J (with whom Jackson J and Philip McMurdo JA agreed) at [17]-[30] provided a useful summary of previous attempted murder cases involving domestic violence. The Court acknowledged that the offence of attempted murder attracts a wide variety of punishments. However, consistent with the approach articulated by the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where comparable sentences can provide assistance, but do not set a range of permissible sentences, the Court held that the original sentence was within the discretion open to the trial judge.

R v Johnson [2015] QCA 270 (11 December 2015) – Queensland Court of Appeal

‘Consent’ – ‘Rape’ – ‘Sexual and reproductive abuse’

Charge/s: Rape.

Appeal Type: Appeal against conviction.

Facts: The appellant met the complainant on Facebook and was in a relationship with her for seven weeks. During sexual intercourse, the complainant withdrew her consent and alleged she was then raped by the appellant. The appellant was convicted of rape following a trial.

Issue/s: One issue concerned whether the verdict was unreasonable and unsupportable having regard to the evidence.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Philippides JA agreed) held that it was open to the jury to be satisfied beyond reasonable doubt that by the complainant saying ‘no’ and ‘stop’ multiple times, he was not under any mistake as to whether she had consented to sex.

R v Leedie [2015] QCA 216 (6 November 2015) – Queensland Court of Appeal

‘Deprivation of liberty’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Pre-recorded evidence’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Support person’ – ‘Torture’

Charge/s: Rape, deprivation of liberty, torture.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of eight offences including rape, deprivation of liberty and torture. The appellant had been in an ‘off and on’ romantic relationship with the complainant. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of the complainant or other parties. There was no history of violence in the relationship. The offending arose after the appellant asked the complainant to visit his house to have sex. Consensual sex then occurred. However, following the appellant seeing a message from his brother on the complainant’s phone, he became angry, proceeded to become extremely violent, and raped the complainant multiple times across the night. He did not let her out of the house, and tortured her. The complainant was deemed a ‘special witness’, and gave pre-recorded evidence two days before trial, with her mother present as a support person (pursuant to s 21AK of the Evidence Act 1977). Her mother was made aware by the judge during the recording that she was not to have any participation in the proceedings other than as a support person. The mother then made comments to the complainant which reminded her about the details of one of the rape offences. It was accepted at [55] that her mother’s conduct was ‘inappropriate’. However, the trial judge, in response to defence counsel’s application for a mistrial, made detailed warnings to the jury about the caution they needed to apply when considering the complainant’s evidence.

Issue/s: One ground of appeal concerned whether the trial judge erred by failing to discharge the jury after the complainant’s mother suggested to the complainant what she might say in her evidence.

Decision and Reasoning: The appeal was dismissed. The Court held that these directions were sufficient to warn the jury that the reliability of the complainant’s evidence may have been undermined by her mother’s reminder of the details of the appellant’s offending. Furthermore, at trial, the judge offered to order a further pre-recording of the complainant’s evidence, which was declined by the appellant.

R v Andres [2015] QCA 167 (11 September 2015) – Queensland Court of Appeal

‘Circumstantial evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Whether guilty verdict unreasonable’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of the murder of his wife. His version of events included, (among other things) the contention that the deceased had injured him with a fork and he was placed in fear of his life. (See at [4]-[113]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s: The appellant admitted that he had caused his wife’s death, but maintained that he did not have the requisite intention to prove murder. As such, the question for the Court was whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. More specifically, the issue was whether the accused had the requisite intention to prove murder. Also at issue was whether he had killed his wife by accident or in self-defence.

Decision and Reasoning:

The appeal was dismissed, with the Court finding that a guilty verdict was open to the jury on the evidence. Boddice J, (with whom Morrison JA and Carmody J agreed), found that the only evidence to support the conclusion that the death occurred by accident or in self-defence was the appellant’s own evidence, which lacked probative force. This was because, among other things, the appellant admitted he had deliberately lied and changed his story, and he had dissolved the deceased’s body in acid, which made it difficult to determine the cause of death. While the case was wholly circumstantial, it was noted that intent can be proved by inference, by considering the probative value of the evidence as a whole.

R v Jones [2015] QCA 161 (1 September 2015) – Queensland Court of Appeal

‘Evidence’ – ‘Expert testimony’ – ‘Killing for preservation in an abusive relationship’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for the murder of his mother. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim or other parties. The issues at trial related substantially to self-defence and provocation. Evidence of the history of the relationship was admitted in the context of the defence under s 304B of the Queensland Criminal Code of killing in an abusive domestic relationship (See further at [3]-[13]).

Issue/s: Whether the trial judge erred by not admitting expert psychiatric evidence.

Decision and Reasoning: The appeal was dismissed. North J (with whom Holmes JA and Henry J agreed) held firstly that this evidence was not admissible under s 132B of the Evidence Act 1977. It was not relationship evidence. The Court also held that the matters that the psychiatrist spoke of were not complex in a scientific sense, and the jury, properly instructed, were able to understand them without needing to hear the expert evidence itself. The psychiatrist did not identify that the appellant was suffering from any recognised psychiatric illness. Rather, he only spoke generally that the appellant had developed coping strategies in response to his mother’s violent and difficult behaviour. The jury, in applying common sense, would have been able to reach this conclusion themselves. North J, comparing the ‘battered wife defence’, noted that there is no ‘battered child defence’ in law. That is, there is no defence where, ‘insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent’ (See at [19]).

R v Pearson [2015] QCA 157 (28 August 2015) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his wife (See further at [2]-[5]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife. The issues at trial concerned whether he had the requisite intent to kill or do grievous bodily harm, and whether the defence of provocation arose.

Issue/s: One issue on appeal was whether the trial judge misdirected the jury in regards to the relevance of evidence of prior acts of domestic violence and discreditable conduct. In particular, the appellant submitted that the jury were misdirected about how they could use the evidence when deciding whether the appellant had the requisite intent for murder.

Decision and Reasoning: The appeal was dismissed. At trial, the jury was directed to the effect that the evidence was relevant to explain the nature and animosity of the relationship between the appellant and the deceased. They were specifically directed that if they were to use that evidence to assist in determining the appellant’s state of mind at the time of the offence, they must be satisfied beyond reasonable doubt that the past acts occurred. Holmes JA (Morrison JA and Henry J agreeing) held that s 132B of the Evidence Act 1977 can be used to show a particular propensity of the accused to commit acts of a similar nature, as well for specific issues like intent. Her Honour, applying the approach of the High Court in Roach v The Queen [2011] HCA 12, noted that these two uses are distinct. In this case, the domestic violence evidence was only relevant as relationship evidence to prove intent. Propensity was not relevant because it was not in dispute that the appellant had caused the death of his wife. The jury were directed to this effect. A general propensity warning was not needed for the same reasons.

R v Piper [2015] QCA 129 (17 July 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Breach of domestic violence order’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm with intent, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant’s wife attended a hotel with a male friend. He falsely believed his wife to be in a romantic relationship with the friend. In an unprovoked attack, he stabbed the friend forcefully multiple times. The victim sustained six stab wounds, including one to his neck. The victim suffers lasting psychological difficulties as a result of the attack. There was a domestic violence order in place which prevented the applicant from coming within five metres of his wife. The attack breached this order, which became an aggravating feature in sentencing. He had no criminal history. He was sentenced to seven years’ imprisonment, becoming eligible for parole after three years.

Issue/s: One issue concerned whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was granted. The offending was very serious. It was ‘a sustained, severe and premeditated attack, whilst armed with a knife, on a victim who had done nothing by way of provocation’ (See at [36]). It was committed in the context of a domestic violence order being in place. As such, the head sentence, whilst at the upper end of the scale, was within range, taking into account his lack of criminal history and plea of guilty. However, the Court concluded that the parole eligibility date should be brought forward. The applicant’s guilty plea, while late, ensured that witnesses did not have to give evidence, which was particularly important for the victim. The parole eligibility date was close to the ‘half-way mark’ in the sentence. This did not reflect the significance of his guilty plea, remorse and cooperation and lack of criminal history. As such, the parole eligibility date was changed and set at the one-third mark in the sentence.

R v Wallace [2015] QCA 62 (21 April 2015) – Queensland Court of Appeal

‘Emotional abuse’ – ‘Following harassing, monitoring’ – ‘Fraud’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’ – ‘Where the offender is also a victim’

Charge/s: Six counts of fraud.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty at trial to six counts of fraud. See at [3]-[11]. It is unclear whether at the time of the offences, there was a current or lapsed protection order in place against the applicant’s ex-husband in favour of the applicant or other parties.

Issue/s: Whether the applicant could adduce fresh evidence not led at the original sentencing hearing.

Decision and Reasoning: The fresh evidence involved long term domestic violence that the applicant suffered from her ex-husband, including controlling behaviour such as taking the applicant’s phone and keys to prevent her from seeking help, threatening her children, stealing money from her business, and severe physical violence. It also included evidence from a psychiatrist detailing the effect of the abuse on her, to the extent that she did not fully understand the repercussions of her offending. This was found to be consistent with what has come to be known as the ‘battered person’s syndrome’. The appeal was allowed and the evidence was admitted. The head sentence was reduced by one year.

McMurdo P, (with whom Gotterson JA and Douglas J agreed) noted that lawyers acting for clients charged with criminal offences who claim to be the victim of domestic violence should take such claims very seriously to determine the relevance to their client’s alleged offending. They should then put such evidence before the primary court either as a defence, or in sentence mitigation.

See in particular the following remarks of McMurdo P at [37] -

'… The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm (a psychiatrist) explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. '

R v Davidson [2014] QCA 348 (19 December 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim credibility’

Charge/s: Assault occasioning bodily harm, grievous bodily harm.

Appeal Type: Appeal against conviction and sentence.

Facts: The offending involved an incident where the appellant asked the complainant to perform a sexual act on his male friend. The appellant also engaged in sexual activity with the friend. The case at trial was based on the complainant’s version of events, which included that the appellant kicked and punched the complainant (the appellant’s partner) for a long period. There was a history of domestic violence in the relationship. A domestic violence order was made some six years prior. The appellant had a long criminal history of similar offences, including a breach of a domestic violence order. However, there was no associated breach of a domestic violence order in this matter. The appellant was sentenced to five years imprisonment with parole eligibility set at 2.5 years.

Issue/s: Whether the failure to call new evidence from witnesses who challenged the complainant’s credibility established a miscarriage of justice.

Decision and Reasoning: The appeal was dismissed. The appellant contended specifically that the failure to call a particular witness established a miscarriage of justice and noted that his defence counsel did not explore the detail of the evidence in cross-examination. The Court rejected that argument – the failure of counsel to adduce this new evidence was justifiable as a strategic decision in the trial context to not risk other unfavourable evidence being admitted. The appeal against sentence was also dismissed.

R v Aplin [2014] QCA 332 (16 December 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘General deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Grievous Bodily Harm.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal and Torres Strait Islander man, caused catastrophic harm to the 21 year old complainant, with whom he had recently commenced a relationship. She was in a ‘vegetative state’ at the time of trial. He made full admissions to police. He sought to have evidence of these admissions excluded, which was refused. He then pleaded guilty. The applicant had a long history of domestic violence including multiple breaches of domestic violence orders. The sentencing judge mentioned the need to have regard to this history, as well as the extent of the injuries and the need for deterrence (see at [12]). He was sentenced to 9 years’ imprisonment and a ‘serious violent offence’ declaration was made.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The applicant submitted that various mitigating factors applied including that no weapon was involved, there was no premeditation, he attempted to administer aid, requested that an ambulance be called and there was a degree of provocation. He also submitted that the sentencing judge was in error in using a 10 year head sentence as a starting point. Fraser JA (with whom McMurdo P and Morrison JA agreed) held that there was nothing to indicate the primary judge overlooked these factors or the applicant’s disadvantaged background. Indeed, given the ‘seriousness of the offence, the catastrophic consequences for the complainant, and the applicant’s bad history of violent offending in broadly similar circumstances’ (See at [16]), it was open to the primary judge to attach relatively light weight to the mitigating factors. Furthermore, the trial judge was correct in using a previous decision with a head sentence of 10 years for ‘guidance’. While the Court acknowledged that this sentence was severe given the maximum penalty, the guilty plea, the offender’s age and other mitigating circumstances, it was justified for this ‘extreme example of domestic violence by a repeat offender’,([26]) where general deterrence and community protection were very relevant.

R v Warradoo [2014] QCA 299 (25 November 2014) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Hearsay’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his girlfriend. (See further at [3]-[7]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim. At trial, evidence relating to conversations with the deceased’s niece and mother which detailed instances of prior violence committed by the appellant was admitted. No warning was given by the trial judge as to the potential unreliability of this evidence as hearsay.

Issue/s: Whether the trial judge erred by not giving adequate warnings with respect to evidence admitted under section 93B of the Evidence Act 1977.

Decision and Reasoning: The appeal was dismissed. Holmes JA stated (at [8]) that section 93B operates to, ‘(render) the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable.’ It was held that a direction from the trial judge about the unreliability of the evidence as hearsay would not have been particularly helpful, and may have even been disadvantageous to the appellant. Also, the evidence was admissible under s 132B of the Evidence Act 1977 as evidence of the history of a domestic relationship.

R v RAP [2014] QCA 228 (11 September 2014) – Queensland Court of Appeal

‘Damaging property’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charge/s: Unlawful assault causing bodily harm, unlawfully damaging property.

Appeal Type: Appeal against sentence.

Facts: The appellant pleaded guilty to unlawfully assaulting his wife, causing her bodily harm and unlawfully damaging property. The appellant had a relevant criminal history involving a breach of a domestic violence order. However, this was effectively ignored by the sentencing judge. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of his wife. In mitigation, the sentencing judge considered a psychiatrist’s report indicating that at the time of the incident, the appellant was likely suffering from, ‘a major depressive episode and, probably, a form of alcohol dependence’. There was also a report from a psychologist who had treated the appellant before the offences and diagnosed him with, ‘an acute, moderate to severe adjustment disorder with mixed anxiety depressed moods at that time.’ A later review by that psychologist indicated he suffered a ‘chronic and mild adjustment disorder with anxiety’ and a year later ‘a mild borderline adjustment disorder’ was diagnosed. He was sentenced for the assault charge to two years imprisonment, suspended after eight months with an operational period of 2.5 years. He was sentenced to two months imprisonment for the property damage charge to be served concurrently.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The couple had previously separated, and the incident arose when the appellant returned to the matrimonial home. The complainant’s injuries were significant and she was in fear of her life during the attack. Wilson J (with whom McMurdo P and Fraser JA agreed) at [39] – [46] provided a useful summary of comparable cases. The Court held that a serious assault in the domestic context warrants imprisonment for two years or more. The suspension imposed was a correct application of the mitigating factors, and the serious nature of the violence.

R v Foster [2014] QCA 226 (9 September 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Following, harassing, monitoring’ – ‘Preliminary complaint’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Victim disclosure and consent’

Charge/s: Rape, Assault occasioning bodily harm, deprivation of liberty.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted at trial of two counts of the rape of his partner, after he was found to have penetrated the complainant with a hairbrush, an aerosol can and a water bottle. He pleaded guilty to other charges including assault occasioning bodily harm and deprivation of liberty. There was no domestic violence order in place.

Issue/s: Whether evidence of the complainant’s response in a state of distress, to the question of ‘Had you been raped?’ amounted to an admissible preliminary complaint of rape. The complainant had not directly answered the question but ‘looked sad’ and ‘slumped her shoulders, to look as if she was about to burst into tears and to look beaten’. (See at [33]).

Decision and Reasoning: The Court found that this amounted to a complaint, within the meaning of Section 4A of the Criminal Law (Sexual Offences) Act 1978. Importantly, Gotterson JA (with whom McMurdo P Morrison JA agreed) noted that an admissible complaint need not require a verbal response. In particular, ‘A meaningful response may be signalled by conduct other than speech. That conduct may include the absence of a verbal rejection of the proposition’. However, Gotterson JA noted that the acceptance could have been clearer, and this was a ‘borderline’ example of a complaint. Furthermore, it is not necessary for a preliminary complaint of rape to refer to any specific incidence of penetration. Simply stating, ‘I was raped’ is sufficient to amount to a preliminary complaint.

R v Reed [2014] QCA 207 (26 August 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Purpose of evidence’ – ‘Relationship evidence’

Charges: Assault occasioning bodily harm, murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the assault occasioning bodily harm and murder of his partner’s 16 month old child. See further at [6]-[17].

Issue: Whether the trial judge erred in admitting evidence of prior facial grazing injuries suffered by the child.

Decision and Reasoning: Henry J (with whom Gotterson JA and McMurdo P agreed) firstly held that this evidence was not inadmissible purely because of a possible innocent explanation for the injuries. His Honour considered all the non-fatal injuries on the child in their totality, and found that the probability that they occurred accidentally became too remote. The evidence was capable of supporting an inference (in combination with the other evidence) that the non-fatal injuries were the result of deliberate violence by the appellant. This evidence, of itself, was not indispensable to a finding of guilt – it assisted as ‘strands of a cable rather than as indispensable links in a chain’ (See at [39]). The evidence was also relevant to the proof of the charges as relationship evidence pursuant to 132B of the Evidence Act 1977. The trial judge correctly found that injuries can be probative of the history of a domestic relationship. It also potentially showed a propensity of the appellant to commit similar violence. However, the trial judge did not rule on this and in fact gave a warning against propensity reasoning. Notwithstanding, the trial judge did make an error of law in failing to sufficiently instruct the jury about the purpose of the evidence of the uncharged injuries, applying the High Court decision in Roach v The Queen [2011] HCA 12. The trial judge did tell the jury that the evidence could be used to show that the nature of the relationship was violent, but he did not go further to explain that the purpose of putting this history of violence before the jury was to provide an ‘informed context’ (See at [69] – [70]) for the jury’s consideration of the charges. Notwithstanding, the appeal was dismissed pursuant to the proviso.

R v HBL [2014] QCA 270 (24 October 2014) – Queensland Court of Appeal

‘Abduction’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Family law orders’ – ‘Mitigating factors’ – ‘Sentencing’

Charge/s: Abduction, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was in a long-term, intermittent relationship and had one child. His partner sought and obtained a domestic violence order (DVO) in 2011. In 2012, an order in the Federal Magistrates’ Court was made that the child was to live with the mother. Limited contact was allowed with the mother’s consent. The mother left the child at a friend’s house, whereupon the applicant arrived unannounced and took the child, drove away, and held the child for a period of time, in breach of the DVO. He made repeated calls stating he would not return the child if the child was to be handed back to the mother or her friend. The applicant had a long criminal history of over fourteen court appearances, including a previous breach of a child protection order (albeit towards the lower end of seriousness). The applicant pleaded guilty to the abduction and breach offences and was sentenced in the District Court to 4 years’ imprisonment for abduction. He was convicted but not further punished for the breach. The primary judge implicitly accepted the Crown’s submission that this conduct was in the worst category of offending.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. While the applicant had a long criminal history, Fraser JA (with whom Mullins J and Gotterson JA agreed), compared analogous decisions and highlighted factors which made them distinguishable. His Honour noted that the child was not unrelated or unknown, there was no sexual motivation and the taking was non-violent. As such, the Court held that this was not within the worst category of offending. Notwithstanding, the Court noted that such conduct (including the fact that the appellant was motivated to be with his son and breaching court orders) cannot be condoned and deterrence is important. As such, a custodial sentence was imposed but was reduced to 18 months’ imprisonment with immediate parole eligibility.

R v Francis [2014] QCA 258 (14 October 2014) – Queensland Court of Appeal

‘Arson’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Sentencing’ – ‘Separation’

Charge/s: Arson.

Appeal Type: Appeal against conviction and sentence.

Facts: The arson was targeted at the appellant’s ex-wife’s new partner’s mother’s car. The offence constituted a breach of a domestic violence order (See further at [3]-[18]).

Issue/s: Appeal against conviction: Whether the verdict was unreasonable and not supported by the evidence, and whether the appellant could adduce further evidence not led at trial.

Appeal against sentence: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. McMurdo P noted that while the case was circumstantial, it was strong, and a guilty verdict was open to the jury. The application to adduce further evidence was also dismissed. The court held that while an affidavit from the appellant’s former partner was somewhat inconsistent with her evidence at trial, there was no significant possibility that the jury would have acquitted him on this basis. However, the appeal against sentence was allowed, reducing the head sentence from 4.5 to 4 years. Defence counsel submitted that the sentence was excessive for arson of a car rather than a house, while the prosecution submitted that it was a flagrant breach of a domestic violence order and general deterrence was necessary for an arson committed as a jealous rage due to a relationship breakdown. McMurdo P held that the sentence was manifestly excessive. The trial judge did not take into account pre-sentence custody, and the appellant only had a minor criminal history prior to this offending.

R v Murray [2014] QCA 160 (18 July 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘Damaging property’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Recidivism’ – ‘Sentencing’ – ‘Victim’ – ‘Weapons’

Charge/s: Grievous bodily harm.

Appeal Type: Application for an extension of time to appeal against conviction.

Facts: The applicant, an aboriginal man with a dysfunctional background, pleaded guilty to the grievous bodily harm of his girlfriend. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. He ripped off a door handle with which he struck her on the head, then punched her and struck her with a frying pan, causing severe injuries.

Issue/s: Whether an extension of time should be granted on the basis that the applicant only pleaded guilty due to the strong urging of his lawyers, and that he was denied the right to present his defence.

Decision and Reasoning: The application was refused - the applicant was an adult, of sound mind who understood the charge and entered a guilty plea after obtaining legal advice. An application for leave to appeal against sentence was also refused. McMurdo P (Fraser JA and Morrison JA agreeing) held that notwithstanding that he told the complainant to go to hospital, he had failed to demonstrate compassion or insight into the injury that he had caused. He had a substantial history of domestic violence and this recidivism made the protection of future intimate partners important. This was a serious example of grievous bodily harm in the context of domestic violence. General deterrence and denunciation were key considerations. McMurdo P described his girlfriend as a ‘reluctant complainant’. However, this was not a mitigating factor. The only mitigating factors were his guilty plea and dysfunctional background.

R v Seijbel-Chocmingkwan [2014] QCA 119 (27 May 2014) – Queensland Court of Appeal

‘Attempted murder’ – ‘Attempted strangulation’ – ‘Dangerous operation of motor vehicle’ – ‘Denunciation’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Serious violent offender’

Charge/s: Attempted murder, dangerous operation of a motor vehicle.

Appeal Type: Appeal against sentence.

Facts: While on parole for assault offences committed against her daughter, the applicant drove into her former husband’s car twice. She then stabbed her husband’s new partner in the shoulder and attempted to strangle her. There was no domestic violence order in place. She pleaded guilty to attempted murder and dangerous operation of a motor vehicle, for which she was sentenced to ten years’ and 12 months’ imprisonment respectively.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Martin J agreed) at [41] – [79] provided a useful summary of past Court of Appeal authority regarding sentencing of attempted murder offences which have an element of domestic violence. The Court considered factors such as premeditation, cooperation with authorities, remorse, the gravity of the attack and prior convictions. (See full list at [79]). The applicant was also suffering from a mental disorder, namely an ‘adjustment disorder with anxious and depressed mood’. While this was a mitigating factor, the Court held that the original sentence did adequately recognise this and other mitigating features such as her efforts at rehabilitation by enrolling in study and other courses, which were correctly balanced with the need for denunciation and general deterrence.

R v Martin [2014] QCA 80 (14 April 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Consistency of sentence with other orders’ – ‘Costs’ – ‘Following, harassing, monitoring’ – ‘Stalking’ – ‘Systems abuse’ – ‘Using carriage service’

Charge/s: 41 offences, including stalking, 26 counts of breaches of domestic violence orders, two counts of assault occasioning bodily harm, five counts of using a carriage service to make a threat to kill and six counts of using a carriage service to menace or harass.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty in the Magistrates’ Court to all offences. The stalking was committed against the applicant’s ex-partner. A head sentence of two years imprisonment was imposed in the Magistrates’ Court, with all sentences to be served concurrently. The applicant was also placed on a domestic violence order in favour of his ex-partner for 5 years. The Magistrate made adverse findings in relation to the applicant’s offending, his lack of remorse and the real risk of him re-offending. Mitigating factors included pleas of guilty and completion of a domestic abuse program while in custody. His parole release date was set after he had served one third of the head sentence, taking into account pre-sentence custody.

Issue/s: Whether the remaining period on parole should be substituted with a suspended sentence, due to the comparative administrative ease of a suspended sentence in obtaining permission to leave the state.

Decision and Reasoning: Leave to appeal was refused. A previous appeal to the District Court was struck out due to the applicant’s uncooperative nature, and the many opportunities that were given to him through adjournments to allow him to appear personally in Court, as well as the primary judge’s finding of fact that he had misled the Court. The Court found that the primary judge acted appropriately.

R v MBY [2014] QCA 17 (18 February 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, maintaining a sexual relationship with a child under 16.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal man committed the offences against his daughter. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the applicant in favour of the victim or other parties. (See further at [6]-[20]).

Issue/s: Whether the primary judge failed to give appropriate weight to circumstances of deprivation in his upbringing, including the social and economic disadvantage associated with his Aboriginality and the physical, sexual and emotional abuse that he had suffered as a child. Another issue was whether the primary judge failed to have regard to the applicant’s rehabilitative prospects.

Decision and Reasoning: In dismissing the appeal, Morrison JA (Muir JA and Daubney J agreeing) discussed the relevance of the applicant’s Aboriginality in sentencing. See in particular at [60]-[73] where his Honour provides a detailed summary of relevant authority including the High Court decision of Munda v Western Australia [2013] HCA 38. Essentially, his Honour accepted that social, economic and other disadvantages (including alcohol and drug abuse) which may be related to an offender’s Aboriginality, should be taken into account as a mitigating factor in sentencing. Indeed, there is authority to suggest that when an Aboriginal offender is being sentenced, the Court should, ‘sentence (the offender) as leniently as the circumstances of his offence admitted’. (See R v Bell [1994] QCA 220). However, this cannot undermine individualised justice. That is, the deprived background of an Aboriginal and Torres Strait Islander offender may be given appropriate weight in sentence mitigation, but it cannot be given undue primacy. It cannot result in a punishment being imposed that does not reflect the gravity of the offending, or which does not pay sufficient regard to considerations such as specific and general deterrence, which are particularly important in domestic violence cases. The second ground of appeal, that the applicant’s rehabilitative prospects were not given enough weight was also dismissed.

R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) – Queensland Court of Appeal

‘Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay’

Charge/s: Grievous bodily harm.

Appeal Type: Appeal against a permanent stay of proceedings.

Facts: This decision was not directly related to domestic violence. However, it is relevant to situations where the Court is dealing with a breach of a domestic violence order and another criminal offence concurrently. The respondent was originally charged with public nuisance, which was dealt with summarily. However, following a formal statement made by the complainant to police and a medical opinion received, he was charged with grievous bodily harm (GBH). At trial, an application was made for a permanent stay on the basis of Section 16 of the Queensland Criminal Code, which provides that a person cannot be punished twice for the same act or omission. The application was granted, with the primary judge holding that the act which formed the basis of the GBH charge was the same act which formed the basis of the public nuisance charge.

Issue/s: Whether the trial judge was correct in granting the permanent stay based on the rule against double punishment.

Decision and Reasoning: The appeal was dismissed, with the Court applying the approach previously articulated in R v Gordon where Hanger CJ stated - “Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed.” Hanger CJ held that a punishable act of being in charge of a motor vehicle while under the influence of a substance was not the same as the punishable act of dangerous driving causing GBH with which the offender in that case was subsequently charged. In the present matter, the Court held that the punishable acts for which the respondent was convicted in the Magistrates Court included punches which landed on the complainant, causing harm. It therefore followed that s 16 would be violated if the respondent was to be punished a second time for those acts.

Prima facie, the same test would apply when considering whether a breach of a DVO constitutes the same act for which another criminal charge is based. However, it should be noted that there is uncertainty about the application of Section 138 of the Domestic and Family Violence Protection Act 2012 (Qld) in this context, particularly as to whether Section 138 allows double punishment. For further information, see pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book, which considers various District and Magistrates’ Court decisions and the summary of R v MKW [2014] QDC 300 (18 June 2014).

R v Bartram [2013] QCA 361 (6 December 2013) – Queensland Court of Appeal

‘Defence of dwelling’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Unlawful wounding’ – ‘Where the offender is also a victim’

Charge/s: Unlawful wounding.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for unlawful wounding. The offence was committed in the following circumstances: the appellant had obtained a domestic violence order against the complainant; the complainant had previously been convicted for breaches of that order; according to evidence at trial, the complainant kicked down a door in breach of the DVO and, on the appellant’s evidence, the complainant had threatened violence towards her on the previous evening. The jury was directed about self-defence, but was not directed about the possibility of the ‘defence of a dwelling defence’ under s 267 of the Queensland Criminal Code.

Issue/s: Whether the appellant was denied the possibility of an acquittal under 267 of the Queensland Criminal Code.

Decision and Reasoning: The appeal was upheld – Muir JA (with whom Gotterson JA and Daubney J agreed) held that there was ‘ample evidence’ that the complainant unlawfully entered and remained in the dwelling, which could support the elements of the defence. The offending occurred under the house, but his Honour held that the definition of ‘dwelling’ in s 1 of the Code was broad enough to encompass underneath the house. As such, a retrial was ordered.

R v Brennan [2013] QCA 316 (25 October 2013) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Murder (two counts).

Appeal Type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The appellant was convicted of murdering his estranged wife and her daughter in their home. Prior to the killings, the appellant made threats to his wife and to witnesses. These threats occurred in person and over the phone, resulting in a domestic violence order being served and two charges of using a carriage service to make threats. Several witnesses testified that the appellant made threatening remarks to his wife at the hearing for these charges. He was sentenced to life imprisonment on both counts of murder, with a 22 year non-parole period ordered, which was two years above the statutory minimum. The crime was also in breach of a domestic violence order in place to safeguard his wife.

Issue/s: Whether the circumstances of the killings warranted the non-parole period to be extended beyond the 20 year statutory minimum, so as to make the sentence manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. In the appellant’s favour, the killing was not drawn out, there was no prolonged suffering and there was minimal planning involved. On the other hand, he killed not only his estranged wife, but a defenceless 14 year old girl in defiance of a domestic violence order which was intended for his wife’s protection. Also, the appellant displayed no remorse and pleaded not guilty which had made the process agonising for those affected. These factors warranted a strong element of denunciation and vindication for the victims in the sentence. The appeal against conviction was also dismissed.

R v Postchild [2013] QCA 227 (20 August 2013) – Queensland Court of Appeal

‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape

Appeal Type: Appeal against sentence.

Facts: The applicant was convicted of the rape of his girlfriend and was sentenced to six years’ imprisonment. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. The applicant had an extensive criminal history, consisting of street and property offences, as well as a previous conviction for carnal knowledge of a 13 year old girl. He had previously breached a reporting condition associated with this conviction. He committed the rape while on parole for unrelated offending. The primary judge described the rape as a ‘brutal act’, and that the applicant had treated his girlfriend as, ‘an object for his own sexual gratification and had had no regard for her feelings’ (See at [15]).

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed by majority. The Chief Justice, (with whom Gotterson JA agreed) held that the sentence was appropriate, and upheld the trial judge’s findings in relation to the brutality of the act.

However, Holmes JA dissented and was of the view that the sentence should be reduced to 5 years with the non-parole period shortened. Her Honour’s judgment contains very useful summaries of all comparable cases, (see [17]-[32]). Holmes JA noted factors including that this was a single incident of a short duration, and was not a ‘protracted exercise in humiliation’ (at [33]). There was no forced entry or weapons used. Her Honour also noted that the, ‘offence did not occur in a context of fear or intimidation’, as the relationship was still on foot. Holmes JA was of the view that the nature of the relationship made these circumstances distinguishable from rapes performed by strangers (See at [34]). It was also noted that the victim was, ‘a strong minded young woman who was left humiliated and angry by what occurred, but not terrified’ and, ‘There was no evidence of lasting psychological harm’.

R v Susec [2013] QCA 77 (12 April 2013) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury for the murder of his wife, and sentenced to life imprisonment (see further at [5]-[25]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s:

1.

Whether the trial judge should have admitted evidence of a previous incident of the appellant sharpening a knife in the presence of the deceased and two witnesses.

2.

Whether evidence of the victim’s statement that she believed her husband was going to kill her was admissible.

3.

Whether evidence of a conversation between the deceased and a co-worker, which was initially held to be hearsay evidence because it was too vague and unreliable but later inadvertently admitted during the questioning of the co-worker at trial resulted in a miscarriage of justice.

4.

Whether a conclusion that the appellant’s post-offence conduct involved inflicting wounds on himself, putting pepper in his own eyes and exaggerating the seriousness of his condition was open on the evidence.

Decision and Reasoning:

1.

Gotterson JA (with whom McMurdo P and Muir JA agreed) held that such evidence was admissible under s 132B of the Evidence Act 1977. Its probative force was not outweighed by its potential prejudice to the accused. It was relevant to the state of the relationship, as well as to self-defence and provocation. It did have subjective elements, (such as the witnesses’ descriptions of their emotions during the incident), but this was not such as to enliven the s 130 discretion to exclude it, and the trial judge gave a sufficiently clear warning against its use as propensity evidence.

2.

The Court held that this evidence was admissible. The deceased’s fear of the appellant was relevant to the jury’s consideration of whether the deceased initiated an assault or provoked the attack.

3.

While the Court held that this evidence should not have been admitted, it did not amount to a miscarriage of justice so this ground was dismissed.

4.

The Court held that this conclusion was clearly open on the evidence (see at [70]).

R v James [2012] QCA 256 (24 September2012) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Sentencing’

Charge/s: Breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The complainant (the appellant’s de facto partner) was receiving treatment at a hospital necessitated by an earlier assault by the appellant. The appellant then waited outside a toilet door at the hospital and punched her in the face which caused pain, discomfort and swelling. He was sentenced to 9 months imprisonment for contravening a domestic violence order. He had a long criminal history including six prior breaches of domestic violence orders and convictions for other offences.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Leave to appeal was refused, with the Court upholding the 9 month sentence. The maximum penalty for breaching a domestic violence order applicable at the time was 12 months imprisonment. This was later increased to two years (three years if the accused has prior convictions). Also, Henry J observed that there ought not exist an expectation that a one third discount to the head sentence will be applied where there is a plea of guilty, although such an outcome may be common (Holmes JA and McMurdo P agreed). McMurdo P (Holmes JA agreed) found that a further exacerbating feature was that the offence occurred in a hospital where the victim and other patients should be entitled to freedom from exposure to such violence.

R v Murgha [2012] QCA 255 (24 September 2012) – Queensland Court of Appeal

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim’

Charge/s: Grievous bodily harm, breach of domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The applicant pleaded guilty to doing grievous bodily harm (GBH) to his de facto partner and breaching a domestic violence order. The offending was committed during the operational period of six suspended sentences. It involved the applicant throwing a knife at his partner who was pregnant. The knife became embedded in her skull. He was sentenced to three years’ imprisonment for the GBH offence and was convicted but not further punished for the breach offence.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: McMurdo P (Holmes JA and Henry J agreeing) dismissed the appeal and held that the sentence was appropriate. Mitigating factors included his remorse and corporation with police, his lack of similar criminal history, good rehabilitation prospects and his good standing in the community. The complainant also tendered a letter stating that: she wanted their child to grow up knowing their father; they planned to reconcile and that she found it hard to cope as a single parent. Notwithstanding, the sentencing judge correctly imposed a deterrent sentence. The primary judge noted that ‘the use of knives in domestic disputes on Palm Island was all too common’, which required a deterrent sentence. Other relevant factors included the fact the offence constituted a breach of a DVO and occurred while the applicant was subject to suspended prison sentences.

R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223 (24 August 2012) – Queensland Court of Appeal

‘Exposing a child’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Manslaughter.

Appeal type: Appeal against sentence.

Facts: The respondent pleaded guilty to the manslaughter of his partner. He was in a long term relationship with the deceased, with whom he had three young children. He was a heavy cannabis user. In the weeks leading up to the killing, the deceased had confided to others about problems in the relationship. The respondent believed the deceased was having an affair and was upset as the deceased’s sister owed him $15 000. He was concerned the deceased was preparing to leave him and take his children – he claimed that she was ‘messing with my head’ (See at [10]). On the day of the killing, the respondent spoke to his parents who both encouraged him to seek help from a counsellor or psychiatrist. He then strangled the deceased until she was unconscious in the presence of the children. After moving the children to another room, he stabbed the deceased twice in the chest, killing her. He also stabbed himself but the injuries were not life threatening. After being declared fit to stand trial, but of diminished responsibility (under section 304A of the Queensland Criminal Code) by the Mental Health Court, he pleaded guilty to manslaughter. The psychiatrist stated that the respondent, ‘suffered from a personality disorder with paranoid traits.’ This, as well as his drug abuse and the viciousness of the killing suggested that his condition was likely to endure after being released from custody (see at [29]). However, gradual improvement may be expected with regular treatment (See at [15]). He had no relevant criminal history. He was sentenced to nine years’ imprisonment. Parole release would depend on his illness and progress of rehabilitation while in prison.

Issue/s: Whether the sentence was manifestly inadequate and whether the sentencing judge should have made a ‘serious violent offence’ declaration.

Decision and Reasoning: The appeal was dismissed. McMurdo P (with whom Muir JA and Gotterson JA agreed) held that as deterrence and denunciation were of less importance in this case due to the limited moral culpability of the respondent (because of his mental illness), the primary purposes of sentencing were the protection of the Queensland community and punishment of the offender. However, the Court found that a nine year sentence with no serious violent offence declaration and no parole eligibility date was within range for a spousal manslaughter based on diminished responsibility. There was a plea of guilty, no evidence of further danger to the community and evidence of remorse. A recovery was not certain, but the respondent was responding positively to medication and treatment. Also, the fact that he strangled the deceased in front of the children was an aggravating feature, but this had to be considered in the context of diminished responsibility which reduced his moral culpability for the crime.

R v Hughes [2012] QCA 208 (14 August 2012) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of murdering her de facto partner. There was a history of domestic violence between the appellant and the deceased and multiple domestic violence orders were taken out against each other on separate occasions. (See further at [5]-[49]).

Issue/s: Whether the primary judge erred by admitting evidence of statements made by the deceased to various witnesses that he suspected the appellant had drugged him and whether the verdict was unreasonable having regard to the evidence.

Decision and Reasoning: Both grounds of appeal were dismissed. The appellant submitted that the statements made by the deceased were not admissible because no relevant inference could be drawn from them, so they were hearsay statements and therefore inadmissible. This submission was rejected – the Court held that unlike in R v Lester [2008] QCA 354, the statements were not ‘reports of statements made to (the deceased) by others’. Instead, they were statements about the deceased’s own physical sensations after falling asleep in an unusual manner, and came after an episode of domestic violence between the appellant and the deceased. Such evidence was relevant to the ‘deceased’s relationship with the appellant, their mutual dealings and their attitudes for each other’, and to whether the appellant drugged the deceased (See at [64]). As such, it was admissible under section 93B of the Evidence Act 1977 as an exception to the hearsay rule. The other ground of appeal that the verdict was unreasonable having regard to the evidence was also dismissed.

R v Amery [2011] QCA 383 (23 December 2011) – Queensland Court of Appeal

‘Malicious act with intent’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Pre-sentence custody’ – ‘Sentencing’

Charge/s: Malicious act with intent.

Appeal Type: Appeal against sentence.

Facts: In breach of a domestic violence order made that morning, the appellant returned to his de facto partner’s house and hit her head twice with a sledgehammer while she was sleeping, causing substantial injuries. The applicant pleaded guilty to a malicious act with intent and was sentenced to 8 years’ imprisonment, with no parole eligibility date set. No adjustment of the sentence was made for time already served in pre-sentence custody.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The Court noted that the head sentence was not outside the permissible range. The offending was very serious, was not a spontaneous response, and was committed in breach of the DVO. Also, he had a serious criminal history, including a similar breach of a domestic violence order. However, the trial judge erred in not adjusting the sentence for pre-sentence custody and not imposing a parole eligibility date. As such, also taking into account the (albeit late) plea of guilty, the sentence was reduced to seven years, seven months’ imprisonment, with the appellant becoming eligible for parole after three years.

R v Rowe [2011] QCA 372 (16 December 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Burglary with violence’ – ‘Common assault’ – ‘Damaging property’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Wilful damage’

Charge/s: Stalking with violence, burglary with violence, assault occasioning bodily harm, common assault and wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The appellant had been in a relationship with the complainant for 6 years and had one child. The relationship ended, at which point the stalking began via telephone and text messages. There had been some conflict in the relationship about the care of the child. He broke into her home, demanded to see her phone and punched her on the head multiple times. He pushed a lighted cigarette on her leg, causing burns. He threatened to kill her. He tackled her to the ground to prevent her from seeking help and punched her again multiple times. He drove her to the hospital after she had cleaned up at his request. He yelled and threatened her while in the car, drove dangerously, and backhanded her to the side of her face. All of this occurred in front of their two year old child. Once the complainant was released from hospital he attended her workplace and caused significant damage to her car. He had a criminal history, including previous break and enter and assault occasioning bodily harm offences. The sentencing judge noted that the stalking was not prolonged, but it was very intense and violent. It was also noted that the child and the complainant must have been terrified.

The applicant pleaded guilty to the above offences, and was sentenced to three years’ imprisonment for stalking with violence, two years’ imprisonment for burglary with violence and assault occasioning bodily harm and 12 months’ imprisonment for common assault and wilful damage. The sentences were to be served concurrently. He was on parole at the time for a prior violent offence. This resulted in a head sentence of three years which was cumulative on an existing term of three years imprisonment, with parole eligibility set at one year after the cumulative term had been served.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that as the head sentence was reduced for the totality principle, the sentencing judge must have used a starting point of over three years which was not consistent with the comparable authorities. This was rejected. While the offending was short, it was intense, and was accompanied by actual and threatened violence, in the presence of a terrified child. The applicant’s stalking was more serious than in any of the relevant comparable authorities, and a head sentence of three years was appropriate given the circumstances of the offending and the appellant’s history, including that he was on parole for prior offences. The parole eligibility date was also found to be appropriate, given the offender was already subject to an existing term of imprisonment.

R v. Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Deterrence’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Social abuse’ – ‘Verbal abuse’ – ‘Wounding’

Charge/s: Seven counts of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and various summary offences.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to the above charges. The offending included 8 episodes of domestic violence over a three year period, involving severe physical abuse such as punching, cutting off the tip of the victim’s finger, choking, wrestling, smashing objects on the victim’s head and verbal abuse. There were lasting physical impacts on the victim including nerve injuries, loss of sensation to her finger-tip and depression and anxiety. He was sentenced for the unlawful wounding offence to 3 years’ imprisonment, suspended after 741 days (the period already served) with an operational period of 5 years. He was sentenced to 2 years imprisonment for the remaining counts.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld, with the Court holding that the original sentence was manifestly inadequate. The Court noted that when concurrent sentences are imposed, it is important to ensure that the primary term adequately reflects the nature of each individual feature of the offending. This was not reflected in the trial judge’s sentence. The mitigating factors were not particularly powerful. For example, the absence of any prior history of violence was outweighed by the prolonged duration of the offences. The fact that the respondent was not subject to a domestic violence order was not a mitigating factor but merely a distinguishing feature from analogous cases. The Court noted that the original sentence should have been in the range of six to eight years. However, given that the defendant had commenced rehabilitation, it was deemed that imposing such a sentence on appeal would be inappropriate. Also, the respondent had no prior history of violence, and was not subject to any court order at the time of the offending. Nevertheless, the sentence was increased to 5 years with the same suspension period. Probation was added for another count.

See in particular the useful remarks of McMurdo P at [53], regarding the considerations the courts should take into account for sentencing domestic violence offences – ‘The dreadful effects of prolonged episodes of domestic violence are notorious…Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’

R v McMullen [2011] QCA 153 (1 July 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Threatening violence’

Charge/s: Assault occasioning bodily harm, deprivation of liberty, rape and threatening violence.

Appeal Type: Appeal against conviction.

Facts: The offences were committed against the appellant’s de facto partner. There was a current domestic violence order in place. The complainant alleged the appellant breached that order the night before he raped her.

Issue/s: Whether the primary judge erred in admitting evidence of the appellant’s previous history of domestic violence and drug use, as well as other discreditable conduct.

Decision and Reasoning: McMurdo P (with whom Cullinane J and Jones J agreed) held that the evidence of prior domestic violence was admissible to assist the jury in understanding the nature of their relationship, and was particularly relevant to the rape charges, where the lack of consent was the critical issue. However, her Honour noted that its admissibility remained ‘extraordinary and exceptional’ (at [83]) and warranted careful directions from the trial judge to warn the jury against propensity reasoning, applying the High Court decision of Roach v The Queen [2011] HCA 12. See in particular at [84], where her Honour referenced a model direction from the Queensland Supreme and District Court Bench Book. In this case, while the trial judge went ‘part way’ in warning the jury about the limits of the use of the evidence, he did not specifically give a warning against propensity reasoning. This amounted to an error of law. However, the appeal was dismissed pursuant to the proviso, with McMurdo P taking into account the ‘discerning’ verdicts of the jury on each count and the fact that defence counsel did not ask for a redirection during the trial.

R v Harold [2011] QCA 99 (17 May 2011) – Queensland Court of Appeal

‘Character’ – ‘Criminal history’ – ‘Cumulation of sentence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Manslaughter, assault occasioning bodily harm, various summary offences.

Appeal Type: Application for leave to appeal against sentence.

Facts: The circumstances of the offending included the applicant stabbing his de facto partner multiple times and striking her with a cricket bat (See further at [3]-[9]). The applicant had a substantial and relevant criminal history of violence against the deceased committed over a 10 year period. He was convicted a number of times for severe assaults (both common assaults and assaults occasioning bodily harm) on the deceased, including punching her and hitting her over the head with an iron bar. He had previously been the subject of multiple domestic violence orders in her favour, which he had often breached. The applicant was convicted for the manslaughter of the deceased and was sentenced to 14 years’ imprisonment, including 12 years for manslaughter. The extra two years took into account 9 summary offences and two counts of assault occasioning bodily harm to which he had pleaded guilty.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Martin J (with whom Chesterman JA and White JA agreed) held that the sentencing judge correctly made the 2 year sentence for the two charges of assault occasioning bodily harm cumulative because they were separate offences committed at different times, even though they were committed in a 10 year course of conduct. The total effective sentence was appropriate and within range. The sentencing judge observed this was a repetitive and prolonged attack with a knife making it a serious case of manslaughter.

R v Murray [2010] QCA 266 (8 October 2010) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Aggravated stalking’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Serious violent offence declaration’ – ‘Stealing’ – ‘Threatening to enter premises with intent to intimidate’

Charge/s: Aggravated stalking (two counts), assault occasioning bodily harm, stealing, grievous bodily harm with intent, breach of domestic violence order (two counts).

Appeal Type: Application for leave to appeal against sentence.

Facts: The offending involved continued harassment of the complainant (the former partner of the applicant), culminating in the charge of grievous bodily harm with intent. The applicant broke into the complainant’s home which she shared with her new partner and children. He hit her on the head with a frying pan, causing her to fall to the ground. He held a knife against her throat, tied her wrists and ankles and dragged her into the car. She then threw herself out of the car, at which point the applicant stabbed her in the left side then on her right side. He had a relevant criminal history, including prior offences of violence as well as a breach of a domestic violence order. Two of these offences involved violence against his mother as well as a former partner. Two psychiatric reports detailing the mental issues suffered by the applicant were put before the sentencing judge. The total effective sentence imposed at trial was 8 years’ imprisonment. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the sentencing judge erred in not giving reasons for making a ‘serious violent offence’ declaration.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused.

1.

In relation to the serious violence offence declaration, the applicant’s counsel at trial conceded that it would be impossible to submit that the declaration should not be made. The sentencing judge referred to this concession, in applying the ‘integrated approach to sentencing’ which is required in cases where a serious violent offence declaration is appropriate (See at [22]-[23]).

2.

Counsel for the applicant contended that 8 years’ imprisonment was manifestly excessive, as it was outside of the range established by comparable authorities and it did not have regard to the psychiatric problems suffered by the applicant. This argument was dismissed, with Cullinane J (Fraser JA and Chesterman JA agreeing) finding that eight years was not outside the permissible range. The mental health issues were considered at trial, as the sentencing judge expressly referred to them.

R v Clark [2009] QCA 2 (6 February 2009) – Queensland Court of Appeal

‘Attempted murder’ – ‘Circumstantial evidence’ – ‘Damaging property’ – ‘Directions and warnings for/to jury’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Attempted Murder.

Appeal Type: Appeal against conviction and sentence.

Facts: The appellant was convicted for the attempted murder of his former wife. There were cross domestic violence orders in place against each other. He was sentenced at trial to 16 years’ imprisonment. The case turned on purely circumstantial evidence. See further at [3]-[38].

Issue/s: Whether the trial judge made errors by -

1.

Not issuing a Shepherd v R [1990] HCA 56 direction which deals with the how the jury must use pieces of evidence individually.

2.

Allowing the jury to consider evidence of the history of the relationship between the parties.

The other issue was whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. The Court noted that in a case turning on circumstantial evidence alone, it is not necessary that every intermediate conclusion of fact made by the jury be proven beyond reasonable doubt. There may be some instances, as McMurdo P observed (at [40]) if it is necessary to ‘reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt’. However, generally, only the offence as a whole needs to be proven beyond reasonable doubt. In regards to the relationship evidence, the primary judge directed the jury to the effect that such evidence was not directly relevant to the alleged offence, but only to put the relationship between the parties in context. The Court held that this direction was adequate. The Court also refused leave to appeal against sentence, finding that the premediated nature of the offending and the lack of mitigating factors meant that this was at the highest end of the scale of attempted murders.

R v Chong; ex parte Attorney-General of Queensland [2008] QCA 22 (22 February 2008) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Breastfeeding mother’ – ‘Exceptional circumstances’ – ‘Hardship on children’ – ‘Mitigating factors’ – ‘Orders affecting children’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Unlawful wounding’

Charge/s: Unlawful wounding, breach of intensive correction order.

Appeal Type: Appeal against sentence.

Facts: The complainant was the respondent’s mother. They lived on the Aboriginal and Torres Strait Islander community of Mornington Island. Following an argument, the respondent stabbed the complainant three times, causing no lasting injuries. The respondent was sentenced to two and a half years’ imprisonment with immediate court ordered parole for the wounding offence.

Issue/s: Whether the sentence was manifestly inadequate, particularly in relation to the order of immediate parole.

Decision and Reasoning: The appeal was dismissed. The respondent had a substantial and relevant criminal history. In mitigation, the respondent had performed well on the intensive correction order, had pleaded guilty and was committed to looking after her seven children, including breastfeeding a baby and ensuring that those of school age attend school. She was an Aboriginal and Torres Strait Islander woman who had suffered abuse as a child. Atkinson J (with whom Keane JA and Fraser JA agreed) held that the head sentence was not manifestly inadequate. In considering whether the immediate parole order was appropriate, her Honour considered various factors, including the respondent’s disadvantage associated with her Aboriginality. Her Honour observed that, ‘The fact that the respondent is an Aboriginal and Torres Strait Islander woman living on Mornington Island is relevant to the question of the effect on her family’. (See at [36]). While the Court noted that the effect on an offender’s children can only be one relevant circumstance in determining sentence, the Court considered that exceptional circumstances were present. The respondent was a breastfeeding mother. Imprisonment would necessitate moving to the mainland, which would remove any practical means of maintaining the breastfeeding of the baby and personal contact with her other children. Her Honour quoted various secondary sources which discuss the substantial effect of incarceration on families, particularly on Aboriginal and Torres Strait Islander families. (See at [37] – [42]). The original sentence sufficiently incorporated deterrent and punitive elements, while the immediate parole allowed for rehabilitation.

R v Sauvao [2006] QCA 331 (1 September 2006) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Community protection’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Serious violent offence declaration’

Charge/s: Attempted murder, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence order. The couple had separated. The complainant initially obtained an apprehended violence order in 2003 in New South Wales, which was then registered in Queensland upon moving to that state. In May 2005, at a railway station, the applicant attempted to stab the complainant with a small knife. The knife snapped on the complainant’s jacket, causing her no harm. He continued to punch and kick her, and hit her head into a chair and a pole. He was then stopped by bystanders. He admitted that if they had not intervened he would have persevered. He surrendered to police and made full admissions. He gave a full account and added details to his disadvantage. It is unlikely without his interview that anyone would have known about the use of the knife (the complainant herself was not aware of it), or about the applicant’s intention to kill as opposed to assault the complainant. The applicant’s only relevant criminal history was a breach of the domestic violence order in the preceding year, when he attended the house of the complainant. The applicant was sentenced to nine years’ imprisonment. A ‘serious violent offence’ (SVO) declaration was made.

Issue/s: Whether the ‘serious violent offence’ declaration should have been made.

Decision and Reasoning: Firstly, the Court held that the head sentence was ‘unremarkable’. However, Holmes JA (with whom McPherson JA and Douglas J agreed) upheld the appeal. The applicant showed profound and sincere remorse and the case involved ‘unusual’ mitigating factors. The Court found the SVO declaration should not have been made for two reasons. Firstly, there was nothing in the offence itself in terms of, ‘duration, its force or its consequences which took it out of the ordinary run of cases’. The offender had almost no criminal history. There was no element of community protection as the likelihood of repetition was remote. Secondly, he had cooperated utterly. However, the only sentence reduction he received for this cooperation and remorse was 9 and a half months (the difference between the nine year sentence with an SVO declaration, and a 10 year sentence). This was a minor reduction in the circumstances and made the SVO declaration manifestly excessive.

R v HAC [2006] QCA 291 (11 August 2006) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Torture’ – ‘Verbal abuse’

Charge/s: Torture, assault occasioning bodily harm, rape.

Appeal Type: Appeal against conviction.

Facts: The appellant held a longstanding belief in his wife’s infidelity. The acts relied on to constitute the offence of torture included abusive and humiliating acts such as: insisting that the children refer to the complainant as a slut or a whore rather than Mum, not allowing the children to show physical or verbal affection to her; forcing her to chew and swallow chillies in the appellant’s presence and forcing her to lick her vomit up; insisting that she perform sexual acts on his friends for money; insisting that she sleep outside the house without amenities; demanding that she drink his urine and attempting to persuade her to engage in a sexual act with a dog. The assault occasioning bodily harm conviction occurred when the appellant broke the complainant’s arm after she denied having sexual dealings with a neighbour. The rape conviction involved the appellant inserting the wooden handle of a ‘gaff hook’ into the complainant’s vagina. He was sentenced to 10 years’ imprisonment for torture, two years’ imprisonment for assault occasioning bodily harm and five years’ imprisonment for rape. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the directions given by the trial judge in respect of torture were inadequate.

2.

Whether the proviso should be applied.

Decision and Reasoning: The appeal was dismissed in respect of issue 2.

1.

It was accepted that the directions given by the trial judge were not consistent with McMurdo P’s judgment in R v LM [2004] QCA 192 which requires that when more than one act in a series is relied upon to prove the elements of torture, the jury must be unanimously satisfied beyond reasonable doubt that the appellant committed at least one of the particularised acts. In this case, the trial judge’s directions, ‘effectively permitted the jury to convict of torture even though the jury might not have been unanimously satisfied as to which act or series of acts were intentionally inflicted to cause severe pain or suffering’ (see at [2]).

2.

The Court held that notwithstanding this error, no substantial miscarriage of justice occurred and the proviso should be applied. Jerrard JA (Holmes JA agreeing) held that it was clear which acts amounted to torture and this evidence was substantiated by unchallenged evidence from the complainant’s daughters. Williams JA (Holmes JA agreeing) held (despite some initial concerns with applying the proviso) – ‘The offence of torture was clearly established beyond reasonable doubt by the evidence; the relevant particulars being the conduct sworn to by the complainant, supported by the evidence of her daughters, and admitted by the appellant’ (see at [11]).

R v Friday [2005] QCA 440 (30 November 2005) – Queensland Court of Appeal

‘Physical violence and harm’ – ‘Sentencing’ – ‘Wounding’

Charge/s: Wounding.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant were in a de facto relationship. While intoxicated early in the morning, an argument started after the applicant alleged that she was seeing other men. The applicant got off the bed then stabbed her through the upper arm and side of the chest. The wound did not damage internal organs, but required deep and superficial stiches. He had a criminal history, consisting of various violent offences, and one offence of breaking and entering and committing an indictable offence. He pleaded guilty to wounding and was sentenced to three years’ imprisonment with no recommendation for post-prison community based released. This sentence was made cumulative upon an existing six month sentence that he was already serving. The sentencing judge referred to the need to deter others from obtaining a knife and stabbing someone just because of an argument. This conduct was prevalent on Palm Island, where the offence occurred. He was also sentenced for breaches of an intensive correction order and a domestic violence order.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The applicant submitted that if the sentencing judge had moderated the sentence for the mitigating factors (such as the guilty plea, the applicant’s age and an apology made to the complainant), then the starting point must have been four years, which is outside the permissible range of sentences for this type of offence. The Court agreed and suspended the three year sentence after nine months, with an operational period of three years.

R v Collins [2005] QCA 172 (27 May 2005) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm.

Appeal type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The applicant was convicted by a jury for the grievous bodily harm of his then partner. The applicant beat his then partner so severely that she suffered a ‘life-threatening subdural haematoma’ (See further at [2]). He was severely intoxicated at the time of the offence. The offence was committed in breach of a domestic violence order. The appellant also pleaded guilty to several other violent offences. These offences demonstrated a history of domestic violence committed against his then partner. He was sentenced to four years’ imprisonment, suspended after two years with an operational period of five years. This sentence for grievous bodily harm was ‘intended to reflect the applicant's criminality for all the offences to which he had pleaded guilty’ (See at [27]).

Issue/s:

1.

Whether the guilty verdict was unreasonable.

2.

Whether the sentence was manifestly excessive.

Decision and reasoning:

1.

The appeal against conviction was dismissed – see at [21]-[25].

Leave to appeal was refused. The applicant did not take his partner to hospital for treatment until one day after the injuries were sustained, which showed a complete disregard for her welfare. The fact that the offence was committed in breach of a domestic violence order was described as a ‘matter of concern’ (see at [31]). The applicant showed no remorse for the life-threatening injuries he inflicted on his partner, who is the mother of at least one of his children. Even though he had no memory of inflicting the injuries as a result of his intoxication, the Court stated that with ‘sober hindsight’ he ought to have been shocked at the injuries he caused (See at [31]). Deterrence was an important factor for the safety of the complainant as well as the interests of the community. The Court held at [37] that the applicant’s small prospects of rehabilitation were not such as to warrant a more lenient approach. The sentence for grievous bodily harm, when considered in isolation was not excessive. Therefore, considering the fact that it was a sentence intended to take into account all of the offending behaviour, it was actually at the lower end of the range of appropriate sentences.

R v Fairbrother; ex parte AG (Qld) [2005] QCA 105 (15 April 2005) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Denunciation’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against sentence.

Facts: Following being released from police custody subject to conditions imposed under the then Domestic Violence (Family Protection) Act 1989 that the respondent not have contact with the complainant (his domestic partner) and that he not go to her residence, the respondent returned to her home and threw boiling water onto her twice. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. He pleaded guilty on the second day of trial and was sentenced to 2.5 years imprisonment for assault occasioning bodily harm, wholly suspended with an operational period of four years.

Issue/s: Whether the full suspension of the sentence made it manifestly inadequate.

Decision and Reasoning: The appeal was dismissed. The injuries caused the complainant severe pain over a long period and also caused some mental health issues. The respondent had some history of domestic violence. This was a ‘reasonably bad’ (at [21]) example of the offence which occurred hours after the appellant had been removed from the complainant’s home by police. However, mitigating factors included his guilty plea, his good work history and his efforts at rehabilitation. Furthermore, the respondent was not sentenced at trial for deliberately pouring boiling water on the complainant. If it had been deliberate, he would have been sentenced to actual imprisonment of at least 12 months before suspension. This was nevertheless a ‘serious example of domestic violence’ with the sentence imposed at trial being a correspondingly ‘substantial penalty’ (See at [24]).

See in particular McMurdo P’s (Jerrard JA and Cullinane J agreeing) comments on the impacts of domestic violence and the approach to sentencing at [23] –

‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.’

R v Gill; ex parte Attorney-General of Queensland [2004] QCA 139 (30 April 2004) – Queensland Court of Appeal

‘Attempted rape’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking’

Charge/s: Aggravated stalking, attempted rape.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to aggravated stalking and attempted rape and was sentenced to two years and three years’ imprisonment respectively, to be served concurrently. There was no domestic violence order in place at the time of the offence. The Court recommended consideration of post-prison community based release after 12 months (See further at [2]-[3]).

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was dismissed by majority. Holmes J (with whom Davies JA agreed) discussed R v Stephens [1994] QCA 507 and noted that it is not correct to approach rapes occurring in an existing relationship more leniently. However, this is not to say that that in the circumstances of a particular case, a sexual assault committed by a current or former partner will necessarily be equivalent to a sexual assault committed by a stranger. In comparing this case to R v McNamara, her Honour stated at [16], ‘I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.’ As such, also taking into account the respondent’s plea of guilty and comparable cases, her Honour held that the sentence, while ‘lenient’ ([21]), was adequate. However, de Jersey CJ dissented. His Honour also discussed Stephens. His view was that the statement in Stephens about an ‘honest but unreasonable’ mistake as to consent in the relationship context as a mitigating factor did not apply. The complainant had made her lack of consent clearly known and had previously shown reluctance to let the respondent into the house. His Honour stated, ‘This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded’ (See at [5]). His Honour then went onto consider the respondent’s serious and relevant criminal history, including stalking offences as well as breaches of domestic violence orders (on four occasions over an eight year period with other partners). As such, having regard to this context, his view was that the sentence for attempted rape should be increased to four and a half years and that the order for community release should be removed. Nevertheless, he was in dissent and the appeal was dismissed.

R v AN [2003] QCA 349 (11 August 2003) – Queensland Court of Appeal

‘Cumulative sentencing’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Totality’

Charge/s: Stalking with circumstances of aggravation.

Appeal Type: Appeal against sentence.

Facts: The applicant met the complainant while on remand and they lived together for a short period until the relationship broke down. The stalking occurred over the phone and included death threats and threats to the complainant’s children. There was a psychologist’s report before the trial judge, indicating that the applicant presented with a borderline personality disorder and would not be able to alter his behaviour without counselling. The applicant had a long criminal history of stalking, stealing, breaches of domestic violence orders and other offences. The applicant pleaded guilty to the stalking of the complainant with circumstances of aggravation and was sentenced to three years’ imprisonment.

Issue/s: Whether the three year sentence offended the totality principle and was therefore manifestly excessive.

Decision and Reasoning: The Court allowed the appeal, reducing the sentence to two years. The effect of the conviction was that an existing suspended sentence for other offences was activated. The applicant had also been sentenced previously for common assault and wilful damage charges. The effect of this was that the applicant was liable to four years and two months imprisonment, becoming eligible for parole at eighteen months. There was no error in the cumulative term being imposed. However, the Court did conclude that the three year term offended the totality principle. In citing comparable cases, the Court found that a three year sentence is at the top of the range for offending of this nature. Lesser sentences were imposed in comparable cases which involved more serious stalking in the domestic context, such as surveillance, letters and attempts to run the victim off the road. Such conduct was not present in this case.

R v Foodey [2003] QCA 310 (25 July 2003) – Queensland Court of Appeal

‘Aggravated stalking’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Wilful damage’

Charge/s: Stalking with circumstance of aggravation (violence), wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant separated from his wife after an eight year marriage and fourteen year relationship. Temporary protection orders were in place against the applicant in favour of his ex-wife. In breach of those orders, he stalked her on a number of separate occasions by assaulting her, driving his car at her, making threats against her and their children and following her car. His criminal history involved drug offences committed a considerable time ago. He pleaded guilty. The sentencing judge noted that the applicant showed no remorse and his conduct was of such seriousness that a deterrent sentence was more important than is normally the case. He was sentenced to 12 and a half months imprisonment, suspended for five years.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. Jerrard JA (with whom Davies JA and Helman J agreed) stated at [11] that, ‘The applicant's behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.’ The sentence was upheld.

R v Layfield [2003] QCA 3 (29 January 2003) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’

Charge/s: Stalking with a circumstance of aggravation (threats of violence).

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was convicted of stalking his former fiancee with the aggravating circumstance that he threatened to use violence against her. A previous domestic violence order was obtained by the complainant and the relationship deteriorated about a year after this. The stalking occurred over a period of less than one year. It occurred over the telephone, as well as by following and loitering outside of her place of employment. He was sentenced to two years imprisonment.

Issue/s: Whether the trial judge should have exercised the option of suspending the sentence after twelve months, on the basis of several factors including the applicant’s youth, lack of criminal history and a strong support network.

Decision and Reasoning: Davies JA (with whom McPherson JA and Mullins J agreed), refused the application, holding that while the trial judge could have imposed the lesser sentence, it was not argued for at trial, and the sentence that was imposed did not demonstrate any error. Davies JA also noted the applicant’s lack of remorse as a relevant factor.

R v Millar [2002] QCA 382 (25 September 2002) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Irrelevant considerations’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Verbal abuse’

Charge/s: Stalking with circumstances of aggravation, common assault, and dangerous operation of a motor vehicle.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant for nine months. They then lived together as a married couple for two weeks until the complainant moved out due to physical and verbal abuse by the applicant. The complainant indicated that she wished to cease all contact with the applicant. There was a domestic violence order in place, which was subsequently breached by the applicant. The stalking (committed when the order was in place) ‘involved menacing telephone calls, banging on her door, threats and letters and other items left at her residence culminating in the applicant's attempting to run the complainant off the road during the day’. This caused the complainant to veer to the wrong side of a busy rode. He then drove his car into hers and assaulted an off duty police officer who was trying to help the complainant. The applicant’s criminal history was comprised of dishonesty offences which had resulted in prison terms. Concurrent sentences of two years imprisonment (with the full activation of an unrelated nine month suspended sentence) were imposed. The complainant indicated that she was still in fear for her safety.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. The applicant submitted, inter alia that his criminal history was confined to dishonesty offences, he was young and a psychological report indicated he was remorseful. He stressed that the comparable decisions before the Court concerned situations where there was no emotional relationship between the complainant and the offender, so that in his case, a more lenient penalty should have been imposed. This argument was rejected. de Jersey CJ (with whom Helman J and Jones J agreed) held – ‘I would say for my part that that (the presence of an emotional relationship between the offender and the victim) is not a feature which should necessarily lead to a lower penalty being imposed, where the stalking follows the break-up of an emotional relationship.’

R v M [2001] QCA 166 (1 May 2001) – Queensland Court of Appeal

‘Assault’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Circumstantial evidence’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Indecent assault’ – ‘Intent’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual and reproductive abuse’

Charge/s: Burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of aggravated indecent assault and assault.

Appeal Type: Appeal against conviction and sentence.

Facts: One week prior to the offences the victim had removed her former partner’s name from their joint lease, terminating his right to enter. He (the appellant) then broke into the victim’s house, after cutting the telephone wires. He then pulled her into the bedroom, punched her, tied her up and forced her to perform oral sex on him at knife point on two separate occasions. He waved his knife at her and said that if the police were called, he would cut off her breasts and have anal sex with her. He then raped her. The appellant was the subject of a domestic violence order obtained by the complainant a month before the offences were committed. He was sentenced to 9 years’ imprisonment.

Issue/s:

1.

Whether the sentence was manifestly excessive.

2.

Whether the trial judge erred in allowing the jury to infer that it was the appellant who cut the telephone lines.

3.

Whether the trial judge erred by failing to direct the jury that they needed to be satisfied that the appellant cut the phone lines beyond reasonable doubt.

4.

Whether evidence of a domestic violence order being in place could be a relevant factor in determining whether the appellant had the requisite intent to commit an offence when he entered the house.

5.

Whether the appellant could rely on the defence of an honest and mistaken belief for the purposes of consent.

Decision and Reasoning:

1.

McPherson JA noted that a sentence of less than seven years could not have been expected – the appellant had a substantial history of domestic violence (including against the complainant’s mother) and breaches of these orders.

2.

McPherson JA held that the judge was correct in allowing the jury to infer that the appellant had caused the damage. There was uncontradicted circumstantial evidence to this effect.

3.

This argument was dismissed. Only each element of the offence needs to be proven beyond reasonable doubt, not every piece of circumstantial evidence.

4.

The Court held that evidence of a domestic violence order being in place could be a relevant factor for the jury to determine intent for the purposes of the burglary charge.

5.

This argument was dismissed. In fact, the trial judge had omitted the requirement of a ‘reasonable’ belief, which was favourable to the appellant.

R v Matamua; ex parte Attorney-General (Qld) [2000] QCA 400 (28 September 2000) – Queensland Court of Appeal

‘Assault’ – ‘Deterrence’ – ‘Going armed in public in such a manner as to cause fear’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm while armed’

Charge/s: Unlawful assault, unlawful assault causing bodily harm while armed, going armed in public in such a manner as to cause fear.

Appeal Type: Appeal against sentence.

Facts: The respondent became involved in an argument with the complainant, with whom he was in a de facto relationship. The respondent smashed a stubby of beer on his forehead which broke. He then pushed the complainant onto the bonnet of a car and held the broken bottle on her throat and threatened to slice her with it. Another argument ensued, at which point the respondent swung an axe at the complainant. He hit her on the back of the head with the handle while yelling abuse at her. She was knocked to the ground. Then, he swung the axe to the ground so that the axe head became stuck in the ground next to the complainant’s head. After a struggle, he winded the complainant and held the axe to her throat, while threatening to kill her. He was severely intoxicated. The relationship ended after the offences. The complainant experienced severe pain, but suffered no permanent physical injury. However, she suffered lasting psychological injuries. The respondent’s criminal history consisted of drug and traffic offences, as well as one offence of behaving in a threatening manner. He was sentenced to a total effective sentence of 18 months’ imprisonment, wholly suspended with an operational period of two and a half years. A $1000 fine and $1000 compensation was also ordered.

Issue/s: Whether the sentence was manifestly inadequate. In particular, whether a custodial sentence was required.

Decision and Reasoning: The appeal was upheld. Pincus JA (with whom Thomas JA and de Jersey CJ agreed) held that the degree of violence was such as to warrant a term of actual imprisonment. A deterrent sentence was needed. His conduct was prolonged. The axe could quite easily have gone through someone’s head. It involved other people as well as his partner. The sentence was increased on the principal charge of assault occasioning bodily harm to 18 months’ imprisonment with a recommendation for parole after six months. It was recommended that the respondent receive counselling for his alcohol problems.

R v MacKenzie [2000] QCA 324 (11 August 2000) – Queensland Court of Appeal

‘Battered wife syndrome’ – ‘Manslaughter’ – ‘Negligent manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Where the offender is also a victim’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction and sentence.

Facts: The applicant was married to her husband for 39 years and was subjected to severe domestic violence during that time. She pleaded guilty to the manslaughter of her husband. She was sentenced to 8 years imprisonment with a non-parole period of 3 years. (See further at [26]-[30]).

Issue/s:

1.

Whether a miscarriage of justice occurred because of advice the appellant was given to plead guilty to manslaughter, instead of pleading not guilty to murder and seeking an acquittal on the basis of self-defence.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning:

1.

This argument was dismissed – the applicant never claimed she was acting in self-defence, and there was minimal evidence to that effect. However, McPherson JA did note that evidence of ‘battered wife’s syndrome’, can be relevant as expert evidence for the purposes of self-defence (or provocation), as demonstrating the heightened awareness and arousal which may be experienced by ‘battered women’, which would be relevant to whether they had reasonable grounds to use the level of force they did.

2.

The appeal against sentence was upheld. McMurdo P (Dutney J concurring as to the orders made) held that notwithstanding that the applicant’s conduct was negligent and not a willed act, a substantial period of imprisonment was required to deter people from handling guns negligently, particularly in the context of domestic violence. Such conduct was not excused by the ‘grim history’ of domestic violence the appellant suffered. Nevertheless, this history did impact upon the appellant in that it contributed to (as a psychologist who interviewed her put it at [21]), ‘ineffective problem solving behaviour and a perception by [the applicant] of the narrowing of her options over time. A perception of narrowed options can often result in decisions made by the abused woman that from the outside look like poor judgment.’ This grave history of abuse was therefore an additional mitigating factor which partly explains how her behaviour came about. As such, taking into account all of the unusual circumstances, the sentence was reduced to 5 years, with a non-parole period of 1 year. McPherson JA agreed that the sentence should be reduced but proposed a slightly longer term.

R v Lane [1998] QCA 167 (8 May 1998) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Good behaviour bond’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Self-defence’ – ‘Where the offender is also a victim’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against the recording of a conviction.

Facts: The applicant was convicted of assault occasioning bodily harm. She was released and placed on a good behaviour bond for two years. For a number of years, the applicant had been the subject of severe physical and emotional abuse by her de facto partner. It is unclear whether at the time of the offence, there was a current or lapsed protection order in place between the applicant and her de facto partner. The incident involved the applicant hitting her de facto partner on the head with a heavy mortar bowl when he was sleeping. She later shot him, after a struggle for the gun. She was acquitted of the shooting charges on the basis that the jury found there was a reasonable doubt as to whether self-defence was available due to a reasonable fear of serious attack. However, she was convicted for the striking incident, with self-defence being excluded beyond reasonable doubt. The sentencing judge commented on the need for a ‘deterrent aspect in the element of sentencing in a case such as this’ (and noted) ‘Little point…would be served at this stage by not recording a conviction’ (See at page 6).

Issue/s: Whether the conviction should have been recorded.

Decision and Reasoning: The application was refused. Derrington J noted at [4] that the ‘(trial judge) made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.’

R v Stephens & Attorney-General of Queensland [1994] QCA 507 (28 November 1994) – Queensland Court of Appeal

‘Consent’ – ‘Indecent assault’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, indecent assault.

Appeal Type: Appeal against sentence.

Facts: The respondent was convicted of two counts of rape and one count of indecent assault of his de facto partner. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the respondent in favour of the victim. He was sentenced to three years imprisonment with a recommendation for parole eligibility after six months. The context of the relationship was one of intimidation and fear.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The Court upheld the appeal, holding that while the trial judge was correct to take into account the respondent’s youth, irrelevant considerations were taken into account. The sentence was increased to five years imprisonment with a recommendation for parole eligibility after two years. The Court found that the primary judge erred by approaching rapes occurring within an existing relationship in a more lenient way. The Court stated that generally, it is not correct to approach rapes occurring in existing relationships more leniently. There may be circumstances where the existence of such a relationship may be relevant to the sentence imposed due to the offender’s state of mind, in that, ‘there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender.’ (Note: This statement has been both distinguished and applied in subsequent Court of Appeal decisions - In R v Conway [2012] QCA 142, Henry J (with whom Muir JA and McMurdo P agreed) stated in obiter that Stephens is ‘of limited utility given its age'. However, the case has been discussed after Conway such as in R v Postchild [2013] QCA 227.) In Stephens itself, the Court of Appeal found that the circumstances of the relationship in that case did not give reason to distinguish it from a rape between strangers. There was a high degree of violence and the complainant made it clear through her protests and tears that she was not consenting.

R v Bell & Anor; ex parte Attorney-General (Qld) [1994] QCA 220 (20 June 1994) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful wounding’ – ‘Victim’

Charge/s: Unlawful Wounding.

Appeal Type: Appeal against sentence.

Facts: The respondent, an Aboriginal man, was intoxicated and following an argument with the complainant (his de facto partner), stabbed her in the thigh, punched her in the mouth twice and continued to shout and threaten her. He pleaded guilty to unlawful wounding and was sentenced to two years’ probation and ordered to perform 120 hours of community service, with no conviction recorded. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. The complainant was supportive of the respondent, but did not wish to see him in prison.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. The respondent was re-sentenced to a suspended period of imprisonment for one year, with an operational period of two years. A conviction was recorded. The Court of Appeal imposed a sentence of imprisonment of 1 year despite the wishes of the complainant, the fact that the relationship had resumed and the fact the respondent had returned to his community and returned to work. However, the operational period of the sentence was suspended. Fitzgerald P (at 6) made the following comments relating to how social and economic disadvantage (both generally and in remote Aboriginal and Torres Strait Islander communities) is relevant when sentencing domestic violence offenders –

“It was right for (the trial judge) to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.”

R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Battered woman syndrome’ – ‘Expert evidence - social worker’ – ‘Fresh evidence’ – ‘Murder’ – ‘Physical violence and harm’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of … Robyn Bella Kina on the charge of murder …’ of Anthony David Black.

Issue/s:

1.

The appellant did not receive a fair trial and a miscarriage of justice occurred because of problems of communication between the appellant and her lawyers which led to fundamental errors at trial.

2.

There was fresh evidence of such a nature that, had it been placed before the jury who decided the case, there was a substantial possibility of acquittal.

3.

The fresh evidence was of such a nature that refusal of it would lead to a miscarriage of justice.

Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.

In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:

“In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.

Supreme Court

Gardiner v Doer [2022] QSC 188 (11 November 2022) – Queensland Supreme Court

‘Civil claim for post-traumatic stress disorder’ – ‘Defendant acquitted at criminal trial’ – ‘Interference with the person’ – ‘Post traumatic stress disorder’ – ‘Tort law’ – ‘Trespass to the person’ – ‘What constitutes assault and/or battery’

Matter: civil claim for damages for assault/and or battery and post- traumatic stress disorder.

Facts: The defendant was found not guilty at a criminal trial. The plaintiff then sued him in tort.

The plaintiff and defendant had been married for 15 years and had two children together. The defendant had been verbally and physically abusive to the plaintiff. They had recently separated when the defendant told the plaintiff he would send someone to rape and sodomise her. That night, he broke into the house dressed in black including a black balaclava. He jumped on top of her, sat on her chest, covered her mouth, held her nose and started shoving the fingers of latex gloves into her mouth. She struggled and he forced her head off the couch and bumped her head on the tiled floor. He put cloth in her mouth and tape over it then did the same with her eyes. He started to tie her hands together with plastic bags. She struggled more and managed to pull off his mask. When he said that he would come for her family, he would burn down her mother’s house, he would come for her sister and that her family was evil, she recognised him as her husband the defendant. She called him by his name and after that the violence diminished.

Held: Judgment for the plaintiff in the sum of $967,113.40

Cooper J found the elements of the tort of battery made out [287]. Most of his judgment addressed the question of damages. His Honour included the following heads of damage in his assessment: General damages: $8,410; Past economic loss: $358,123; Interest on past economic loss: $58,302; Future economic loss: $343,081; Gratuitous services: $35,560; Special damages: $13,412.40; Interest on special damages: $1,899; Future special damages: $13,126, Aggravated damages: $50,000; Interest on aggravated damages: $17,600; Exemplary damages: $50,000: Interest on exemplary damages: $17,600 [389].

R v Peniamina (No 2) [2021] QSC 282 (25 October 2021) – Queensland Supreme Court

‘Allegations of infidelity’ – ‘Children’ – ‘Manslaughter’ – ‘No prior convictions’ – ‘Partial defence of provocation’ – ‘Provocation’ – ‘Reasonable belief’ – ‘Sentencing’ – ‘Weapon’

Charges: Manslaughter x 1, Murder x 1.

Proceedings: Sentencing.

Facts: The male defendant was found guilty of manslaughter following jury retrial (his conviction for murder having been set aside by the High Court in Peniamina v The Queen [2020] HCA 47 (9 December 2020)). The defendant was in a relationship with the female victim for 16 years and the couple shared four school aged children. In 2020, the defendant confronted the victim with allegations of infidelity. When the victim denied these allegations, the defendant struck her, before stabbing her 29 times and hitting her head with a cement bollard which resulted in her death [14], [11]. During the assault, the victim had armed herself with a kitchen knife and cut the defendant’s hand when he attempted to disarm her. The jury found that this act provoked the defendant’s murderous intention [10], accepting the partial defence of provocation. The jury had also found that the defendant’s belief about the victim’s infidelity was reasonable [7].

Decision and Reasoning: The defendant was sentenced to 16 years imprisonment, becoming eligible for parole after serving 80% of the sentence. Justice Davis declared that the offence was a serious violence offence and a domestic violence offence]. In sentencing, His Honour was guided by s 9 of the Penalties and Sentences Act 1992 (‘the Act’) and comparative cases [35]-[39]. His Honour noted the defendant’s early plea of guilty and genuine remorse [23], [25]. Due to the defendant’s lack of prior convictions, His Honour placed less importance on personal deterrence as a sentencing purpose [26]. His Honour took evidence of the defendant’s intention to kill his wife into account as a relevant sentencing consideration [40]-[41] and emphasised that domestic violence was an aggravating factor under s 10A of the Act.

Attorney-General for the State of Qld v Sagiba [2020] QSC 254 (21 August 2020) – Queensland Supreme Court

‘Contravention of supervision order’ – ‘Sentencing orders’

Charges: Contravening supervision order x 5; Assault occasioning bodily harm x 1 (DFV offence); Deprivation of liberty x 1 (DFV offence).

Proceedings: Contravention of supervision order.

Facts: The respondent was subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act (DPSOA). The applicant alleged the respondent contravened a supervision order and sought to extend the period of the supervision order. In early 2020, the respondent was reported to police for allegedly committing domestic violence. The respondent put his female domestic partner in a headlock, strangled and punched her, attempted to prevent her leaving the house and threatened to rape her. The respondent claimed he ‘did not commit an offence of a sexual nature’ on the basis that there was a sexual element to the latest offences, but they were not sexual offences. The psychiatric evidence was that the risk factors that were present when the original supervision order was made remain present.

Issues: Whether adequate protection of the community can be ensured by the release of the respondent subject to a supervision order.

Decision and reasoning: Supervision order extended for a further five years.

The respondent has not demonstrated that the adequate protection of the community – specifically from the commission by the respondent of a ‘serious sexual offence’ – can be ensured by his release without him being subject to supervision.

Johnson v Parole Board of Queensland [2020] QSC 108 (11 May 2020) – Queensland Supreme Court

‘Application for judicial review’ – ‘Attempted murder’ – ‘Good behaviour’ – ‘Improper exercise of power’ – ‘Murder’ – ‘Natural justice’ – ‘Parole application’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Rehabilitation programs’ – ‘Stepchildren in the family’ – ‘Weapon’

Offences: Murder x 4; Attempted murder x 1; Rape x 1

Proceedings: Application for judicial review

Issue: Whether parole should be granted.

Facts: The male applicant plead guilty to murdering his female partner and three of her four children from her earlier marriage. He also plead guilty to the attempted murder and the rape of the fourth child of that marriage. The applicant had used a hammer to inflict head injuries on the victims, and scalded the fourth child with boiling water. The fourth child was not found for five days and suffered permanent injuries. The applicant was convicted on all counts and sentenced to life imprisonment for the murder charges and 14 years’ imprisonment for the rape charge.

After serving 13 years in custody, the applicant became eligible for parole. He made several applications for a parole order, but all were refused. The applicant applied for judicial review of the latest decision refusing parole, contending that the decision was affected by an improper exercise of power because: the refusal was unreasonable, the Parole Board failed to take relevant considerations into account, and the Board applied a rule or policy without regard to the merits of the case. The applicant also contended that there was a breach of the rules of natural justice.

Held: The judge dismissed the applicant’s application for judicial review of the Parole Board’s decision. His Honour held that the Board’s decision, as evidenced by its statement of reasons, did not lack an evident and intelligible justification when all the relevant matters were considered, and therefore the decision was not unreasonable [35]. His Honour noted that "the Board is not compelled to grant parole to a prisoner who has served any particular length of timer in custody or in residential accommodation, who has completed any particular number (or all) of the available recommended rehabilitation programs or who has been of good behaviour for any particular length of time" [32] – what is important is whether the offender shows "internal change, in the sense of the development of an understanding by the offender of the pathways to offending, the triggers that lead along that path and the steps the offender can take …" [33]. In this case, the applicant had not, and still posed a risk to the community.

His Honour also held that the Board did not fail to take a relevant consideration into account, namely a program completion report, as the Board expressly referred to extracts from this report in its statement of reasons [39]-[40]. Nor did the Board apply the policy asserted by the applicant (that the Board followed the commissioned psychiatric opinion without considering alternate views by other experts) inflexibly as the Board’s statement of reasons demonstrated that it considered alternate views of a range of other experts [42], [48].

The judge further held that the Board’s decision was not affected by any breach of the rules of natural justice [55]. The applicant was invited to make submissions to the Board on multiple occasions, and no complaint was made that the applicant had inadequate time to effectively prepare [54].

R v Coman [2020] QSC 60 (3 April 2020) – Queensland Supreme Court

‘Dangerous operation of a vehicle’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘History of emotional abuse’ – ‘Judge only trial’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘People living in regional, rural and remote communities’ – ‘Perceived position of danger’ – ‘Victims as (alleged) perpetrators’

Offences: Manslaughter x 1; Dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance x 1.

Case type: Judge only trial

Facts: The female accused pleaded not guilty to manslaughter and the dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. The victim, her male fiancè, died of traumatic asphyxiation after the accused drove her motor vehicle over him as he lay on the ground. It was uncontroversial that the incident was preceded by an alcohol-fueled argument between the two parties. The accused felt threatened and decided to remove herself from what she believed to be a position of danger by attempting to drive away to a place of safety ([11]). The Crown alleged that the accused knew that the deceased was on the ground and deliberately drove her motor vehicle over the deceased, albeit without any intention to cause death or grievous bodily harm.

At the close of the Crown case, the accused’s counsel made a no case submission with respect to the count of manslaughter. In particular, it was submitted that there was no evidence from which an inference of knowledge or intention could be made. Given the fact that there had been an unexplained deviation of the accused’s car from the driveway to the position where the victim’s body was found, the no case submission was unsuccessful. The accused then elected to give evidence, and claimed that the victim ran into her car as she was driving away from the house. Two defences were raised, namely, unforeseen consequence and one of extraordinary emergency or compulsion.

Issue: Whether the accused was guilty of the offences charged.

Held: Burns J considered the significant body of evidence regarding the victim’s relationship with his former wife, his subsequent partner and the accused. The accused and victim lived in a semi-rural town and had been in a relationship for approximately 2 years. Like the victim’s prior relationships, his relationship with the accused was marred by frequent and excessive alcohol consumption. As a result of his "chronic drinking problem", there were regular outbursts of anger, emotional abuse (including belittling accusations, vile language and intimidation), and, on occasion, actual violence ([18]).

The accused was acquitted on the count of manslaughter. His Honour accepted the accused’s evidence as it was entirely consistent with the physical evidence found at the scene, as well as the nature and extent of the victim’s injuries ([36]), and found that she did not deliberately drive over the victim’s body ([52]). His Honour was also not satisfied beyond reasonable doubt that the accused substantially or significantly caused the victim’s death. The real and effective cause of his death was his decision to place himself in front of the accused’s moving car ([54]). The accused was also acquitted on the alternative count of dangerous operation of a vehicle ([65]).

R v Arumugam [2018] QSC 312 (14 December 2018) – Queensland Supreme Court

‘Arranged marriage’ – ‘Domestic violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’

Charges: Murder x 1

Facts: The offender met the victim, a Singaporean national living in Australia, through an arranged marriage website. The victim had reservations and formed another relationship. The offender threatened to kill himself if she did not marry him. The offender travelled to Australia from South Africa with the intention of killing the victim if she did not proceed with the arranged marriage. This was evidenced by a statement he made in South Africa to that effect. The offender stabbed the victim 32 times in a hotel room, and claimed that she asked him to kill her. The offender pleaded guilty to the charges. By doing so, he cooperated with the administration of justice because he saved the deceased’s family the trauma of a trial, as well as substantial court time and resources.

Issues: Sentencing

Decision and Reasoning: The offender was convicted of one count of murder, being a domestic violence offence, and was sentenced to life imprisonment. His Honour found that his conduct was planned and persistent ([20]), and involved a high degree of brutality and ferocity. Following his arrest, medical examinations found that, during his incarceration, he experienced periods of active psychosis, auditory hallucinations and paranoid and grandiose beliefs. Although the offender was diagnosed with schizotypal personality disorder, narcissistic personality disorder and borderline personality disorder, his Honour held that he was neither deprived nor impaired of full capacity at the relevant time.

R v Storie [2018] QSC 298 (30 November 2018) – Queensland Supreme Court

‘Damaging property’ – ‘Physical violence and harm’ – ‘Protection orders’

Charges: Murder x 1; Burglary by breaking, in the night, whilst armed x 1; Entering premises, doing wilful damage x 1

Facts: In the early hours of the morning, the offender drove to his ex-partner’s house. No one was home. He broke into the garage, slashed the front tyres of her car, stole a child’s bicycle and returned home. He later returned, entered her house and sliced her throat with a knife.

Issues: Sentencing

Decision and Reasoning: The offender was found guilty of ‘premeditated conduct of the very worst kind’ by taking the life of his former partner in a ‘brutal’ manner in circumstances where he was subject to a protection order ([4]). Eleven years prior he had been convicted of breaching a protection order that the victim had taken out. Premeditation was evidenced by numerous statements to the effect that his ex-partner would be ‘a dead woman’ and that the protection order would not stop him. The offender took active steps to dispose of the evidence of the murder, however later made admissions of his involvement in the victim’s death. Boddice J found that, by pleading guilty, he cooperated with the administration of justice because he saved the community the cost of a lengthy trial. He also facilitated the administration of justice by making extensive admissions to police after the discovery of the deceased’s body, which preserved police resources. He was convicted and sentenced to six years’ imprisonment for entering the premises and doing wilful damage, and to 10 years’ imprisonment for burglary by breaking, in the night, whilst armed.

R v Ney a[2011] QSC Indictment No 597 of 2008 (8 March 2011)/a sentence - unreported – Queensland Supreme Court

‘Diminished responsibility’ – ‘Expert evidence - psychiatrist - psychologist’ – ‘Manslaughter’ – ‘Post traumatic stress disorder’

Charge: Manslaughter

Proceeding: Sentencing

Facts: Ney killed her partner, Haynes, striking him in the head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder she pleaded guilty to manslaughter. She was sentenced to nine years imprisonment - eligible for release on parole after serving three years. In sentencing Ney, Dick AJ referred to the reports of a psychologist (Dr Sundin) and a psychiatrist (Associate Professor Carolyn Quadrio):

‘As you know, I have been given a number of psychiatric and psychological reports. The prosecution tendered the report of Dr Josephine Sundin. Dr Sundin has come to the opinion that as a result of the multiple traumas you have suffered in your life since your young teenage years and the series of violent intimate relationships that you have endured since that time, and the fact that you have suffered physical, sexual and psychological abuse over a long period of time, you suffer chronic post-traumatic stress disorder and borderline personality disorder.

The connection between those two matters is explained in her report and in other reports. Associate Professor Carolyn Quadrio, spells it out in her addendum report. She said, "Trauma and abuse have profound effects on mental processes and on psycho-social and psychological functions so that a disorganisation of personality occurs and leads to lasting disorder. Similarly, substance abuse which commonly develops in the context of adolescent trauma, also has a profound effect on mental and psycho-social processes and secondly, incapacitates the person so they are rendered highly vulnerable to further traumas and abuse thus creating a vicious cycle…

I have been assisted by the addendum report of Associate Professor Quadrio where she says that, "At times, however, she returned when she may have been able to escape because she experienced him as someone who loved her. This is explained as traumatic attachment relationship. Further it is also the case that in chronic or complex post-traumatic stress disorder there is both paralysis of initiative whereby the person is greatly compromised in her capacity to take action and there are alterations in perception so they have difficulty perceiving themselves accurately or others and thus in perceiving the true nature of the relationship with an abuser."

Later on she says, "If this psycho physiological disturbance is sustained over time and especially when it occurs in the crucial development years of childhood and adolescence, it eventually leads to disorganisation of personality, sustained hyper vigilance and hyper reactivity become chronic and irreversible."

Further on, "The inability to leave can be explained, partly, as a manifestation of personality disturbance but it is also the case that in domestic violence a woman feels trapped and unable to leave and knows it is not safe to leave so she remains captive and experiences more abuse and trauma and undergoes more personality disorganisation."

I have also noted from the report of Associate Professor Quadrio that those matters which are described as chronic or complex PTSD personality disorder with poly substance dependence or abuse, she says, "These disturbances reflected a lifetime of trauma, a highly chaotic and unsustainable lifestyle and both past and present intimate partner violence."

R v Falls, Coupe, Cummings-Creed & Hoare a[2010] QSC (3 June 2010)/a summing up - unreported – Queensland Supreme Court

‘Abused person’ – ‘Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Murder’ – ‘Self defence’

Charge: Murder.

Result: Acquitted.

Facts: In May 2006, the accused, Susan Falls, shot and killed her husband, Rodney Falls. Throughout their relationship, Susan Falls was subject to significant physical and emotional abuse. This included: numerous incidents of physical violence, beating one of the family’s dogs to death; numerous incidents of sexual violence and rape; threatening to kill her or harm the couple’s children. Susan Falls drugged the deceased and shot him twice as he dozed in a chair. She was charged with murder. Both self-defence, ss 271(2), 273 Criminal Code 1899 (Qld) and the defence of killing for preservation in an abusive domestic relationship, s 304B Criminal Code 1899 (Qld) were raised at trial. Two forensic psychiatrists (Dr Lawrence and Associate Professor Quadrio) were called by the defence and gave evidence about the history of violence and its effect on the offender. (Note Coupe, Cumming-Creed and Hoare were charged with being accessories to the murder but were also acquitted).

Applegarth J, summing up (3 June 2010):

‘Evidence of what, for want of a better expression, is referred to as "battered woman syndrome", is admitted, not because battered woman syndrome is a disorder, or because battered woman syndrome is a defence. Battered woman syndrome isn't a defence. The fact that someone is battered for years doesn't automatically give them a defence. Whether they have a defence depends on whether they acted as they did in circumstances that the law provides is a defence.

However, what is conveniently, and perhaps somewhat inaccurately, described as "battered woman syndrome" is relevant to legal defences.

It doesn't have to be a psychological disorder to be relevant to behaviour and to the defences in this case. It's relevant to the mental state of Ms Falls, and whether she exhibited hyperarousal and other symptoms that are recognised in such cases.

I won't repeat it. You will remember the evidence of Dr Lawrence and Associate Professor Quadrio about the mental state of persons who are subjected to prolonged abuse, their vigilance and so on. Associate Professor Quadrio summed it up pretty simply in saying they're “revved up all the time”.

The behaviour of people, be they soldiers or civilians who are subjected to trauma, has been the subject of organised study. It's not every form of behaviour that is or needs to be the subject of expert evidence. Someone's grief reaction when a loved one dies, or the anxiety that most of us feel when we talk in public, or the anxiety that most people experience when they sit exams, these are things that are familiar to us because we might remember sitting exams or we've had children who sit exams. So we don't need expert evidence to tell us about how people become anxious in certain circumstances, when they're going for an exam or a driver's licence or something of that kind, that we all know about or most of us know about. But because battered wife syndrome is relatively rare it is a legitimate matter for expert evidence and it is the proper subject for expert evidence because, without the assistance of expert evidence, ordinary people who don't know or study these things, might find the behaviour perplexing, counterintuitive or unreasonable.

It might seem odd why there would be a bond between the abuser and the abused. Why there might be, what Dr Lawrence referred to as, an ambivalent relationship, or what Associate Professor Quadrio referred to as a traumatic attachment. The behaviour of someone with a vulnerability because of past abuse who remains with their abuser.

Dr Lawrence and Associate Professor Quadrio, who are experts in their field, were able to address what was described as the "cycle of violence". How, over time the situation worsens. How often it's the case that the abuser isolates the partner. The common symptoms of a variation in mental state. The loss of self-esteem. The belief that the person who is being abused is somehow at fault. The shame they feel when they return, contrary to the advice of police. The belief that in those circumstances the police won't help them again. The reasons they don't leave: children; lack of support; lack of financial support; threats to the woman; threats to people they love; threats over the custody of children.

And apart from giving you evidence about those characteristics and observed behaviours, Dr Lawrence and Associate Professor Quadrio gave you evidence about the fact that victims of prolonged abuse can have quite correct perceptions as to the risks that are posed to them if they try to leave….

Battered wife syndrome isn't a psychological disorder. As Dr Lawrence and Dr Quadrio explained it's a pattern of behaviours. It's been the subject of research, and it's a field of study by practitioners and scholars whose research and reports are open to contest, as you'd expect scientific inquiry and research to be in a proper field of scientific study.

Dr Quadrio described how there is what she described as a "learned helplessness". How abused women are afraid to leave because they correctly assess that they're at risk. That there may have been past attempts to leave. She referred to the triggers that occur for a violent response. That the level of risk is perceived to increase or has in fact increased. Often there are threats to harm children, and the threats become specific in terms of how, when and where they will be carried out.

District Court

EJB v Commissioner of Police [2023] QDC 246 (30 January 2024) – Queensland District Court

‘Appeal’ - ‘Breach of protection order’ - ‘Parole’

Charges: Contravention of protection order x 1.

Proceedings: Appeal against sentence.

Facts: The male applicant was convicted on his own plea of guilty for contravening a protection order and sentenced to three months’ imprisonment (served cumulatively upon a nine months’ imprisonment imposed on other domestic violence offences). [2] The contraventions were committed whilst on parole after serving a sentence for other domestic violence related offences.

Appeal: The appellant contends that the three month sentence was manifestly excessive. [3]

Decision and Reasoning: Appeal dismissed. District Court Judge Farr SC had regard to the appellant’s ‘very lengthy criminal history’, and the fact that the offending occurred while the appellant was released on parole. [6]–[8] Accordingly, the sentence was not excessive in the circumstances. [18]

The King v ADP [2023] QDC 183 (5 October 2023) – Queensland District Court

‘Judge alone trial’ - ‘Physical violence and harm’ - ‘Sexual and reproductive abuse’ - ‘Rape’ - ‘Honest and reasonable mistake’ - ‘separation’ - ‘Strangulation’ - ‘deprivation of liberty’

Charges: Assault occasioning bodily harm x 2; deprivation of liberty x 2; strangulation x 1; common assault x 2; rape x 2.

Proceedings: Trial by judge alone.

Facts: The male defendant pleaded guilty to offences — excluding rape — committed against his former female partner, throughout their eight month relationship. [1]

The defendant was physically abusive, barricading her in a room after she had packed her bags to leave, biting and pushing her and strangling and rendering unconscious the complainant on multiple occasions. [4]–[7] The defendant often threatened to self-harm or commit suicide. [11] The complainant alleges the defendant raped her twice at his house one afternoon. [12]

Issue: Whether the prosecution can prove the complainant did not consent, and if so, whether the prosecution can exclude beyond reasonable doubt that the defendant did not honestly but mistakenly believe she consented. [10]

Decision and Reasoning: Not guilty of two counts of rape. The complainant was ‘an honest witness’. However, certain features of her evidence ‘reflect adversely on her reliability’; [35] namely, the complainant not challenging the defendant’s recollection of consent during a pretext call: [36]

For example, she did not challenge defendant’s recollection by suggesting to him that she had told him to stop a number of times, that she said no, that she pushed him away when he was trying to have sexual intercourse, that she was crying before he stopped having sex with her or that he had admitted to her later that day that he had raped her [36]

Accordingly McGinness DCJ was not satisfied that the complainant ‘reliably recalled when and how she communicated to the defendant that she was not consenting’. [38]

Further, McGinness DCJ was not satisfied that the prosecution that excluded beyond reasonable doubt the defence of honest and reasonable mistake: evidence of the defendant indicated his honest belief that he did not rape the complainant. [52]–[54]

SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65 (17 April 2023) – Queensland District Court

‘Aboriginal and torres strait islander person’ – ‘Appeal against protection order made after childrens court sentencing’ – ‘Child perpetrator’ – ‘Child victim’ – ‘Choking’ – ‘Couple relationship’ – ‘Couple relationship between children’ – ‘Necessary or desirable’ – ‘Physical violence’ – ‘Protection order’ – ‘Relevant relationship’ – ‘Section 37 domestic and family violence protection act 2012 (qld)’ – ‘Threats’ – ‘Weapon’

Proceedings: Appeal against temporary protection order.

Grounds:

1.

The magistrate did not have jurisdiction to make a protection order.

2.

The appellant was not afforded procedural fairness in terms of representation and an opportunity to be heard.

3.

The learned magistrate did not provide adequate reasons for the decision.

4.

The children are not in a “relevant relationship” being a “couple relationship” within the meaning of the Act.

5.

A domestic violence protection order was not necessary or desirable.

Facts: The appellant was a 12-year-old boy who had been found to be in a ‘couple relationship’ with his 12-year-old ‘girlfriend.’

After sentencing the appellant in the Childrens Court in relation to a series of offences for assaulting the aggrieved, including choking her, striking her with a broom handle and threatening her the learned Magistrate heard and determined the protection order application on a final basis, when it had only been listed for mention.

The Commissioner conceded that the learned Magistrate failed to give proper reasoned consideration to the s 37 Domestic and Family Violence Protection Act 2012 (Qld) factors pre-requisite to the making of the order.

Reasoning and decision: Appeal allowed, application for protection order dismissed.

Morzone KC, DCJ observed:

[7] However, in my respectful opinion that hearing, and determination was premature and deeply flawed in several ways.

[8] Firstly, the proceeding was only set for “mention” on that day and was neither intended nor ready for a final hearing and orders. The material consisted of the initiating application with some narrative of the circumstances attested to by the investigating police. Nevertheless, the hearing morphed into final orders without adequate reasons.

[9] Secondly, the appellant child was not afforded procedural fairness due to inadequate representation absent a guardian and not being afforded any reasonable opportunity to be heard. I do not accept that the child can be said to have retained the duty lawyer, instead the representation was effectively appointed by the court ad hoc and in the nature of amicus curiae. After taking account of court procedures, I estimate that the child had barely 5 minutes with the duty lawyer via the video-link between the courtroom and the youth detention centre. The appellant child did not have the benefit of a guardian or parent. The learned magistrate proceeded as if the appellant consented to final orders, despite both parties urging the court to adjourn the hearing pending completion of the probation order. The duty lawyer’s submissions fell well short of informed consent, and any final orders were premature and ill-founded.

[10] Thirdly, the reasons for the decision below were inadequate.

[11] Fourthly, and in any event, there was and is insufficient and inadequate evidence to establish a requisite “couple relationship” between the two children. At best, the immature relationship between the children could be colloquially described as ‘puppy love’ and falling well short of the characteristic maturity of a ‘couple relationship’ caught by the Act.

[12] Fifthly, a domestic violence protection order is neither necessary nor desirable under the Act. Instead, “necessary or desirable” orders were, and remain, available under the Youth Justice Act1992, which provides appropriate safeguards and considerations pursuant to the youth justice principles. The Childrens Court sentence proceedings may be re-opened to amend the conditions of the appellant’s probation order, but that is beyond the remit of this appellate court.

[13] Sixthly, in the absence of any proper and sufficient evidentiary basis for the making of a protection order – neither the temporary nor final order (as amended) should have been made, nor should the application be entertained where the Youth Justice Act1992 caters for the circumstances. All orders should be set aside, and the application should be dismissed.

Queensland Police Service v KBH [2023] QDC 26 (16 February 2023) – Queensland District Court

‘Allegations of infidelity’ – ‘Breach of protection order’ – ‘Children’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘History of domestic and family violence’ – ‘Manifestly inadequate’ – ‘Protection order’ – ‘Sentencing’ – ‘Separation’ – ‘Use of children in abuse’

Charges: 4x breaches of protection order.

Proceedings: Sentencing appeal pursuant to section 222 Justices Act 1886.

Grounds: The penalty of $300 for the first two counts, and $200 for the remaining charges, was manifestly inadequate.

Facts: The respondent man and aggrieved woman had been in a relationship but had separated. The offending involved multiple breaches/contraventions of a protection order, where the aggrieved was the person protected. On the first occasion, the respondent approached the aggrieved at a football match and used derogatory language before later letting himself into her house and refusing to leave until police were called. On another occasion he called their child and asked to speak to the aggrieved, accusing her of drinking and seeing other men. The final incident was when he was invited to the aggrieved’s home on the condition he leave after dinner and then refused to do so until police were again called.

The respondent had previously been sentenced to a term of imprisonment for contravention of a protection order.

Decision: The original sentence was set aside as an erroneous exercise of sentencing discretion and the respondent was resentenced to three months imprisonment.

Coker DJC found that the Magistrate had erroneously misconstrued the offending as minor breaches, evidencing a ‘total misunderstanding of the nature of domestic violence and the nature of control and dominion exercised in relation to a former intimate partner’ [25]. Where the respondent knew of his obligation not to approach the aggrieved and continued to do so, attending her home when he had been specifically directed not to, accusing her of seeing other men and refusing to leave her house when asked, the breaches were not inconsequential [25], [27], [29].

Coker DJC characterised the breaches as controlling and coercive, being ‘significant indications of a lack of appreciation or respect by the respondent of the orders previously made, and of the opportunities given to change the direction of his ways,’ particularly given the repetition of conduct for which he had previously been sentenced [28], [30].

The ‘lenient’ fine was manifestly inadequate and unreasonable in all of the circumstances [31]. Coker DJC emphasised the need to impose penalties reflecting the importance of ensuring that controlling domestic violence behaviours do not continue [32] and that while not a serious act of domestic violence, the repeated conduct of the respondent and 10 previous domestic violence convictions justified significant penalty [34].

Coker DJC stated: ‘Again, these are by no means minor matters that arise in relation to the breaches. They are controlling. They are coercive and, most importantly, they are significant indications of a lack of appreciation or respect by the respondent of the orders previously made, and of the opportunities given to change the direction of his ways.’ [28]

Wylie v AMN [2022] QDC 241 (26 October 2022) (26 October 2022) – Queensland District Court

‘Appeal’ – ‘Civil’ – ‘Court's own motion’ – ‘Failure to give reasonable opportunity to consider and respond to summary dismissal’ – ‘Police officer alleged perpetrator’ – ‘Protection order sought against serving police officer’ – ‘Summary dismissal of application for protection order’ – ‘Whether magistrate has jurisdiction to hear protection order application by police protection notice if notice not filed in the district’

Proceedings: Appeal against summary dismissal of application for protection order.

Facts: Senior Constable Wylie filed an application for a Police Protection Order under the Domestic and Family Violence Protection Act 2012 (DFVP Act). Notice was served at the Caboolture police station but filed in the Pine Rivers Magistrate’s Court. The DFVP Act s 111(1) states that Notice must be filed in the local Magistrate’s Court. The respondent argued that the case had been commenced in the wrong court so proceedings were a nullity.

The magistrate dismissed the proceedings summarily without either party raising this or having an opportunity to make submissions on this [14]. The Magistrate was concerned that the matter be decided quickly as the respondent was a serving police officer and referred repeatedly to the potential for the proceedings to waste the court’s time [17].

The aggrieved had been married to the respondent for 2.5 years and they had one son. The aggrieved applied for a protection order on the basis that the respondent had threatened to jump in front of a truck holding the child; had told her to remember that he carried a gun all day at work; and had said that no one would believe her over him, among other things.

Grounds

(a)

Jurisdiction: Whether the learned Magistrate had erred in assuming she had jurisdiction to hear the application where the Police Protection Notice initiating the proceeding was served at the Caboolture Police Station, but was filed in the Pine Rivers Magistrates Court; and

(b)

summary dismissal: Whether the Magistrate erred in dismissing the application summarily, without giving the appellant/applicant the opportunity to cross examine witnesses for the respondent.

Decision and Reasoning: Appeal upheld; order for summary dismissal set aside; matter remitted for rehearing by a different magistrate.

On jurisdiction, Porter KC DCJ held that jurisdiction should be interpreted broadly [40] and resolved a conflict between ss 136 and 111 of the DFVP Act by upholding the precedence of s136 which gives courts jurisdiction to ‘hear and decide any application made to the court under this Act’ (s136(1)(a)).

On summary dismissal, his Honour found that the Magistrate had erred in three ways:

1.

Her Honour should have declined to consider the application for summary dismissal until the evidence before her was tested at trial [76].

2.

She erred in placing weight on the fact that the respondent was a serving police officer when deciding to dismiss the application [78].

3.

She initiated the dismissal of the application of her own volition. The one day’s notice given failed to accord procedural fairness [79].

He referred to the Domestic and Family Violence Protection Rules 2014, Rule 22, which gives plenary power to determine applications. This is subject to Rule 23, which sets out a list of conditions to which this power is subject. Relevant here are that ‘each party is entitled to a fair hearing’ (Rule 23 (2)(b)) and ‘each party must be given a reasonable opportunity to lead evidence and cross examine witnesses’ (Rule 23 (2)(i)). [60]

His Honour continued at [61]:

Turning to the Act itself, apart from s. 51, there does not appear to be any statutory provision which expressly, or by necessary implication, authorises hearing and determination of an application for a (final) protection order other than by “trial” of the application. It is to be noted of course that the Act does not expressly say that a protection order is to be determined by trial. However, where the Act creates a right and confers civil jurisdiction on a court to hear and decide an application to enforce that right, it must necessarily imply that the application be determined by procedurally fair process apposite to a hearing which results in a final order. At the least, that must include a reasonable opportunity to lead evidence, cross examine and otherwise test another party’s evidence and address the Court on the findings of fact that the Court should make on the evidentiary record and the law that applies to those facts.

He held that the Magistrate did not have an express statutory power summarily to dismiss the application [66]. While statutory courts do not have inherent jurisdiction, they have implied powers to do whatever is necessary to perform their function [67]. While a court would have jurisdiction summarily to dismiss frivolous or vexatious cases that amount to an abuse of process, this power does not extend to cases ‘where there is a real question of fact to be determined’ [72].

LJV v Commissioner of Police [2022] QDC 220 (13 September 2022) – Queensland District Court

‘Appeal’ – ‘Appeal against conviction and sentence’ – ‘Appeal against conviction dismissed’ – ‘Appeal against sentence upheld’ – ‘Appellant convicted of contravening a domestic violence order’ – ‘Criminal law’ – ‘Whether magistrate interfered with evidence of a witness’ – ‘Whether magistrate's involvement in conduct of trial went beyond their role as trial judge’ – ‘Whether the appellant received a fair trial’

Matter: appeal against conviction and sentence.

Facts: The applicant was subject to a domestic violence order and due to attend court for a breach thereof when he sent the following text to the respondent:

You will need to pick up the kids from school today as I need to prepare for court tomorrow morning to contest the bogus claims you have laid against their father in yet another alienation attempt. I will pick up the children as normal from school on Friday depening [a typographical error, I infer] on the decision from the judge.

The prosecution argued that the text breached the requirement for the applicant to be of good behaviour and not commit domestic violence and the requirement not to contact the respondent except concerning parental or contact issues.

Grounds:

1.

The Magistrate’s examination of the aggrieved was a miscarriage of justice as it led evidence on her behalf on which the accused had no notice [15]. His Honour’s examination of the applicant relied on knowledge of previous actions before the court and risked his being identified with one of the parties [20]. The trial was unfair and the conviction should not stand.

2.

The sentence was manifestly excessive.

Held: Appeal against conviction dismissed; appeal against sentence upheld; sentence set aside; order that the offender be convicted but that no conviction be recorded and the offender not be further punished.

Porter QC DCJ found that a portion of the text message breached the requirement in the domestic violence order not to contact the respondent except concerning parental or contact issues [22]. His Honour deliberately did not make a finding as to whether the requirement to be of good behaviour was breached due to the unfairness of the trial on that issue [21]. He agreed with the prosecution submission that the sentence of one month’s imprisonment suspended after serving 5 days was manifestly excessive [23].

HFL v PLL [2022] QDC 219 (5 August 2022)- Queensland District Court

‘Appeal against variation of protection order to include named persons’ – ‘Appeal and new trial’ – ‘Appeal pursuant to s222 of the justices act 1886 (qld)’ – ‘Appeal unopposed’ – ‘Application to vary domestic violence order’ – ‘Costs’ – ‘Criminal law’ – ‘Grounds for interference’ – ‘Protection order’ – ‘Whether the magistrate erred by varying a protection order to include two named persons where parties had agreed that aspect of the proceedings would not proceed’

Case type: Appeal pursuant to s222 of the Justices Act 1886 (Qld).

Facts: The applicant appealed against an order by a magistrate under s 52 of the Domestic and Family Violence Protection Act 2012 (Qld) including two named persons as protected persons in a domestic violence protection order where the respondent (to the current action) had withdrawn the issue. The respondent did not attend the appeal hearing in order to save costs.

Grounds:

1.

The learned magistrate erred by varying a 2019 domestic violence order to include two named persons where the respondent indicated she was no longer seeking to have the two named persons included; no evidence was given by them about a complaint about the appellant; the court proceedings were conducted without addressing the issue; and there was no other basis to vary the 2019 order to include them;

2.

The magistrate failed to give adequate reasons for including the two named persons; and

3.

The magistrate failed to afford procedural fairness, particularly to the appellant, by failing to allow opportunity to address his Honour about whether the order ought to have been varied.

Held: Appeal allowed.

Deardon DCJ held that the lack of reasons given and the failure to afford procedural fairness were legal errors [10]. The errors should be remedied in light of the consequences of the Magistrate varying the order: the appellant was at risk of being charged with a criminal offence if he tried to contact the named persons or approached within 100 m of where they live, work or are [13]-[14]. His Honour further ordered that the respondent pay a fixed amount of costs and granted her an indemnity certificate.

DLM v WER & The Commissioner of Police [2022] QDC 79 (6 April 2022) – Queensland District Court

‘Child custody’ – ‘Coercive control’ – ‘Credibility’ – ‘Protection order’ – ‘Technology facilitated abuse’

Proceedings: Appeal against protection order.

Facts: The appellant man and first respondent woman separated after living together with their child for several years [9]. In September 2020, a Magistrate granted a protection order with non-contact conditions in the first respondent’s favour and dismissed a temporary protection order that had been granted in the appellant’s favour in July 2019. In October 2020, the appellant appealed the decision and applied to adduce ‘fresh’ evidence to establish that the first respondent had perpetrated acts of domestic violence [1]-[2].

Decision and Reasoning: Appeal dismissed.

Justice Cash considered the evidence adduced at trial and affirmed the Magistrate’s findings that ‘there had been no acts of domestic violence by the first respondent’ and that ‘there had been acts of domestic violence by the appellant’ [80]. Accordingly, His Honour affirmed the Magistrate’s decision to award a protection order in the first respondent’s favour and dismissed the appellants application to adduce evidence.

His Honour affirmed the Magistrate’s findings as to the appellant’s lack of credibility. The Magistrate had not accepted the appellant’s evidence, having found that the appellant’s claim that the first respondent deliberately had nightmares to antagonise him ‘seriously undermined [his] credibility’, which did not improve during cross-examination [36], [70]. His Honour affirmed the Magistrate’s finding that the appellant had engaged in acts of domestic violence. Firstly, the appellant had limited the first respondent’s access to their child in a manner that was manipulative and controlling [42], [70]-[72]. Secondly, the appellant had taken sexually explicit photographs of the first respondent without her knowledge or consent [38]. His Honour stated that this was an act of domestic violence that was sexually abusive and done in an attempt to ‘dominate’, ‘control’ and ‘punish’ the first respondent by causing her to fear that the images would be released during court proceedings, as the appellant had previously done [38], [42]. His Honour continued: ‘The appellant had by his conduct demonstrated a pattern of domestic violence. There was the real prospect of future domestic violence, especially where the parties shared a child, and it was likely they would have to maintain some contact’ [72]. Therefore, ‘there was no error in the Magistrate’s conclusion that a protection order should be made in favour of the first respondent’ [72].

FLC v MRT [2021] QDC 264 (1 November 2021) – Queensland District Court

‘Adverse inference’ – ‘Emotional abuse’ – ‘Failure to provide adequate reasons’ – ‘Protection order appeal’ – ‘Rule in jones v dunkel’

Proceedings: Appeal pursuant to s 164 of Domestic Violence and Family Protection Act 2012 (Qld) against the making of a protection order.

Facts: The appellant man is the respondent man’s uncle. The 29 year-old respondent gave evidence he was diagnosed with autism in 2017. The respondent’s mother (the appellant’s sister) has a lengthy history of serious mental illness and alcoholism and the respondent resided with the appellant and his partner for a time when he was a child. In the circumstances the appellant has provided a degree of support to the respondent from time to time. There was vague evidence in relation to ongoing Supreme Court proceedings in relation to trusts and the estate of the appellant’s father/respondent’s grandfather between the respondent and his siblings.

The respondent gave evidence of what he said were multiple incidents over a number of years where the appellant was emotionally and psychologically abusive towards him. The appellant’s evidence disputed many of the respondent’s allegations. There were submissions made by the respondent’s counsel at trial that it would be inappropriate to draw Jones v Dunkel ((1959) 101 CLR 298) inferences in relation to the failure to call the respondent’s mother and sister and the magistrate did not indicate a decision in that respect. The trial magistrate seemed to make findings on the basis of the demeanour of the respondent’s sister in circumstances where she was not called as a witness.

Issue: Whether the learned Magistrate failed to give sufficient reasons for the decision to grant the application for a protection order; whether the learned Magistrate took into account extraneous matters including the demeanour of the respondent’s support person; whether the learned Magistrate failed to properly consider or direct himself in line with the principle from Jones v Dunkel; whether the learned Magistrate erred in failing to make sufficient findings of fact and in failing to explain how he concluded that the requirements for making a protection order had been established.

Decision and Reasoning: Orders set aside, matter remitted for rehearing by a different Magistrate.

The trial Magistrate’s reasons failed to sufficiently address any of the conflicting versions of the appellant and respondent, the legal issues as to whether domestic violence arose and if so what kind and whether an order was necessary.

Porter QC DCJ observed:

[58] ….[W]here there are contested facts, and the circumstances are such as to make both the identification of acts of domestic violence and the need for an order open to serious question, it is necessary for properly considered reasons to be given. Those reasons must, at a minimum, cover the following matters:

(a)

The Court must make findings of fact on the principal contested factual issues with some explanation of the basis for the finding by reference to the evidence;

(b)

The Court must identify expressly what acts are found to comprise acts of domestic violence and why;

(c)

The Court must explain the basis for concluding that an order is necessary and desirable in the light of the acts found and the other relevant circumstances;

(d)

The Court must explain why the principal submissions made by the unsuccessful party on these issues have been rejected.

[59] The reasons in this case failed to address any of those matters.

SHW v ABC [2021] QDC 151 (13 August 2021) – Queensland District Court

‘Coercive control’ – ‘Credibility’ – ‘Cross-applications’ – ‘Emotional abuse’ – ‘Failure to report’ – ‘Police officer victim’ – ‘Protection order’

Matter: Appeal against dismissal of application for protection order.

Ground: The Magistrate erred in determining that no act of domestic violence had been committed by the respondent against the appellant.

Facts: The appellant police officer woman and respondent man were in a relationship which had broken down. The appellant usually had access to assets and records of the respondent’s company. The appellant’s evidence included several alleged incidents:

•

The respondent did not talk to the appellant after the appellant’s sister died;

•

The respondent had taken the appellant’s Mercedes Benz, which was company property;

•

The respondent did not allow the appellant access to the company finances;

•

The respondent attended a joint property in Paluma at a time they had agreed only she would access the property and disconnected solar panels and gas bottles;

•

The respondent refused to hand over the appellant’s furniture (despite police being present), and handed over the wrong keys to his solicitors so that when the appellant did attend Paluma, she would be unable to enter the cabin.

The appellant was a police officer. Her failure to report any abuse despite her occupation was considered by the Magistrate as evidence that the alleged domestic abuse had not occurred.

Decision and reasoning: Appeal allowed, protection order issued. The Magistrate erred in finding that it was not necessary or desirable to protect the appellant from future domestic violence, and the appeal was allowed.

While the respondent’s behaviour in relation to the appellant’s sister’s death, the company Mercedes Benz, and the company finances were all explicable by innocent reasons, his conduct in relation to the Paluma property, the furniture, and the keys were all evidence of ‘controlling and emotionally abusive behaviour that has the potential to be repeated during the course of the property settlement’, during which ‘contact [between the parties] is inevitable’. [37]

QKL v Queensland Police Service [2021] QDC 195 (18 June 2021) – Queensland District Court

‘Cross-examination’ – ‘Denial of natural justice’ – ‘Evidence’ – ‘Natural justice’ – ‘Necessary or desirable’

Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1.

Proceedings: Appeal pursuant to s 164 of Domestic Violence and Family Protection Act 2012 (Qld) against the making of a protection order.

Facts: The appellant (respondent) and aggrieved were sisters. The Magistrate hearing the application, pursued by police, did not allow the appellant sister a hearing or opportunity to cross-examine witnesses, in particular the aggrieved sister and both the appellant and aggrieved had submitted that they did not believe a protection order was necessary. The decision was made upon the papers and the appellant was not afforded the opportunity to give evidence as to her insight and the need for the orders. The appellant’s solicitor sought a listing for half-day hearing on counsel’s instructions, but the Magistrate proceeded to hear the matter on the papers. The Magistrate in his decision acknowledged that in the absence of evidence he was unable to make a determination as to whether the aggrieved was a particularly vulnerable person requiring extra consideration, or give weight to the aggrieved’s request an order not be made without explanation why the aggrieved did not see the order as necessary or desirable. The Magistrate made adverse findings against the appellant, finding the extensive differences between the appellant and aggrieved’s affidavit evidence indicated a lack of insight in the appellant, which suggestion the appellant was not given any opportunity to respond to. Adverse findings were made which seemed to have no basis in evidence, but if there was evidence of those matters they were not put to the appellant and she did not have an opportunity to respond to them.

Grounds:

1.

The magistrate erred in finding the matter without a hearing resulting in a denial of natural justice; and

2.

The magistrate erred in finding a domestic and family violence protection order was desirable in the circumstances.

Decision and Reasoning:

1.

Appeal allowed;

2.

Order of the Magistrate of 10 September 2020 set aside;

3.

Application remitted for hearing to the Brisbane Magistrates Court;

Burnett AM DCJ held that the ruling was made before the appellant’s solicitor was able to obtain instructions from counsel, and at the very least the matter ought to have been stood down to obtain instructions from counsel. The appellant has been denied natural justice as there were critical disputed matters going to the only issue in the matter, whether a protection order was necessary or desirable, which cross-examination of the parties could have resolved. The appellant was also denied the opportunity to put relevant evidence before the court.

Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99 (9 June 2021) – Queensland District Court

‘Appeal’ – ‘Orders made by consent’ – ‘Protection order’ – ‘Protection order appeal’ – ‘Solicitor party’ – ‘Systems abuse’

Proceedings: Appeal pursuant to s 164 of the Domestic & Family Violence Protection Act 2012 (the Act) against the making of a protection order.

Facts: The respondent husband (a solicitor) appealed against the making of a protection order which the Magistrate purported to make by consent, arguing he had not consented to the making of the order. He was represented at the hearing by a barrister on a direct brief and it was apparent his counsel understood the nature of the proceedings and matters before the court. The appellant argued that nothing in the hearing transcript indicated the appellant’s personal consent to the orders, and he was silent throughout the hearing, although his counsel did engage in discussion in relation to what is understood to be a standard set of orders.

Issue: Whether the Magistrate complied with the requirement of s84(2) Domestic & Family Violence Protection Act 2012 that a Magistrate about to make an order where the respondent is present “must ensure” the respondent understands the listed matters.

Decision and Reasoning: Decision appealed from confirmed, appeal dismissed.

Dick SC DCJ was satisfied that the Magistrate ensured the appellant consented or did not object to the orders because he was present in court, the Magistrate engaged in discussion with counsel and Dick SC DCJ did not believe the appellant’s counsel would not have obtained instructions on the orders handed down from the bench to counsel.

Dick SC DCJ noted:

[41] In this case the following points must be recognised.

•

The Act does not require that the Magistrate engage personally with the respondent.

•

Sub-section 84(4) of the Act provides that a court can use services or help from other persons to assist the court in discharging its obligations under s 84. Some examples are provided and for the most part, if not all, the person giving the explanation is not a legally qualified person.

•

The Appellant is a qualified solicitor.

•

The Appellant was represented in court by competent counsel.

•

The Appellant was in court at the time the order was made.

•

There was a discussion between the bench and the two barristers concerning the order.

•

The order was made by consent or without objection.

•

Section 85 of the Act provides the court must include with a copy of the orders served on the respondent, a written explanation containing the relevant material that is referred to in s 85.

NJB v Commissioner of Police [2021] QDC 42 (4 March 2021) – Queensland District Court

‘Appeal against conviction and sentence’ – ‘Breach of protection order’ – ‘Credibility’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Victim experience of court processes’

Charges: Contravening a domestic violence order.

Proceedings: Appeal against conviction and appeal against sentence.

Facts: The critical issues that had to be determined by the magistrate below were whether the male appellant, as stated by the female respondent, punched her to the side of her head after a series of arguments or, whether because of her lengthy and serious history of seizures, the court could not be satisfied beyond reasonable doubt that the injury was not the consequence of the respondent having a seizure, falling and thereby injuring herself. The appellant was found guilty and sentenced to four months imprisonment, with a parole release date set after two months.

Grounds of appeal:

Appeal against conviction:

1.

The magistrate’s findings of the respondent’s credibility or reliability were unreasonable or could not be supported by the evidence (Grounds 1 and 2).

2.

The magistrate erred in permitting the appellant to be asked about bad character without leave being sought and granted, and against objection (Ground 3).

Appeal against sentence: The sentence was manifestly excessive.

Held:

Appeal against conviction dismissed.

Grounds 1 and 2 were dismissed. Contrary to the appellant’s submission that the respondent was intoxicated on the night of the offending, the evidence supported the fact that she was no more than ‘tipsy’. The argument that the respondent had a motive to lie about the assault was also unclear and implausible.

The appellant further submitted that the magistrate failed to give sufficient weight to the respondent’s evidence minimising the frequency of her seizures. In dismissing this argument, his Honour said:

“It can be accepted that at times, the respondent did tend to downplay the frequency of those seizures. That, of course, is not to her credit. That said, the nature and extent of the seizures were clearly distressing to her and, quite likely, a source of embarrassment. That the respondent might tend to downplay her condition does not, in my view, materially damage her credit. Further, the cross-examination of the respondent on this topic was not only distressing for the respondent, it was also, at times, quite confusing. That may also be another reason which goes some way to explaining the conflicting evidence on this issue.”

There was no room for a reasonable doubt that the injury suffered by the respondent was the result of the respondent having a seizure and falling or otherwise sustaining the injury as a result thereof. It followed that the court was satisfied beyond reasonable doubt that the appellant was guilty of committing the offence charged.

Ground 3 was also dismissed. The cross-examination of the respondent and the evidence led from the appellant by his solicitor clearly left it open for the prosecutor to raise an alleged prior incident and put it to the appellant. In any event, the appellant denied the matter and the magistrate observed that that was as far as the matter could go.

Appeal against sentence allowed.

His Honour recognised that the cross-examination of the respondent about her medical history was prolonged and distressing, however this had to be seen in light of her somewhat confusing evidence. His Honour recognised that: “I have no doubt that the cross-examination could have been carried out much more efficiently and greatly shortened both the length of the cross-examination and the distress caused to the respondent.” That said, it was wrong to describe the cross-examination as largely unnecessary and irrelevant.

None of the appellant’s favourable antecedents were mentioned or given weight by the magistrate (appellant’s strong work ethic, employment, character references, and relationships with his mother and children). This was an error in the exercise of the sentencing discretion. The sentence imposed was manifestly excessive and the appellant re-sentenced to 30 days imprisonment.

PRH v LPL [2021] QDC 17 (3 February 2021) – Queensland District Court

‘Appeal against orders made in a domestic violence proceeding’ – ‘Ouster condition’ – ‘Protection orders’

Proceedings: Appeal against orders made in a domestic violence proceeding.

Facts: The appellant was prohibited from entering, remaining, approaching etc within 500 metres of the first respondent’s (aggrieved) usual place of residence and from following or approaching within 500 metres of the aggrieved. The appellant was also prohibited from entering, remaining, approaching etc to within 200 metres of premises where the named person usually lived, worked or frequented. The magistrate further ordered that the first respondent have sole right of occupancy of the Buddina residence.

Grounds of appeal: 15 grounds of appeal centred around the court below denying procedural fairness to the appellant by refusing to permit evidence to be led and wrongfully accepting false and misleading evidence given by the first respondent.

Held: Appeal dismissed, subject to a number of variations.

In particular, the imposition of a seven-year ouster condition was neither necessary to protect the first respondent nor desirable. The first respondent did not want to move as the property “was her home, she felt safe there”. However, the appellant was the registered proprietor of the property. The first respondent had had the benefit of the ouster condition for two years and three months. She also had the financial capacity to purchase alternative premises/rent.

MB v Queensland Police Service [2020] QDC 325 (18 December 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Breach bail conditions’ – ‘Breach protection orders’ – ‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Wilful damage’

Charges: Contravention of a police protection notice x 1; Wilful damage (domestic violence offence) x 1; Breach of bail condition x 7; Contravention of a domestic violence order x 4.

Proceedings: Appeal against sentence.

Facts: The male appellant repeatedly breached orders protecting his former female partner and her son. The appellant pleaded guilty and was sentenced to 2 years’ probation and ordered to pay $611.70. Convictions were recorded on all counts.

Grounds of appeal: Fresh evidence was sought to be admitted arguing that recording a conviction would have a significant effect on the appellant’s employment overseas, and the sentence was manifestly excessive.

Held: Application to admit fresh evidence was refused and the appeal dismissed.

It was appropriate to record convictions in light of the number of convictions and their serious nature (prolonged over 4 months, including more serious examples, continuation after release from custody). As at [57]: “When one considers s 12 of the Penalties and Sentences Act, the seriousness of the offences in combination outweighed any economic effect or wellbeing effect of the recording of convictions.”

The sentence could not be said to be manifestly excessive. Despite being given many chances, the appellant had “continued to ‘thumb his nose’ at the bail conditions and the domestic violence order”. Aggravating features included that these were instances of domestic violence and “the emotional harm done to the victims and the damage, loss and injury caused.” Voluntary intoxication was no excuse. The guilty pleas were sufficiently taken into account (at [59]-[61]).

It was noted at [22], [26]-[28]:

“Charge 12 occurred on 27 August 2020 which was a contravention of domestic violence order. The appellant updated his profile status making threatening comments about the complainant, SH. The post named SH and contained threats and disclosed her sexual preferences to several friends. This had a significant emotional impact on the complainant SH. The appellant was interviewed on 29 August 2020 and said he didn’t remember posting the comment but went on to say it was true.

“A victim impact statement was tendered as Exhibit 4. The offending caused distress and inconvenience to the complainant SH. She had to move regularly as a result of the conduct of the appellant and suffered defamation to her character. She alleged that total out of pocket expenses was $16,748.84.”

GRP v ABQ [2020] QDC 272 (28 October 2020) – Queensland District Court

‘Appeal against order not to grant a temporary protection order’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Step-children’ – ‘Strangulation’ – ‘Systems abuse’

Proceedings: Appeal against order not to grant a Temporary Protection Order (TPO).

Facts: The appellant man and respondent woman were in a domestic relationship, and each had children from previous relationships. There was a prior history of protection orders ordered against the appellant, with the respondent as the aggrieved. In June 2019, a protection order was made against the appellant to protect the respondent with mandatory conditions and no contact conditions except with the respondent’s written consent. The parties continued to have contact. In August 2019, following a complaint by the respondent to police, the appellant was charged with breach of a domestic violence order, common assault and choking/suffocation/strangulation x 2 (domestic violence offences). He was released on bail. This appeal concerned the appellant’s cross-application for a TPO. In November 2019, the appellant filed a private application for a protection order against the respondent. Four incidents of emotional abuse and one incident of physical abuse (scratches from August 2019) were alleged. The Magistrate declined to make a TPO.

Grounds of appeal:

1.

The Magistrate wrongly decided and erred in law by not granting a TPO.

2.

The Magistrate wrongly decided and erred in fact and law by determining that the appellant’s allegations of domestic violence against the respondent did not satisfy the definition under the Act.

3.

The Magistrate erred by failing to give adequate reasons for not granting the TPO.

4.

The Magistrate erred in fact and law in that he allowed extraneous or irrelevant matters to guide or affect his decision; mistook the facts; and did not take into account material considerations.

Held: An error of law occurred as the Magistrate did not provide adequate reasons namely, the Magistrate’s reasons only referred to the four incidents of alleged verbal abuse, but did not refer to the incident of physical violence alleged in the appellant’s application of November 2019 ([26], [30]). Further, the Magistrate erred when he stated he heard from both the appellant and the respondent in June 2019, as the appellant was not present ([31]). Her Honour set aside the Magistrate’s order.

There was sufficient evidence to warrant granting a TPO in favour of the appellant. Having regard to the temporary nature of the order, her Honour considered that the evidence of alleged physical violence was sufficient to be satisfied of the respondent committing domestic violence against the appellant (at [38]-[40]). A date for the hearing of whether a protection order should be made was already set in the Magistrates’ Court.

ARTE v Nugent & Anor [2020] QDC 268 (23 October 2020) – Queensland District Court

‘Appeal against grant of protection order’ – ‘Miscarriage of justice’ – ‘No prior history of domestic or family violence’ – ‘Ouster condition’ – ‘Protection order’ – ‘Suicide threat’

Proceedings: Appeal against making of a protection order; whether the protection order was necessary or desirable; whether the Magistrate erred in imposing an ouster condition; whether the Magistrate’s conduct amounted to a miscarriage of justice.

Facts: A protection order was made on 3 February 2020 against the male appellant after a contested hearing, including an ouster condition in relation to his female former partner’s usual place of residence.

The first respondent (the police prosecutor applicant for the order at first instance) opposes the appeal but concedes (1) the Magistrate’s reasons for judgment disclose a House v The King (1936) 55 CLR 499 error and (2) it is appropriate for the order to be varied such that the ouster condition is removed.

The second respondent (protected person) is supportive of the appeal and the relief sought. The appellant and protected person were married for 32 years. Prior to 11 October 2019, there had been no previous incidences of domestic violence. The parties were in financial stress after the collapse of a business. On 11 October 2019 the protected person called 000, telling the operator: ‘My husband has gone to the gun cabinet to do a murder suicide…He’s got a gun to kill us.’ The second respondent locked herself in a bathroom. The operator heard the second respondent yell: ‘Get away, get away’. A Police Protection Notice was issued on 11 October 2019, with a condition that the appellant surrender his weapons licence and firearms. An application for a protection order to benefit the protected person was made by the first respondent on 11 October 2019. No ouster condition was sought in the application. On 15 October 2019, the application was adjourned; a temporary protection order was made in the favour of the protected person with the standard conditions.

A protection order was made on 3 February 2020 against the appellant after a contested hearing, including an ouster condition in relation to the protected person’s usual place of residence.

The appellant contended:-

•

The appellant’s conduct did not meet the definition of domestic violence - there was no threat of violence; rather the second respondent was intoxicated, stressed and emotional which resulted in her overacting to a bad joke made by the appellant; and

•

In the alternative, a protection order is not necessary or desirable (i) appellant and protected person lived in the same residence during the term of the TPO and no domestic violence had occurred; (ii) prior to 11 October 2019, there had never been any other act of domestic violence in 32 years of the relationship; (iii) the risk of future domestic violence was remote and not sufficient to establish a need for protection.

On 3 February 2020, the Magistrate heard the application and made the order, delivering ex tempore reasons revealing that each limb of section 37(1) was satisfied and it was appropriate to impose an ouster condition. Central to the Magistrate’s reasoning were three findings:-

1.

the appellant was engaging in victim shaming;

2.

the appellant had not taken any steps to address the underlying reasons for the incident on 11 October 2019; and

3.

the relationship between the appellant and second respondent involved a power imbalance such that the later would subjugate her wellbeing to that of the former.

Grounds of appeal

1.

Did the Magistrate err in holding that it was necessary or desirable to protect the second respondent from domestic violence? Error 1

2.

Did the Magistrate err in imposing an ouster condition under s.63? Error 2

3.

Whether there were irregularities in the conduct of the trial that occasioned a substantial miscarriage of justice? Miscarriage of justice

Held: Order set aside; application remitted to the Magistrate’s Court for a new trial before a different Magistrate.

Error 1 – Did the Magistrate err in finding a protection order was necessary or desirable?

Observing Horneman-Wren SC DCJ in ACP v McAulliffe [2017] QDC 294, s.37(1)(c) invokes a very wide and general power and is to be construed liberally, having regard to s.37(2) and the s.4 principles of the Act. This required the Magistrate to have regard to the wishes and views of the people who fear or experience domestic violence to the extent appropriate and practicable (s.4(2)(b)) [at 27].

At [29], His Honour reflected on the reasons for judgment and stated that the Magistrate was satisfied s.37(1)(c) was engaged because the second respondent was not adversely affected by alcohol and the 11 October 2019 incident was a very distressing one. His Honour noted the reasons did not disclose if the considerations mandated by section 37(2) were taken into account. His Honour found this to be an error of law and warrants the order being set aside.

His Honour also found the Magistrate’s assertion of the existence of the power imbalance and reference to the Duluth model and the power and control wheel had no application to this case and amounted to an error of law.

The first respondent submitted, despite the errors in the reasons for judgment that there was in any event sufficient evidence to find the order was necessary or desirable in the circumstances. His Honour did not agree, finding, at [34], that the evidence going to this very issue is incomplete (see [65] to [85] – no sworn affidavit of the second respondent and there was no application to lead fresh evidence in this appeal).

Therefore, this should be determined in a new trial.

Error 2 – Did the Magistrate err in imposing an ouster condition?

In finding an error had been made by the Magistrate, His Honour noted that an ouster condition had not been sought by the first respondent in the initial application and that the views and wishes of the “aggrieved” had not been sought, as was required by s.64(1).

His Honour considered s.57(1)(a) and s.63 and the mandatory considerations in s.64(1)(a) and (b) regarding whether the aggrieved can safely live in the residence if the ouster is not made and any views or wishes of the aggrieved.

His Honour, at [40], did not accept the Magistrate correctly assessed the risk of future violence occurring and the need for an ouster condition because:

1.

The Magistrate’s earlier finding in relation to the significant power imbalance, in the absence of evidence (an irrelevant consideration); and

2.

The second respondent was not afforded the opportunity to express her wishes by way of sworn evidence (a mandatory consideration).

The exercise of discretion to impose an ouster order miscarried [at 41]. Both errors represent a proper basis for interfering with the exercise of discretion in the manner contemplated by House v The King (this was conceded by the first respondent in relation to (1) above).

Miscarriage of Justice

His Honour agreed there were five irregularities in the conduct of the trial at first instance such to establish a substantial miscarriage of justice:-

1.

The Magistrate spoke about, and directly to, the appellant in terms that were pejorative, and unnecessary, having regard to the evidence in proper context, (at [46] eg accusing the appellant of “bad manners”, calling him the respondent’s “gun-toting husband”);

2.

The Magistrate permitted unfair cross-examination of the appellant, (at [47] not allowing the recording to be replayed at the appellant’s request to clarify his understanding of the question and then describing this as being demonstrative of an uncooperative witness);

3.

The Magistrate was unnecessarily aggressive towards the appellant’s legal representative which adversely impacted upon the proper presentation of the appellant’s case, (at [54] accusing the appellant’s solicitor of professional discourtesy which was not borne out in the transcript);

4.

The Magistrate materially interfered with the conduct of the second respondent’s case, ( at [65] by refusing the second respondent leave to file an affidavit on the day of the hearing);

5.

An exchange between the solicitor for the first respondent and the Magistrate regarding a domestic violence stakeholders group meeting, taken with the other irregularities, is indicative of a reasonable apprehension of bias on the part of the Magistrate.

Osborne v Commissioner of Police [2020] QDC 249 (30 September 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Appellant's belief that his girlfriend and her children were victims of domestic violence perpetrated by the complainant’ – ‘Effect of deportation / visa cancellation on sentencing’ – ‘Non-fatal strangulation’ – ‘Vigilantism’

Charges: Forcible entry x 1; Wilful damage x 1; Assault occasioning bodily harm x 1.

Proceedings: Appeal against conviction and sentence (appeal against conviction abandoned).

Facts: The appellant believed that Ms MB was his girlfriend. Ms MB was in fact in a relationship with the complainant. On the date of the offence the complainant telephoned the appellant and told him that he (the complainant) was in a relationship with Ms MB. The appellant then went to the complainant’s house. He banged on the front door and said, “I’m going to kill you, cunt”; “You want war, brother? You got war.” The complainant approached his front door holding a knife which he had been using to prepare food. A verbal argument ensued, the appellant became enraged and ripped the screen door off the hinges. He lunged at the complainant grabbing him around the shirt. Both the appellant and complainant were cut with the knife during the struggle. The appellant put his left elbow and forearm around the complainant’s neck and pressed it into the complainant’s neck, choking him. The appellant continued to threaten the complainant saying, “I will kill you, cunt”. He did not stop his attack until police arrived. Prior to the incident, Ms MB and her children had told the appellant that there had been episodes of domestic violence committed by the complainant towards her. The appellant said that he went to the complainant’s house to talk to him about his behaviour and to protect the children. The appellant made full admissions to the police. The appellant was admitting to a mental health unit following the incident.

Issues: (1) Whether the sentence was excessive; (2) Whether the magistrate failed to take into account the appellant’s guilty plea and mitigating factors.

Decision and reasoning: Appeal allowed. Appellant resentenced.

The respondent concedes that the magistrate failed to take into account a number of relevant mitigating factors including: the appellant’s mental health condition, the appellant’s physical health, his mistaken belief and the likely consequence of the appellant’s conviction on his visa (see [39]-[41]). The respondent further concedes that the sentence imposed was excessive. There was no reference to any mitigating factors in the reasons of the magistrate, which tends to suggest that he failed to take those factors into account.

ATD v TBC [2020] QDC 236 (17 September 2020) – Queensland District Court

‘Appeal against protection order’ – ‘Domestic violence’ – ‘Female partner respondent subject to protection order’ – ‘Male partner aggrieved party under protection order’

Proceedings: Appeal against protection order.

Facts: The appellant (wife) filed a private application for a protection order against her husband. The respondent (husband) filed a cross application against his wife. In September 2018, a temporary protection order (TPO) was made naming the respondent (husband) as the aggrieved and the appellant (wife) as the respondent. In February 2019, the appellant was described as ‘paranoid, delusional, denigrating towards the respondent, and neglectful of the children’. The appellant also published a number of Facebook posts accusing the respondent of abducting the children and accusing him of being abusive and corrupt. In February 2019, the TPO was amended to prevent the appellant from attending the respondent’s home. In March 2019, the Federal Circuit Court made orders requiring the children live with the respondent, the appellant have two hours of supervised visitation per week, and the appellant commence therapeutic care with a Consultant Psychiatrist. In March 2019, the TPO was amended to prevent the appellant from contacting the respondent or publishing adverse comments about him online. In March 2019, the police referred the appellant to the Acute Care Team due to concerns they held regarding her mental health after she made over 100 unsubstantiated police complaints accusing the respondent of protection order breaches and other criminal behaviour. In May 2019, the appellant breached the TPO by publishing a post on Facebook which suggested the respondent broke into her house and placed a water pistol in her cupboard ‘as a threat that [she] will be killed’. In June 2019, the appellant pleaded guilty to breaches of the TPO. A full list of the appellant’s abusive communications and unsubstantiated allegations are set out in para [15]-[16] of the judgment.

Issues: Whether the magistrate’s decisions making a protection order naming the male former partner as the aggrieved and the female partner as the respondent and dismissing the appellant’s application for a protection order should be upheld.

Decision and reasoning: Appeal dismissed.

There was a proper basis for the Magistrate finding that a protection order was necessary and desirable to protect the respondent from domestic violence.

[74] The appellant has committed numerous acts constituting domestic violence against the respondent over the relevant period. Section 8 of the Act defines domestic violence for the purposes of the Act. It includes behaviour by a person towards another person which is emotionally or psychologically abusive, and behaviour that torments, harasses or is offensive. During the relevant period, the appellant sent abusive and intimidating messages to the respondent, published abusive and malicious Facebook posts, and sent numerous messages denigrating the respondent to others. The email and text communications between the appellant and the respondent clearly show a pattern of the appellant harassing and denigrating the respondent. I have summarized some of examples of these earlier in this judgment. The appellant did not and could not challenge that she had sent the relevant material to the respondent and others. The appellant sent some of this material in breach of a Temporary Protection Order and after being convicted of earlier breaches of the Temporary Protection Order.

…

It is clear from reading the transcript of the original hearing that the appellant continued to express resentment and animosity towards the respondent. Under cross-examination, the appellant refused to accept that she was in any way at fault for sending or posting the abusive and false material. The appellant’s state of mind at the time of the original hearing was relevant as to whether it was necessary or desirable to make a protection order.

[75] At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.

[76] With respect to the appellant’s application for a protection order against the respondent, the appellant has failed to show the Magistrate erred by concluding she could not be satisfied that the respondent had committed any act of domestic violence … other than some verbal abuse during the incident of 29 January 2018. It was open on the evidence for the Magistrate to prefer the respondent’s evidence over the appellant’s evidence. The evidence supported her conclusion that the respondent’s behaviour on that one occasion was out of character. In my view, although the respondent’s verbal outburst on 29 January 2018 may well have constituted emotional or psychological abuse under section 8(1)(b) of the Act, there was no credible or reliable evidence that, prior to or since that date, the respondent behaved in any way which could satisfy a court that it was necessary or desirable to make a protection order against him. The uncontested evidence was that the respondent had made no contact, directly or indirectly, with the appellant except in compliance with Family Court orders.

SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208 (1 September 2020) – Queensland District Court

‘Appeal against making of protection order’ – ‘Appeal against refusal to grant protection order (cross application)’ – ‘Breach of protection order’ – ‘Person most in need of protection’ – ‘Protection order’ – ‘S. 4 of the domestic and family violence protection act 2012’ – ‘Threats to kill’

Proceedings: Appeal against making of protection order and refusal to grant protection order (cross application).

Facts: The appellant and the second respondent were in an intimate relationship for a period of three months between October 2018 and January 2019. Following an incident on 21 January 2019, a Police Protection Notice (PPN) was issued and on 23 January 2019 a temporary protection order (TPO) was made against the appellant. On 29 January 2019, the appellant pleaded guilty to two charges of contravening the PPN.

At the mention of the police application on 17 June 2019, the appellant made a number of serious allegations against the respondent to the effect that she has conspired to have him murdered. The appellant then made an application for a protection order and temporary protection orders were made in each application. At the hearing of the applications on 19 August 2019, the police commissioner was legally represented in relation to the application for the benefit of the second respondent; the appellant was self-represented; and the second respondent did not appear. The Magistrate made an order, pursuant to s.151(2) that the appellant may not cross-examine the second respondent and that this would be the rules of engagement for the resumed hearing on 2 December 2019.

At the resumed hearing on 2 December 2019, the appellant tendered affidavits containing screen shots of various Facebook messages as evidence of his allegations against the second respondent that she had conspired to have him murdered. The second respondent gave short oral evidence by phone, being questioned solely by the magistrate. The magistrate granted the protection order in favour of the second respondent and refused the appellant’s cross application. In making the decision, the magistrate was not satisfied the second respondent was responsible for the threats and accepted the second respondent’s version of events over the appellant’s version.

Issues: Whether the magistrate was correct in determining that, upon identification of the person most in need of protection, it followed that a protection order could not then also be made against that person; whether the cross-applications should be granted.

Held: Appeal against making of protection order dismissed; appeal against refusal to grant protection order (cross application allowed).

The case clarifies the interpretation of s. 4 of the Domestic and Family Violence Protection Act 2012 (the Act). The Act does not exclude orders being made in both cross applications. Cross applications require the consideration of the matters referred to in s.37 and should not be decided on the basis of the principle in s.4(2)(e) (the identification of the person most in need of protection).

Decision on cross applications:

Her Honour considered the evidence and found it clear there was an event of domestic violence perpetrated towards the second respondent by the appellant and was satisfied the circumstances justified a protection order was necessary against the appellant, even when accepting the second respondent was not a reliable witness and prone to exaggeration. This appeal against the making of the protection order was dismissed.

Her Honour then considered the appellant’s application for a protection order against the second respondent, namely the allegations of the threats contained in Facebook messages. Her Honour stated she had no reason to doubt that the messages alleged to have been sent by the second respondent were in fact sent by her. In any event, their authenticity was not challenged. Her Honour found the messages satisfied the requirements of the definition of domestic violence in s.8(1) and s.37(1)(b). In her view, the magistrate should have found it necessary or desirable to protect the appellant from domestic violence and should have made a protection order. The second respondent did not swear any affidavit in response to the appellant’s affidavit alleging serious matters.

EKL v Commissioner of Police & PEL [2020] QDC 194 (12 August 2020) – Queensland District Court

‘Complainant a protected witness’ – ‘Procedural fairness’ – ‘Trial proceeded without the appellant present’

Matter: Protection order appeal.

Facts: Discussion between the magistrate and the prosecutor about the protection order took place in the absence of the appellant and/or his legal representative. The prosecution made an application for the complainant to be a protected witness under the Domestic and Family Violence Protection Act (DFVP Act). The appellant’s legal representative informed the court that they did not have instructions in relation to any matter other than to request an adjournment, which application was refused by the magistrate. The appellant’s representative sought leave to withdraw. The magistrate granted the protected witness application.

Issues: (1) The appellant was not afforded procedural fairness; (2) the Magistrate erred in failing to comply with the DFVP Act; (3) the Magistrate erred in finding that the protection order was ‘necessary or desirable’ in the circumstances.

Decision and reasoning: Appeal allowed, protection order set aside. Application for protection order remitted to magistrate’s court before a different magistrate.

(1) The discussion of substantive matters by the magistrate in the absence of the appellant is a ‘clear breach of the obligation of procedural fairness’ [20]. (2) In prohibiting the appellant from cross-examining the complainant, the magistrate did not comply with the pre-conditions in s 151 of the DFVP Act which include ‘requiring the court to inform the respondent that he could not cross-examine the aggrieved’ [33]. (3) Unnecessary to consider.

R v RT (No 2) [2020] QDC 158 (13 July 2020) – Queensland District Court

‘Assault’ – ‘Judge-only trial’ – ‘Strangulation’ – ‘Weapon’

Charges: Choking x 1.

Proceedings: Judge-only trial.

Facts: The defendant man was charged with unlawfully choking without consent while he and the female complainant were in a domestic relationship.

The complainant’s daughter’s partner intervened. Later, the complainant attempted to pursue a DFV protection order but ‘none of the police to whom she spoke did anything’. The complainant and defendant later reconciled. In December 2017, the defendant is alleged to have ‘put his right forearm across her neck and applied pressure’, pinning down the complainant so that she could not breathe. After the incident, the police attended the house.

1.

During the complainant’s initial conversation with police, she ‘did not describe being choked by the defendant’. The defendant stated that he did not choke her but had held her by her arms/shoulders to ‘settle her down’.

2.

When meeting with a doctor after the incident, the complainant told the doctor she felt safe at home. The doctor gave expert evidence that the complainant’s injuries were consistent with the alleged choking.

3.

The relevant Constable testified that it was not until May 2020 that they were made aware of any allegation of domestic violence prior to December 2017. When asked about allegations of earlier violence, the complainant said that she had raised this with police on numerous occasions. The police were not able to get in contact with the complainant’s daughter’s partner who witnessed the January 2015 incident.

Issues: Whether the evidence of the complainant can be accepted beyond reasonable doubt.

Decision and reasoning: Not guilty.

The defendant argued that there were:

[39] a constellation of features inconsistent with [the complainant’s] account being truthful. These included her demeanour when speaking to police that night, her failure to immediately mention being choked and her preparedness to remain living at the house and tell the Doctor she felt safe.

The judge held that:

[39] The first and last of these matters do not in my view undermine the credit of the complainant. We are far past the days where the law expected an immediate and uncontrolled emotional reaction to an assault, and adversely viewed the credit of those who did not behave as expected. And, as noted above, staying in the house is understandable for other reasons.

However, the judge was not satisfied beyond reasonable doubt that the defendant choked the complainant in December 2017 as alleged. The fact that the complainant did not mention choking at that time raised doubts about the accuracy of her evidence.

[41] … it seems to me to be very surprising that if the complaint had been choked she did not mention that in her first interactions with police on the night. This is especially so if she had been violently assaulted by the defendant in the past, including by being choked or strangled … it seems to me unlikely that a person in the position of the complainant would have failed to mention being choked to the extent and for the duration alleged when first asked to give an account of the events … There is no reason apparent to me why she could not have mentioned or demonstrated the alleged choking at this point.

[42] I do not mean by what I have written to imply there can be any universal judgement as to how alleged victims of domestic violence should behave.

[45] It is impossible to think that an experienced police officer investigating an allegation of choking in 2018 would ignore a claim that a similar event occurred, in front of witnesses, less than three years before … [It is] unlikely that the absence of reference to the earlier incidents was the product of deliberate choice by the police officer, rather than omission by the complainant. It is reasonable to conclude that, having realised failing to refer to the other incidents at an earlier time was to her disadvantage, the complainant sought to deflect this by suggesting it was the fault of the police. That she was prepared to do so substantially damages her credit.

MNT v MEE [2020] QDC 126 (20 May 2020) – Queensland District Court

‘Animal abuse’ – ‘Appeal’ – ‘Coercive control’ – ‘Necessary or desirable’ – ‘Ouster order’ – ‘Protection order’

Matter: Appeal against making of protection order.

Grounds:

1.

A finding of economic abuse was not open on the evidence.

2.

The learned Magistrate failed to properly consider whether it was necessary or desirable to make a domestic violence order.

3.

The learned Magistrate erred in law by making an ouster order.

4.

The learned Magistrate erred in law by failing to provide adequate reasons.

Facts: There was evidence that the respondent’s property had been misused and misappropriated by the appellant since she left the home to live with her son. Examples include removing the respondent’s go-cart from the home and placing it in the weather, telling the respondent which chairs she could sit on, moving the respondent’s clothing and other property from the residence to the garage and into the weather; and having work done on the house without approval from the respondent.

Further, the appellant got into a bed already occupied by the respondent at a time after they had commenced living apart on the one property. The appellant also unilaterally forgave a debt owed by the appellant’s son and the respondent alleged he applied unnecessary force to a horse.

Decision and Reasoning: Appeal dismissed. The way in which the appellant dealt with the respondent’s property, including his failure to rectify damage to the respondent’s property, was considered controlling behaviour in the overall context of the relationship and contributed to the respondent’s fear for her own wellbeing and safety. The various behaviours were aspects of “controlling behaviour or emotional or psychological abuse”. [75-79] The respondent’s account of the incident with the horse was accepted but the court was not satisfied that it constituted violence directed at the respondent.

HBY v WBI and Anor [2020] QDC 81 (14 May 2020) – Queensland District Court

‘Application to set aside interlocutory order’ – ‘Availability of documents at trial’ – ‘Judicial discretion’ – ‘Order that appeal be heard afresh in whole’ – ‘Protection order’ – ‘Unjust order’

Proceedings: Second respondent’s application to set aside interlocutory order that the appellant’s appeal be heard afresh in whole.

Facts: The male appellant and female first respondent (LAP) were in a domestic relationship. The second respondent (WBI), a police officer, issued a protection notice to the appellant in favour of LAP and a protection order was subsequently issued by a Magistrate. The appellant filed a notice of appeal and also applied for an order that the appeal be heard afresh in whole, contending that certain documents were not available at trial that showed that statements made by LAP regarding her financial position were not true (a matter going to her credit). The appellate judge allowed the application. WBI subsequently applied to the Court of Appeal for leave to appeal that order, contending that the documents were in the possession of the appellant at the time of the trial, could have been obtained with reasonable diligence or would not have had an important influence on the rest of the case. The Court of Appeal struck out the application for want of jurisdiction (WBI v HBY and Anor [2020] QCA 24). WBI then made an application for an order that the order that the appeal be heard afresh in whole be discharged and in substitution thereof it be ordered that the appeal be decided on the evidence and proceedings before the court that made the decision being appealed.

Held: Moynihan QC DCJ allowed the application, setting aside the interlocutory order that the appellant’s appeal be heard afresh in whole with the result that the appeal has to be decided on the evidence and proceedings before the court that made the decision. His Honour held that he had jurisdiction to review and set aside an interlocutory order concerning a procedural matter where there was a mistake or irregularity and it would be unjust not to set it aside [12]. In this case, the exercise of the Judge’s discretion (to issue the interlocutory order) miscarried because he took into account facts which were in part erroneous (that is, the Judge was mistaken as to the availability of the documents at trial and the appellant’s opportunity to obtain disclosure of them) [12]. It would be unjust not to set aside the order where the mistake was material and led to such an extraordinary order [12].

His Honour further held that there was "no good reason" (see R v A2 (2019) 373 ALR 214) to order that the appeal be heard afresh in part [21]. The documents would have been available to the appellant at the time of the trial with reasonable diligence, or he was in fact in possession of the documents at the time of the trial [22]-[23].

HDI v HJQ [2020] QDC 83 (14 May 2020) – Queensland District Court

‘Abuse of Process’ – ‘Appeal’ – ‘Non-fatal strangulation’ – ‘Parenting proceedings’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Systems abuse’ – ‘Variation of protection order’

Proceedings: Appeal of a decision to order a permanent stay of an application to vary a protection order.

Issues:

•

Does a Magistrate have power under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) to order a stay of an application under the Act as an abuse of process?

•

Should the application to vary the protection order be allowed, dismissed or referred back to the Magistrates Court for further hearing?

Facts: The male appellant respondent (appellant) and female respondent aggrieved (respondent) were married for 23 years and had two children together. They separated after an alleged incident of choking, the respondent applying for a Protection Order under the DFVP Act. A Temporary Protection Order, including the children as named persons, was granted and the matter was set down for a hearing. The respondent then applied to vary its terms, seeking an order ousting the appellant from the former matrimonial home (this was later dismissed). The appellant then filed a cross application seeking a Protection Order against the respondent, but this was later withdrawn. At the hearing, the Magistrate accepted the respondent’s evidence and rejected the applicant’s version of events regarding the choking incident, making a two-year Final Protection Order. Two applications were then made to vary the Final Order, one by the appellant (to set aside the Order) and one by the respondent after the appellant breached the Order, in response to which a Magistrate made a Second Temporary Order against the appellant. The appellant then made a second application for a Protection Order against the respondent.

At the hearing of these last three applications, the Magistrate ordered that: the appellant was guilty of breaching the Final Order, the appellant’s application to vary be dismissed, the Second Temporary Order be revoked and replaced with a Varied Order, and the appellant’s Second Application for a Protection Order be adjourned. The appellant appealed these orders. At the hearing for the appellant’s Second Application for a Protection Order, the respondent sought that the application be estopped or stayed for abuse of process. The Magistrate agreed that the application constituted an abuse of process and it was permanently stayed.

The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oral application to permanently stay the application to vary on the basis it was an abuse of process, and b) not allowing the application to vary to proceed to full hearing.

Judgment: The judge held that the Magistrate had no jurisdiction to order a permanent stay and therefore that the order to stay had to be set aside as a nullity. Her Honour found that the DFVP Act and Rules provide expressly or by implication for applications that are an abuse of its process to be summarily dismissed by the Magistrates Court, but there is no express reference to a power to stay such proceedings on these bases [75], [77], [83]. After examining several pieces of legislation, Her Honour also found that there was no explicit power to order a stay of an application under the DFVP Act [91], and that such a power did not need to be implied for the effective exercise of the jurisdiction to summarily dismiss applications that are an abuse of court process [94].

However, Her Honour noted that, as an appellate court, it had the power to allow, dismiss or refer the application to vary back to the Magistrates Court [99]. Reviewing all the material before her, Her Honour held that, while there was no basis to allow the application in full, two variations ought to be made to the Varied Order, both minor [103].

Rathbone v Commissioner of Police [2020] QDC 76 (30 April 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Manifestly excessive’ – ‘Mitigating factor’ – ‘People with mental illness’ – ‘Rehabilitation’ – ‘Separation’ – ‘Threats of suicide’

Offences: Contravention of DVO x 7; Wilful damage; Obstruct police officer; Serious assault; Attempted stealing

Proceedings: Appeal against sentence

Issue: Whether the appellant’s sentence was manifestly excessive.

Facts: The appellant man committed a series of offences in the course of an attempt to commit suicide by having police officers shoot him. The offences occurred in the context of the recent and highly distressing breakdown of his marriage. The appellant approached a police officer and assaulted her from behind, restraining her, pushing her against the police vehicle and attempting to remove her firearm from her holster (Attempted stealing). Other police officers intervened and restrained the appellant. He was arrested and later released on bail. After his release, he attended the police station and provided a personal apology and a gift, recognising the distress he caused to the officers.

While the appellant was in custody, his wife obtained a Temporary Protection Order which included a condition that he have no contact with her. He contravened this order and sent his wife short emails or text messages expressing affection for her and his desire to continue their relationship.

The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oThe appellant entered early pleas of guilty to all charges, was convicted and received the following sentences:

•

Contravention of a domestic violence order offences – fined $750 and no conviction was recorded

•

Wilful damage – convicted but no further penalty imposed

•

Obstruct police officer – fined $500 and no conviction was recorded

•

Serious assault – 2 months’ imprisonment, wholly suspended, for an operational period of 9 months and the conviction was recorded

•

Attempted stealing – 3 months’ imprisonment, wholly suspended, for an operational period of 9 months and the conviction was recorded.

The appellant appealed the sentences for Serious Assault and Attempted stealing on grounds that they were manifestly excessive, and the sentencing judge erred by not giving sufficient weight to the sentencing principle of rehabilitation.

Held: The judge allowed the appeal and referred the matter back for re-sentencing, holding that the imposition of a period of imprisonment was manifestly excessive. His Honour accepted that rehabilitation was a significant consideration in this case and the sentencing judge did not appropriately include it in his determination of a proper sentence [68]. Rather, the sentencing judge, by imposing a custodial sentence, "negatived [the rehabilitation considerations], in that they were excluded specifically with regard to their value" [69] and therefore the judge did not "fully consider and balance the issue of rehabilitation, in relation to the penalty imposed" [70].

In considering whether the appeal should be allowed, His Honour accepted a psychiatrist’s report that confirmed a "causal relationship between the appellant’s acute adjustment disorder with suicidal ideation upon the sudden breakdown of his marriage which led to the commission of the offences" [12]. His Honour also accepted that the appellant had exemplary antecedents and there was a negligible need for deterrence and punishment. The appellant further had a reduced moral culpability (having regard to the principles in R v Yarwood [2011] QCA 367).

His Honour ultimately accepted that the appellant’s rehabilitation and employment were likely to be adversely affected by a sentence of imprisonment and the recording of a conviction due to his inability to travel internationally to complete his PhD studies, and his vulnerable psychological state would be adversely impacted by such a sentence [13]. His Honour further concluded that "It was significant that [his two step-daughters – ie: children of his former wife] constituted part of the appellant’s support network available to the appellant" [32].

DYN v Queensland Police Service [2020] QDC 47 (27 March 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Error of law’ – ‘Guilty plea’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Persistent menacing conduct’ – ‘Sentencing considerations’ – ‘Separation’ – ‘Threat to kill’

Charges: Contravening a domestic violence order (aggravated offence) x 2.

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to 2 charges of contravening a domestic violence order (aggravated offence) and was sentenced to 18 months and 12 months imprisonment respectively, to be served concurrently with each other, but cumulative on a term of imprisonment that he was already serving. At the time of the offending, he was separated from the complainant, and was subject to a protection order which required him to be of good behaviour, not to approach the complainant woman within 50m and not to contact her. During their 8-year relationship, they had a child.

Issue: The issues on appeal were whether the sentence imposed was manifestly excessive because the learned magistrate erred by:

•

Placing too much weight on the appellant’s criminal history;

•

Failing to properly take into account the appellant’s plea of guilty by not setting a parole eligibility date at a point sooner than one half;

•

Miscalculating the setting of the parole eligibility date; and

•

Failing to take into account the principles of totality such that the sentence imposed was proportionate to his offending.

Held: Morzone QC DJC allowed the appeal and substituted the terms of imprisonment with 12 months for Charge 1 and 15 months for Charge 2. The appellant contravened the domestic violence order by texting and calling the complainant excessively, and by engaging in physically intimidatory and aggressive behaviour by going to the complainant’s home at night, rushing at her, bashing the window and later making a death threat over the telephone despite police interest. Whilst the offending did not involve physical violence, it was serious in that it involved "persistent menacing conduct in serious breach of the no contact and geographical limiting conditions" of the protection order. His Honour acknowledged the prevalence of domestic violence in the community, and was particularly concerned about the continuation of violence despite police or court intervention by protection orders ([22]-[23]). Further, the appellant’s previous convictions for like offences, especially against the complainant, were found to be an aggravating factor as it showed that his attitude of disobeying the law was not isolated ([26]). His Honour therefore held that imprisonment was the necessary punishment, and that 12 and 15 months imprisonment would provide "appropriate moderation according to the sentencing considerations and balancing aspects of specific deterrence, and further rehabilitative processes serving out the sentence within the community under the auspices of parole" ([31]).

R v Skey [2020] QDC 27 (9 March 2020) – Queensland District Court

‘Choking’ – ‘Evidence’ – ‘Evidence by video-link’ – ‘Pre-recording evidence’ – ‘Special witness declaration’ – ‘Strangulation’ – ‘Support person’ – ‘Victim experience of court processes’

Proceedings: Application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before the commencement of the trial.

Issue: The correct interpretation of s21A of the Evidence Act 1977 (Qld)

Facts: Defendant man was charged with choking his female partner without consent and was convicted and sentenced to imprisonment. A week before trial, the prosecution made an application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before commencement of the trial. The defendant opposed the victim giving evidence over video-link and the pre-recording of her evidence.

Judgment: Cash DCJ made orders permitting the complainant to testify at the trial over video-link and with a support person.

The Court rejected the Prosecution’s submission that "by not enacting a requirement to show likely disadvantage or trauma in section 21A(1)(d), parliament intended there to be a presumption of disadvantage which is itself sufficient to warrant departure from normal procedures". This submission was rejected for two reasons. First, the common law principle "that the defendant in a criminal trial should be confronted by their accuser in order to challenge their evidence was not displaced by s12A". Second, "there is nothing in s21A which compels the conclusion that any of the measures permitted by section 21A(2) are to be adopted automatically for any special witness" [9].

Regarding the order to permit giving evidence via video-link, the judge was satisfied that the capacity of the complainant to give evidence would be improved if she did not give the evidence in the defendant’s presence. The Court rejected the defendant’s submission that the defendant would suffer ‘impermissible disadvantage’ if evidence was given over video-link and provided that there is research to suggest that an average person’s ability to detect lies based on ‘demeanour’ is little better than chance.

The judge rejected the Crown’s request to pre-record the evidence as His Honour "not prepared to assume that a retrial would be such a likely outcome as to justify the order sought" [20].

EPN v Queensland Police Service [2020] QDC 34 (4 March 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Contravening domestic violence order’ – ‘Female offender’ – ‘People affected by substance misuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with poor literacy skills’ – ‘Plea of guilty’ – ‘Property damage’ – ‘Separation’

Charges: Contravening domestic violence order x 1; dangerously operating a motor vehicle x 1

Case type: Appeal against sentence

Facts: The appellant wife offended by contravening a domestic violence order and dangerously operating a motor vehicle, whilst being adversely affected by an intoxicating substance. Both offences arose out of the same incident at the residence of the complainant, the appellant’s estranged husband. The appellant migrated from Thailand and could not read or write in English. On the date of the incident, the appellant attended the complainant’s residence in contravention of the protection order and caused extensive damage to the property by driving her car into the front wall of the house. The appellant pleaded guilty and was ultimately sentenced to 18 months’ imprisonment and 18 months driving disqualification.

Issue: The appellant appealed the sentence on the grounds that it was manifestly excessive because:

•

The learned Magistrate mischaracterised the nature and extent of the offending conduct;

•

The learned Magistrate misdirected himself by considering that appellant offending fell within in the same broad category of the comparative cases; and

•

Taking into account the period of pre-sentence custody, the period of time to be served in actual custody was excessive.

Held: Morzone QC DCJ found that the learned Magistrate mischaracterised the offending as falling in the most serious of categories. Although the appellant used the vehicle as a weapon, it did not fall within ‘the most serious of categories where an offender weaponises a vehicle in a direct personal attack with potential serious injury of an unprotected victim’. The offending occurred in the context of a volatile marriage breakdown, where she moved out of the matrimonial home and went on ‘a rage of wilful destruction of matrimonial assets whilst intoxicated’. The appellant willingly caused extensive damage, with the potential of indirectly causing injury to the complainant. Morzone QC DCJ held that the offending was aggravated by her intoxicated state, domestic violence and contravention of the protection order ([33]).

Further, the learned Magistrate referred to 5 cases in his decision as to the appropriate penalty. Morzone QC DCJ considered each case in light of the appellant’s offending ([40]-[50]. The cited cases were distinguishable from the appellant’s offending as they involved the serious feature of a direct personal attack with a vehicle being used as a weapon on an unprotected victim. As the applicant’s offending did not fall within the same serious category, such cases could not provide any comparative guidance ([50]).

Morzone QC DCJ also held that the learned Magistrate erred by failing to take into account some material considerations and the suitability of a suspended sentence ([64]). His Honour considered the nature and extent of the offending and mitigating factors, such as lack of criminal history, good character, guilty plea, demonstrated remorse, and cooperation with police. Whilst the appellant clearly ‘deserved’ a prison sentence, which would further the sentencing principles of punishment, and personal and general deterrence, the learned Magistrate ought to have considered the possibility of a suspended sentence. The appellant’s conduct was contextual and situational, she did not require close supervision upon release into the community, and she actively took steps to self-rehabilitate and refrain from alcohol ([63], [71]).

Consequently, Morzone QC DCJ allowed the appeal and varied the sentence by making the prison term partly suspended after the appellant serves 60 days imprisonment.

BKA v Commissioner of Police [2020] QDC 10 (19 February 2020) – Queensland District Court

‘Breaches of protection orders’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Lengthy criminal history’ – ‘Protection order’ – ‘Sentencing considerations’

Charges: 1 x contravention of a Domestic Violence Order (DVO)

Case type: Appeal against sentence

Facts: The appellant man was convicted, on his own plea of guilty, of one offence of contravention of a DVO, and was sentenced to a term of 6 months’ imprisonment, cumulative on the terms of imprisonment he was then serving relating to domestic violence offences against the same woman. The contravention in question was attending the home of his former partner (the protected person) when subject to a protection order. She was clearly scared, being found by attending police hiding in a manhole in the ceiling. The present offending occurred whilst on parole and very shortly after being granted parole ([16]).

The appellant had an ‘unenviable criminal history’ and had been imprisoned for drug and violent offences, and had been re-sentenced on numerous occasions for breaches of bail, suspended sentences and an intensive correction order ([8]).

Issue: The sentence was manifestly excessive. Three specific errors were alleged:

•

The learned Magistrate erred by not inviting submissions on a cumulative sentence

•

The learned Magistrate failed to take into account the totality when setting the parole eligibility date; and

•

The learned Magistrate erred by setting a parole eligibility date at the full-time date of the appellant’s current sentence.

Although the submissions largely focused on the parole eligibility date, it was also contended that the head sentence should have been ordered to be served concurrently ([2]-[4]).

Held:

Byrne DCJ allowed the appeal, set aside the order of the sentencing Magistrate insofar as it related to the appellant’s parole eligibility, and ordered that the appellant be eligible for parole on the date of the delivery of the judgment instead ([27]). Byrne DCJ accepted that it was an error to impose the cumulative sentence without first inviting submissions as to that possibility. It was noted at [18] that the Magistrate raised concerns about imposing another suspended sentence given the appellant’s past history of breaching such orders, but did not raise the possibility of ordering that the term be served cumulatively on the current period of imprisonment. According to Byrne DCJ, if the Magistrate did this, it would inevitably have elicited submissions as to the appropriate point for parole eligibility. It could not be said that this was an ‘error without consequence’.

The offending clearly affected the aggrieved’s safety and welfare, although the appellant did not inflict any actual physical violence on her on that occasion. Given that the offending occurred so soon after the appellant had been released on parole for offending involving the same woman, and in light of the need for specific deterrence given the appellant’s history for breaching court orders, Byrne DCJ held that a head sentence of 6 months cumulative on the period of imprisonment the appellant was already serving was appropriate ([19]). However, the extension of the parole release date was excessive, especially in light of the head sentence of 6 months. His Honour considered that this in itself would be sufficient grounds to allow the appeal ([21]). The lengthy deferral of the parole eligibility date failed to reflect the appellant’s guilty plea, that he did not inflict any physical violence and that he had served about 3 months of pre-sentence custody that could not be declared as time already served under the sentence ([24]).

Baker v Queensland Police Service [2019] QDC 258 (17 December 2019) – Queensland District Court

‘Animal abuse’ – ‘Domestic violence order’ – ‘History of contravention’ – ‘Mitigating factors’

Charges: Contravention of a domestic violence order (aggravated offence) x 1; Possessing dangerous drugs x 4; Failure to appear in accordance with an undertaking x 1.

Case type: Appeal against sentence

Facts: The appellant was convicted and sentenced for contravening a domestic violence order during the operational period of a suspended sentence. He was also sentenced in relation to other drug and violence offences. The appellant hit the aggrieved (whom the order was made in favour of) during an argument. The strike caused a small cut to her lip. The appellant then left the address but shortly returned holding a crate and threatened to bash her dog. The couple had another argument later in the evening before the aggrieved escaped and called police. The appellant denied being at the address and hitting the aggrieved when later questioned.

The appellant filed his notice of appeal five weeks late. The delay was not significant and was caused by the appellant’s attempts to seek legal advice.

Issue: Whether the sentence imposed was excessive.

Decision and reasoning: The court found that the sentence was not excessive and dismissed the appeal.

The appellant relevantly argued that the contravention offence was his first breach of a domestic violence order against this particular complainant however, Fantin DCJ observed at [41] ‘The fact that this was the appellant’s first contravention against this particular woman is not a matter in his favour. What is relevant is that he had previously been convicted on earlier occasions of breaching domestic violence orders and of domestic violence offences, but continued to reoffend.’

CTC v Commissioner of Police [2019] QDC 250 (29 November 2019) – Queensland District Court

‘Domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical harm and violence’ – ‘Pregnant people’ – ‘Separation’ – ‘Sexual and reproductive abuse’

Charges: Contravention of a domestic violence order

Case type: Appeal against sentence

Facts: The complainant and applicant were married but did not live together. The complainant was pregnant with their second child at the time of offending and there was a domestic violence order in place preventing the applicant from engaging with the complainant in any way without her consent. On the day of the offending, the applicant had become enraged and assaulted the complainant after finding communications between her and another male on her phone. The attack left the complainant with a swollen and cut lip.

The applicant pleaded guilty to the charge and was originally sentenced to three months imprisonment wholly suspended for two years with the conviction recorded.

•

The sentence was manifestly excessive;

•

The learned magistrate erred in failing to have proper regard to the principles of ‘parsimony’; and

•

The learned magistrate failed to give due weight to the appellant’s mitigating circumstances.

Issues: Whether the sentence was manifestly excessive and whether the magistrate erred in his reasoning.

Decision and reasoning: Jarro DCJ concluded that the sentence imposed was not excessive.

Ground 1: ‘The applicant came before the court with a relevant criminal history. He is a mature man. He used actual violence and a physical injury was sustained by the complainant, albeit of a limited nature. The offending was aggravated as the complainant was 23 weeks pregnant at the time and the violence was unprovoked’ (pg 5). In considering these aggravating features and the need for general deterrence to be reflected in the sentence given the prevalence of domestic violence in the community, Jarro DCJ considered the sentence imposed to be within the appropriate range.

Ground 2: Jarro DCJ provided that ‘the principle of "parsimony" is not a governing principle used in the exercise of discretion in sentencing and therefore the sentencing judge was not in error by not having regard to the principle.

Ground 3: Jarro DCJ found that the magistrate appropriately balanced the applicant’s mitigating circumstances against the applicant’s aggravating factors and the need for deterrence.

AMB v TMP & Anor [2019] QDC 100 (21 June 2019) – Queensland District Court

‘Children’ – ‘Emotional and psychological abuse’ – ‘Insults’ – ‘Protection order’

Charges: Domestic violence charges, resulting in a Domestic and Family Violence Protection Order

Case type: Appeal against making of order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)

Facts: The appellant challenged a decision made pursuant to s 37 Domestic and Family Violence Protection Act 2012, granting the aggrieved a protection order for 5 years. The order was made after a contested hearing. The aggrieved claimed that she was not in a relationship with the appellant, but that they had a daughter. Her affidavit provided details about her contact with the appellant, which involved insults by him and several unpleasant interactions, including via text ([16]).

Issue: The appellant appealed the decision on the ground that the learned magistrate erred in finding that 1) the appellant committed domestic violence against the aggrieved within the meaning of Part 2, Division 2 of the Act; and 2) the protection order was necessary or desirable to protect the aggrieved from domestic violence pursuant to s 37 of the Act.

Held: The appellant submitted that the evidence did not support a finding of domestic violence, and that the magistrate erred in relying on the evidence as the credit of the aggrieved was fatally damaged ([23]-[24]), [35]).

Kent DCJ dismissed the appeal. The magistrate’s analysis relied on uncontentious matters. Given the fact that the appellant did not deny sending the various text messages and that they clearly showed insulting language, the credit of the aggrieved was not central to the analysis and result ([35]). It was somewhat difficult to assess whether the events constituted domestic violence in the form of emotional abuse because there appeared to be a mutual exchange of insults between the parties ([36]). Where the communication between the parties involves the ‘trading’ of insults, it is more difficult to conclude that mere insults amount to ‘emotional abuse’. In his Honour’s opinion, insults ‘fall on a continuum of seriousness, from completely trivial to very serious; and at a certain point on the continuum it becomes clear that emotional abuse is involved’ ([37]).

The Court held that there was no appealable error by the magistrate. There was no error demonstrated in any step set out in MBE v MLG in that: 1) there was a risk of future domestic violence, which was more than a mere possibility; 2) there was a need to protect the aggrieved from that risk; and 3) an order was necessary or desirable, particularly considering the factors in s 4(1) ([41]).

CSN v The Queensland Police Service [2019] QDC 43 (3 April 2019) – Queensland District Court

‘Imprisonment’ – ‘Obstruct police’ – ‘Protection orders’ – ‘Sentencing’

Charges: Obstruction of a police officer x 1.

Case type: Appeal against sentence.

Facts: The appellant pleaded guilty to one charge of obstructing a police officer, for which he was sentenced to 4 months’ imprisonment with immediate parole release. It was alleged that the appellant made previous threats to kill his ex-wife and daughter. When the police came to his house to serve him with a police protection notice, he became aggressive and verbally abusive. The police feared a risk of serious injury, even though the appellant was not armed. He fled the property, maintaining that ‘he was not going to be served with anything and was throwing his phone away’. When he returned to the property, he continued to be abusive towards the officers. He was restrained and arrested for obstructing police ([5]-[9]). The Magistrate regarded the offence to be ‘amongst the most serious of obstruct police charges, given the facts presented here and the escalation of the situation’, and sentenced the appellant to 4 months’ imprisonment with an immediate parole release ([20]-[21]). The appellant appealed against the sentence on the ground that it was manifestly excessive and that the Magistrate had overestimated the seriousness of his offending behaviour.

Issue: The issue is whether the sentence that the Magistrate imposed was excessive having regard to the circumstances of the offending, the appellant’s antecedents, his prior criminal history, his mental health issues, his endeavours to rehabilitate and other relevant sentencing principles and guidelines ([29]).

Held: McGinness DCJ noted the appellant’s extensive criminal history, which commenced when he was a child and included breaching domestic violence orders, common assault and stalking ([10]). The offence was found to have serious features, including the nature of the appellant’s verbal abuse, his actions of leaving the property and saying he would continue to refuse service of the protection order. However, the Magistrate’s finding that the offence was ‘amongst the most serious of obstruct police charges’ was an error which led to the sentence imposed being excessive ([31]). The appellant did not physically struggle with the police, and complied with police directions once he returned to the house. He also was not armed. His Honour noted that the offending must be viewed against the appellant’s mental health issues at the time of offending, and childhood histories of sexual abuse at the hands of authoritative figures in a custodial setting. Other relevant factors include his genuine efforts to receive treatment and rehabilitate ([32]). Therefore, because of his criminal history, financial circumstances and his continuing efforts to rehabilitate, a probation or community service order would have been within range. His Honour allowed the appeal, and varied the sentence to 2 months’ imprisonment suspended forthwith for operational period of 2 months. Even though, at first glance, this order could be mistaken for ‘tinkering’, his Honour maintained that reducing the sentence to 2 months was substantial ([33]).

JWD v The Commissioner of Police [2019] QDC 29 (8 March 2019) – Queensland District Court

‘Bail’ – ‘Breach protection order’ – ‘Double jeopardy’ – ‘Double punishment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Technology facilitated abuse’

Charges: Four charges including stalking and using a listening device in breach of a domestic violence protection order, and breach of a bail condition.

Case type: Appeal against conviction. Application for extension of time.

Facts: The applicant and complainant had previously been in a relationship. The first charge related to the use of a listening device to record a private conversation, which the applicant installed in the complainant’s vehicle during the course of their relationship. The final three charges occurred when the relationship had apparently ended. As the complainant prepared to go to sleep one night, she noticed the applicant standing on her patio, peering through a bedroom window. The behaviour was in breach of a domestic violence protection order and constituted stalking. Further, it was aggravated by being in breach of court orders ([9]-[12]).

The Magistrate took into account the fact that the applicant was 47 years old, had no relevant criminal history and was a New Zealand native. He obtained a tertiary qualification and stable employment. He also had a number of positive references attesting to his good character and sought counselling while in custody. Her Honour placed the applicant on three years’ probation. No conviction was recorded, except for the offence of unlawful stalking, as it was the most serious charge ([14]-[16]).

The applicant sought an extension of time within which to appeal, arguing that the delay was attributable to administrative error and was relatively short ([5]). It was argued that the three concurrent probation orders in relation to the stalking, contravention of the domestic violence order and breach of bail, amounted to double punishment contrary to s 16 of the Criminal Code (Qld).

Issues: Whether the sentence was manifestly excessive and offended the prohibition on double punishment for the same act.

Decision and reasoning: The Court allowed the appeal and granted the extension of time. The Court held that the Magistrate’s conclusion as to recording of a conviction was free from appealable error. The probation orders for the contravention of a domestic violence order and breach of bail condition were set aside as double punishment. The applicant was convicted and not further punished. Moreover, the sentencing discretion was found to have miscarried in relation to the offence of using a listening device – an offence with a maximum penalty of only two years’ imprisonment and which was relatively minor in the circumstances. The sentence imposed for that offence was reduced from three years’ probation to two years’ probation, with no conviction recorded ([22]-[25]).

CBC v Queensland Police Service [2019] QDC 3 (30 January 2019) – Queensland District Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Female perpetrator’ – ‘History of domestic violence’ – ‘Parole eligibility date’ – ‘Parole release date’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Victim as (alleged) perpetrator’

Charges: 1 x grievous bodily harm, 1 x assault occasioning bodily harm, 1 x contravention of a Domestic Violence Order (DVO), and a further contravention of a DVO (aggravated)

Case type: Appeal against sentence

Facts: In 2016, the appellant, an Aboriginal woman, was convicted on her guilty plea to domestic violence related offences, namely, grievous bodily harm, assault occasioning bodily harm, contravention of a DVO and a further contravention of a DVO (aggravated offence). When the appellant was released from parole, she formed an intimate relationship with the aggrieved. Their relationship was characterised by alcohol-fuelled domestic violence, which led to its termination ([5]-[7]).

A protection order was issued in 2018, prohibiting the appellant from "following or approaching the aggrieved". The appellant breached this order by attending the aggrieved’s home while he was inside ([9]). The Magistrate sentenced the appellant to 1 month imprisonment to be served cumulatively upon a pre-existing 3 year sentence, with immediate release on parole. The prosecution applied to reopen the sentence on the basis that a parole eligibility date was required by s 160C Penalty and Sentences Act 1992 (Qld). The sentence was reopened in the appellant’s absence and without hearing further substantive submissions about the offending conduct and mitigating circumstances. The Magistrate amended the sentence by fixing a parole eligibility date in lieu of a parole release date ([12]). The appellant was arrested and returned to custody ([13]).

Issue: The appellant appealed the sentence on the grounds of manifest excessiveness. Other grounds were raised in her submissions, such as breach of natural justice and jurisdiction to reopen the sentence ([14]-[15]).

Held:

In Morzone DCJ’s view, the Magistrate ‘erred in exercising the sentencing discretion by initially mistaking the facts, then allowing erroneous or irrelevant matters to guide or affect him in re-opening the sentence without regard to matters of totality, and failing to take into account some material considerations as to the nature and extent of the offending’. The sentence was therefore unreasonable and plainly unjust ([37]). While the appellant had previous convictions for serious violent offences, and had reoffended while on parole for those offences, her offending was comparatively trivial and did not involve actual contact with, or any violence towards, the aggrieved ([42]). However, she has found herself in prison as a result of her ongoing alcohol mismanagement. The current offending was at the lowest end of the range, and imprisonment was found to be disproportionate to the seriousness of the offending and ‘too crushing’ on the appellant ([44]). Consequently, the appeal was allowed and the Magistrate’s orders were set aside. The appellant was convicted, but not further punished for the offence ([45]).

ODE v AME [2018] QDC 277 (13 December 2018) – Queensland District Court

‘Application for a stay of judgment’ – ‘Principles as to grant or refusal’ – ‘Stay of proceedings’ – ‘Systems abuse’

Appeal type: application for a stay of a judgment given in the Magistrates Court.

Facts: On 20 September 2018, Magistrate Strofield declined to grant a protection order for the benefit of the applicant (ODE) against the respondent (AME) on the basis that his Honour wasn’t satisfied that it was necessary or desirable to make one, as required under s 37(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [3]). ODE appealed that decision to the Queensland District Court; she filed a notice of appeal on 9 November 2018 and within it outlined seven grounds of her appeal (see [5]). On that same date, a stay application was brought in the form of an application for a temporary protection order pending hearing of the other appeal. Judge Richards stayed the decision of Magistrate Strofield on 9 November until 23 November 2018 at which time Judge Koppenol dissolved the stay order (see [6]-[7]). This was likely due to the fact he wasn’t satisfied the appeal was of any merit (see [6]-[7]). A further stay application was filed on 6 December 2018 with the aim of extending the temporary protection order until the appeal by staying Magistrate Strofield’s decision to refuse to make a final protection order ([8]).

Issues: The applicant sought a stay on two main grounds. First, her affidavit (filed on 6 December 2018) extended on the points raised in her notice of appeal concerning the merits of her appeal. Second, the respondent had perjured himself in the proceedings before the Magistrate.

Decision and reasoning: application dismissed, appellant restrained from making any application in relation to the proceeding without leave from the court, and the appellant was ordered to pay the respondent’s costs of the application.

As to the first ground of appeal, Porter QC DCJ explained to the applicant that where a party has applied for a stay but failed and then applies again, it is usually required that the party establish some new matter that has emerged since the last refusal to “justify a second bite at the cherry” ([11]). The applicant accordingly pointed to two matters. The first was that since the judgment on 23 November 2018, the respondent had committed further acts of domestic violence by not returning certain belongings to her (see [8]). Porter QC DCJ dispensed with that matter in stating that the respondent’s conduct didn’t comprise acts of domestic violence and noting the respondent’s actual willingness to return the belongings (see [13]). The second point was that the emails relating to the couple’s daughter and her recent experience in hospital indicate the respondent was involved in acts of domestic violence. After examining the relevant extracts in the circumstances of the case, Porter QC DCJ could see no way in which they would amount to domestic violence on the respondent’s part as defined in the DFVPA.

Finally, his Honour couldn’t see a way in which it could be concluded there was perjury arising out of the proceedings before the Magistrate.

CPD v Ivamy & Anor [2018] QDC 244 (5 December 2018) – Queensland District Court

‘Appeal against protection order’ – ‘Family law’ – ‘Necessary or desirable test’

Appeal type: appeal against a protection order.

Facts: On 28 October 2015, in seeking parenting and property orders, the second respondent brought Family Court proceedings against the appellant. An incident on 1 November 2015 led to the making of a temporary protection order on 3 November 2015; the second respondent and the couple’s two children were named as the aggrieved. The order included the respective usual conditions: a “no contact” condition and an “ouster” condition under ss 56, 57 and 63 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [21]). There was, however, an exception that allowed for communication via text between the appellant and second respondent with the appellant’s mother acting as the conduit between them (see [21]). The appellant soon applied to vary the order to remove the children’s names ([22]). The application was heard by the Magistrate on 9 December 2015; the second respondent consented to the variation but the police prosecutor denied ([24]). On 18 February 2016, following a mediation in the Family Court proceedings, a resolution as to the parenting and property orders was reached. 11 days later, final consent orders were made by the Family Court to the effect that the original exception to the order was removed and replaced with an allowance for direct communication via email. Both parties also agreed to try to remove the protection order. However, the police prosecution refused the second respondent’s application to remove the order. On 11 March 2016, the domestic violence hearing listed to commence on 14 March 2016 was adjourned so as to provide the appellant with the opportunity to make submissions for the discontinuance of the order. After a four-day summary trial, extending over March and April 2017, the Magistrate gave ex tempore reasons on 10 November 2017 and ultimately granted a five-year protection order against the appellant (see [34]-[47]).

Issues: the appellant’s grounds of appeal were two-fold. First, the Magistrate erred in finding that the emails sent by the appellant’s mother and the conduct of the trial by his counsel constituted further acts of domestic violence. Second, the protection order was not necessary or desirable to protect the second respondent and the children from the appellant.

Decision and reasoning: appeal allowed and the protection order was therefore set aside and the matter was remitted to another Magistrate for re-hearing.

His Honour, after reviewing the exchange of emails between the appellant’s mother and second respondent, concluded that the Magistrate’s finding that the appellant was behind the tone and wording of the emails was based on speculation and not open on the evidence (see [50]-[57]). As to the second part of this ground of appeal, his Honour expressed the view that counsel is entitled to exercise their discretion on how to handle a matter and the Magistrate’s characterisation of the appellant’s counsel’s cross-examination of the second respondent as an act of domestic violence was erroneous. The first ground of appeal was therefore allowed.

The second ground of appeal was allowed. His Honour felt that the Magistrate, in coming to their finding on the necessary or desirable condition, failed to consider the material matters such as the fact that the tension between the Magistrate’s courts undertakings and the Family Court had resolved in April 2017 and the appellant’s mother was no longer acting as a conduit and thereby no longer “inflaming” the relationship (see [66]). Accordingly, his Honour concluded that the Magistrate erred in granting the protection order.

NVZ v Queensland Police Service [2018] QDC 216 (12 November 2018) – Queensland District Court

‘Breach of domestic violence order while in custody’ – ‘Factors affecting risk’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Threat to kill’

Charges: Contravening a domestic violence order x 1.

Appeal type: Appeal against sentence.

Facts: During proceedings before the Magistrates Court in which a temporary protection order was made, the appellant threatened to kill the aggrieved and her children. The appellant pleaded guilty to one charge of contravening a domestic violence order. He was sentenced to nine months’ imprisonment with an immediate parole eligibility date and 36 days of pre-sentence custody declared as time served. The appellant appealed against the sentence on the basis that it was manifestly excessive.

Issues: The appellant submitted that the sentence was excessive having regard to his psychiatric condition, the principles of totality and the comparable case tendered by defence which, in combination with his personal circumstances, supported a shorter head sentence.

Decision and reasoning: The appellant relied on R v Goodger [2009] QCA 377 as justification for a reduction in sentence because of his reduced moral culpability. However, that case was not authority for the proposition that the sentence must be reduced by reason of a psychiatric condition [50]. Kefford DCJ held that there was no compelling evidence that the appellant’s condition at the date of sentencing meant that continued incarceration would have more of an impact on the offender than it would on a person of normal health. There was nothing to suggest that there was a serious risk that imprisonment would have adverse effects on the appellant’s mental health. Accordingly, the sentence imposed was not excessive in the circumstances, even though the offending occurred at a time when the appellant could not act on the threats made (as he was in custody) ([71]).

The appellant’s criminal history illustrated his general disregard for the law and court orders. An aggravating circumstance was the fact that he offended whilst in the confines of a court room, demonstrating disrespect not only for the complainant but also the Court ([72]). The sentencing principle of protection to the Queensland community from the offender was significant, given the appellant’s vulgar and bold threats to the aggrieved in the presence of the Court. No submissions were made that indicated that the appellant had taken steps towards rehabilitation. The Court made reference to Singh v Queensland Police Service [2013] QDC 037, but did not regard that the decision was evidence that the sentence in the present case was excessive. That case was distinguishable because there were no prior convictions for violence or contraventions of a domestic violence order. It also did not involve the aggravating feature of a threat to kill delivered to the aggrieved and her children in the presence of the court.

Caddies v Birchell [2018] QDC 180 (4 September 2018) – Queensland District Court

‘Assault’ – ‘Bail’ – ‘Extra-curial punishment’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Assault occasioning bodily harm x 1.

Appeal type: Appeal against sentence.

Facts: The appellant was convicted of assault occasioning bodily harm (domestic violence offence), following a two-day trial. Prior to sentencing, he lodged an appeal against conviction. Subsequently, the Magistrate sentenced the appellant to 18 months’ imprisonment on the basis that the appellant serve one half of that term in prison. The appellant appealed against this sentence and was granted bail pending the hearing. The grounds of appeal included that the sentence was manifestly excessive and that the Magistrate failed to (1) identify whether he took into account the extra-curial punishment the appellant received during the offence, in particular the broken foot caused by the complainant; (2) indicate how that extra-curial punishment was taken into account in the sentencing process (if he did take it into account); and (3) consider the appellant’s offer of compensation.

Issues: Whether the sentence was manifestly excessive; Whether the sentencing discretion should be re-exercised to take into account the appellant’s injuries; Whether the appellant’s injuries are capable of constituting extra-curial punishment; Whether the sentencing discretion should be re-exercised to take into account the offer of compensation.

Decision and reasoning: The Court was satisfied that the errors identified vitiated the sentence imposed by the Magistrate. There was no explanation as to the Magistrate’s consideration of extra-curial punishment and how it was taken into consideration with regard to the penalty that was imposed. There was also no explanation as to the basis upon which the Magistrate found that there was a complete lack of remorse. The Court concluded that the Magistrate fell into error when he determined that a sentence of 18 months’ imprisonment was the appropriate penalty. Having referred to comparable cases, such as R v RAP [2014] QCA 228, the Court held that the imprisonment term of 18 months was manifestly excessive. In R v RAP, Justice Wilson held that, in the case of a serious assault in a domestic setting, a sentence of imprisonment for two years or more is, ‘plainly within the proper sentencing range’ and ‘far from excessive’. Similarities between the two cases include the ages of the appellants, their prior criminal records and their otherwise good character ([47]). Although the complainants in both cases suffered physical and psychological injuries, the injuries sustained by the complainant in RAP were more significant. RAP also involved a plea of guilty, whilst this was a matter determined following two days of hearing. Reference was also made to a considerable number of cases with regard to the range that should be considered in relation to a penalty to be imposed, such as R v Pierpoint [2001] QCA 493, R v Johnson [2002] QCA 283, R v Von Pein [2001] QCA 385, R v Fairbrother; ex parte Attorney-General [2005] QCA 105, R v King [2006] QCA 466, R v George [2006] QCA 1 and R v Roach [2009] QCA 360. These cases clearly showed the considerable range of penalties and the need for an independent exercise of discretion. In light of the circumstances of this case, the appeal was allowed, the sentences set aside, the hearing adjourned for sentence on a date to be fixed and the bail enlarged.

RCK v MK [2018] QDC 181 (6 August 2018) – Queensland District Court

‘Adjournment of application for protection order’ – ‘Costs’ – ‘Procedural fairness’ – ‘Protection order’ – ‘Sufficient evidence to justify protection order’

Appeal type: appeal against a protection order.

Facts: At the first hearing of the proceeding, on 9 November 2017, the Magistrate considered it unnecessary to grant a temporary protection order and therefore remanded the matter to 16 November 2017. On that later date, the matter was listed for further mention and management on 18 January 2018. At this hearing, neither the parties nor their representatives were present with the exception of the aggrieved’s representative. Ultimately, the magistrate made a protection order for a period of five years in identical terms to an order made for a separate but related family matter involving the aggrieved and her brother (see [27]).

Issues: the significant grounds of the appeal, which turned upon matters of procedure, were two-fold. First, the Magistrate erred in not adjourning the application under s 39(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). Second, the Magistrate erred in finding that there was sufficient evidence to justify that the appellant had committed domestic violence against the respondent or that a protection order was necessary or desirable under s 37(1)(c) of DFVPA.

Decision and reasoning: the appeal was allowed. The protection order was set aside, the proceeding was remitted to the Domestic and Family Violence Court to be heard and determined according to law, and each party was ordered to bear their own costs in the appeal.

As to the first ground, the material question posed by Morzone QC DCJ was whether the respondent was denied the opportunity to be heard by the application proceedings in circumstances where it had been previously set for mention only. Applying the relevant authority on this particular issue of procedural fairness (see [37]), Morzone noted there was no adequate and reasonable explanation for the respondent’s absence. Furthermore, Morzone QC DCJ outlined six material elements of the case that his Honour believed the Magistrate ought to have considered in deciding whether to proceed to hearing or grant an adjournment (see [40]). In failing to consider these features of the case, the Magistrate was said to have misdirected herself in proceeding to hearing with the consequence that the orders ultimately made were unreasonable (see [41]).

Given the conclusion Morzone QC DCJ reached as to the above ground of appeal, his Honour considered it unnecessary to consider the second ground of appeal (see [43]).

Recognising that it would be inequitable for the respondent to bear the costs of the appellant’s success, Morzone QC DCJ ordered that each party ought to bear their own costs in the appeal (see [53]).

ECW v ECW [2018] QDC 166 (3 August 2018) – Queensland District Court

‘Child welfare’ – ‘Family law issues’ – ‘Hearing of the variation application according to law’ – ‘Lack of preparation’ – ‘Protection order’ – ‘Variation of a temporary protection order’

Appeal type: appeal against variation to temporary protection order.

Facts: A temporary protection order was issued against the applicant (Mr ECW) for the benefit of the respondent (Ms ECW) and the couple’s three children. A protection order was later made before Mr ECW applied to remove two of the children as named persons protected under the order and vary, among others, orders 3 and 8. The acting Magistrate made variations to orders 3 and 8 while dismissing the variation to the persons named in the order. Mr ECW appealed against this decision.

Issues: did the acting Magistrate fail to hear and determine Mr ECW’s application for a variation to the protection order according to law?

Decision and reasoning: the appeal was allowed and the matter was remitted to the Magistrate’s Court, to be heard and determined, according to law.

Horneman-Wren SC DCJ revealed a number of issues with the way in which the acting Magistrate heard and determined Mr ECW’s application.

As observed by his Honour, s 91(2)(a) of DFVPA provides that before a Court can vary a protection order, the court must consider the grounds set out in the application for the protection order. However, his Honour recognises that the opening remark of the Magistrate – “Okay. So, whose application is this?” – demonstrates that the Magistrate hadn’t read the grounds for the application or the materials filed by each party prior to the hearing. His Honour further noted that a plain reading of the transcript would highlight that the Magistrate didn’t read the application or affidavit materials at any stage during the hearing.

Horneman-Wren SC DCJ also recognises that the Magistrate erred in dismissing the proposal to remove the two children from the order on the basis that they were matters for the Family Court and not for her Honour (see [32]). His Honour clarifies that the matter was not a matter for the Family Court but for her Honour (see [33]).

The matter was remitted to the Magistrate’s court, as opposed to Horneman-Wren SC DCJ conducting the appeal as a fresh hearing, since his Honour was of the opinion that Mr ECW was entitled to have his application heard and determined in the Magistrates Court and to have appeal rights. Conducting the appeal as a fresh hearing would mean, by virtue of s 169(2) of the DFVPA, that Mr ECW would not have any such appeal rights (see [38]-[39]).

His Honour did not set aside the Magistrate’s variation of orders 3 and 8 since the parties agreed that those variations ought to remain in the interim ([41]).

JMM v Commissioner of Police [2018] QDC 130 (6 July 2018) – Queensland District Court

‘Appeal against sentence’ – ‘Breach domestic violence order’ – ‘Breach of procedural fairness’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive sentence’

Appeal type: appeal against sentence.

Facts: On 4 August 2016, a protection order was made under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) against the appellant for the benefit of the aggrieved, her de facto partner, and her three children. The order only contained the standard conditions pursuant to 56 of DFVPA including a condition that the appellant must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence. On 8 November 2018, one of the appellant’s children verbally provoked the intoxicated appellant and pointed a knife at her. The aggrieved disarmed the child, kicked him in the bottom and chased him across the street. Two witnesses recount the aggrieved and appellant hurling verbal abuse at the child. The appellant’s conduct fell within the definition of “domestic violence” under s 8 of the DFVPA since it could be classified as “emotionally or psychologically abusive” (see [45]). Accordingly, the appellant was later charged and convicted of contravention of the protection order in the Magistrate’s court. She was sentenced to 3 months imprisonment. The appellant appealed against this sentence.

Issues: the grounds of the appeal were two-fold: sentence was manifestly excessive and there was a breach of procedural fairness in the magistrate not inviting submissions on imprisonment.

Decision and reasoning: appeal allowed and the sentence was therefore set aside.

The second ground of appeal was allowed. His Honour stated that the magistrate erred in denying the appellant’s solicitor the opportunity to address her on the appropriateness of the sentence of imprisonment. Denying this opportunity and imposing the sentence nonetheless constituted a breach of the rule of natural justice (see [50]). This error, amongst other errors in the Magistrate’s exercise of the sentencing discretion, lead his Honour to set aside the sentence. Accordingly, it was necessary for the appellate court to exercise the sentencing discretion afresh, unless doing so lead to the conclusion that no different sentence should be passed (see [14]).

On the basis of the Court’s independent exercise of discretion and analysis of relevant cases, the sentence imposed was considered excessive. The respondent relied upon PFM v Queensland Police Service [2017] QDC 210 and TZL v Commissioner of Police [2015] QDC 171 in their submission that the sentence was appropriate since the offending in question was more serious than in each of those cases that yielded similar sentences (see [53]). In response, his Honour stated that the offending was not objectively more serious than in PFM and TZL and is not truly comparable and therefore of little assistance (see [54]-[58]). At the discretion of his Honour, two recent analogous cases were then considered. Taking into account those decisions and the material facts of the case, namely that the contravention involved no violence and was limited to a single instance of provoked verbal abuse, his Honour concluded that the sentence was outside the permissible sentencing range for the offender (see [64]-[65]) and ordered a sentence of probation for six months.

Queensland Police Service v JSB [2018] QDC 120 (28 June 2018) – Queensland District Court

‘Evidence’ – ‘Fines’ – ‘Following, harassing and monitoring’ – ‘Sentencing’ – ‘Sentencing options’

Charges: Contravention of a domestic violence order x 1; Possession of a dangerous drug x 1; Breach of a bail condition x 1

Appeal type: Appeal against sentence; Appeal by way of rehearing on the record

Facts: The respondent and appellant were in a relationship. The respondent pleaded guilty to three charges, one of which was contravention of a domestic violence order. He was fined $1,000.

Issues: Whether the fine of $1,000 was manifestly inadequate.

Decision and Reasoning: Fantin DCJ dismissed the appeal. Her Honour considered the respondent’s personal circumstances and criminal history, which included 28 breaches of domestic violence orders, 18 breaches of bail conditions and other court orders ([20]). Whilst the respondent’s previous breaches of domestic violence orders were clearly relevant and increased the need for personal and general deterrence, her Honour found that it should not outweigh the low level of gravity of the offence. Taking into account the relationship between the respondent and appellant, the fact that the contravention of the domestic violence order did not involve violence and was limited to one instance of verbal abuse, that the respondent was not charged with any other offence arising from the contravention, the respondent’s early plea and cooperation with police, that the respondent had spent three days in pre-sentence custody, the activation in full of a suspended sentence of two months’ imprisonment, it was open to the Magistrate to impose the fine of $1,000 for the contravention offence ([73]). She did, however, consider that the sentence may be regarded as generous and another judicial officer may have structured the sentences differently.

ATJ v SLK [2018] QDC 191 (23 April 2018) – Queensland District Court

‘Evidence’ – ‘Protection order’

Charges: Imposition of a domestic violence order x 1.

Appeal type: Appeal against imposition of a domestic violence order.

Facts: The respondent applied for a domestic violence order based on the appellant’s alleged behaviours, dating back several years and including a time prior to which a previous order was made. The application was served on the appellant two days prior to the hearing and the appellant did not attend the hearing. The only material placed before the Magistrate was the application itself. No oral evidence was given. The order was made. The appellant appealed against the decision to make the domestic violence order.

Issues: Whether the decision to make a domestic violence order could be set aside.

Decision and reasoning: Farr SC DCJ allowed the appeal, set aside the decision, and remitted the matter to the Magistrates Court. Whilst it appeared unlikely that the behaviour that occurred since the cessation of the previous order could justify and satisfy the test of domestic violence, even if that was the case, the Magistrate would need to take account of that prior behaviour to determine whether that might constitute domestic violence of a continuing nature, such that it is appropriate to make a second order based upon the same evidence. This was a question for that court to determine after hearing all of the appropriate evidence and submissions, and his Honour found that the present court was not in the position to make that decision ([19]).

S v T [2018] QDC 49 (29 March 2018) – Queensland District Court

‘Fair hearing and safety’ – ‘Management of application proceedings’ – ‘Protection order’ – ‘Systems abuse’

Case type: Application for costs after an appeal against a domestic violence order.

Facts: A protection order was made naming the respondent (T) as the aggrieved and the appellant (S) as the respondent. S successfully appealed against the order. S sought an order for T to pay her costs of the original hearing and the appeal ([1]).

Issues:

1.

Whether s 157(2) Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) applies to an award of costs after an appeal against a domestic violence order.

2.

Whether a costs order should be made in favour of S.

Decision and Reasoning: Richards DCJ made no order as to costs.

In relation to the first issue, the usual position is that each party to a proceeding for a domestic violence order bears their own costs unless the application for the protection order is ‘malicious, deliberately false, frivolous or vexatious’ (s 157(2) DFVPA). There is no equivalent section in the DVFPA in relation to appeals. However, r 142(2) DFVPA provides that the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) applies to appeals. Rule 681 UCPR states that costs follow the event unless the court orders otherwise. Richards DCJ held, applying GKE v EUT [2014] QDC 248, that the discretion to award costs should be exercised in light of s 157(2) DVFPA ([5]).

In relation to the second issue, Richards DCJ noted that there was some suspicion that T made the application for a domestic violence order in retaliation for S complaining to the police about him or to have some sort of leverage over her. However, his Honour was unable to find that the application was malicious, deliberately false, frivolous or vexatious ([6]).

MKA v WKT [2018] QDC 73(28 March 2018) – Queensland District Court

‘Change of venue’ – ‘Fair hearing and safety’ – ‘Legal representation and self-represented litigants’ – ‘Management of application proceedings’ – ‘People with mental illness’ – ‘Protection order’ – ‘Victim experience of court processes’

Appeal type: Appeal against domestic violence order.

Facts: A domestic violence order was made naming the respondent (WKT) as the aggrieved and the appellant (MKA) as the respondent ([2]). MKA appealed against the decision to grant the protection order ([3]). WKT applied to change the venue of the appeal from Cairns to Southport.

Issues: Whether the application for change of venue should be granted.

Decision and Reasoning: The application was granted.

WKT applied to transfer the proceedings on the grounds that:

•

she ordinarily resides in Coolangatta;

•

the proceedings at first instance were heard at Coolangatta;

•

she has been diagnosed with adjustment disorder with anxiety and depressed mood as a result of the domestic violence; and she has been unable to engage legal representation in Cairns ([12]); and

•

she cannot afford to pay her legal representation at the Gold Coast, but was hopeful of obtaining Legal Aid assistance ([13]).

MKA opposed the transfer on the basis that:

•

his legal representatives are based in Cairns;

•

he was put to the expense of flying and accommodating them at Coolangatta in the first instance proceeding;

•

there is no evidence that a timely hearing date would be available in Southport ([14]).

Morzone DCJ emphasised that the exercise of discretion to grant the transfer is governed by the objectives of the Domestic and Family Violence Act 2012 (Qld), one of which is to ‘…maximise the … wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives’. His Honour placed emphasis on WKT’s mental health condition, which is likely to be aggravated by the appeal proceedings ([25]-[26]).

ETB v Commissioner of Police [2018] QDC 26 (6 March 2018) – Queensland District Court

‘Aboriginal and Torres Strait Islander people’ – ‘Breach of protection order’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sentencing - double jeopardy’ – ‘Totality’

Charges: Contravention of domestic violence order (‘DVO’) x 2; Common assault x 1.

Appeal type: Appeal against sentence.

Facts: The appellant and respondent were in a relationship and raised 5 children together ([14]). The first contravention of DVO occurred when the appellant swore at the appellant and threatened to slice his own throat (‘June contravention of DVO’). The second contravention of DVO occurred when the appellant verbally abused the appellant (‘September contravention of DVO’). The aggrieved slapped the appellant and told him to leave. The common assault charge occurred when, in retaliation for the slap, the appellant punched the aggrieved in the head and ear (together, ‘September charges’) (see [10]).

The appellant was sentenced to 3 months’ imprisonment for the June contravention of DVO, 9 months’ imprisonment for the September contravention of DVO, and 9 months’ imprisonment for the common assault ([2]). The magistrate declared 39 days’ pre-sentence custody and set a parole release date after 2 weeks ([4]).

Issues: The appellant appealed on 4 grounds in relation to the September charges (see [7]-[8]):

•

first, that the sentence was manifestly excessive;

•

second, that the sentencing magistrate erred by failing to have proper regard to principles of totality;

•

third, that the sentencing magistrate erred by incorrectly applying relevant case law; and

•

fourth, that the magistrate erred by contravening s 16 of the Criminal Code 1999 (Qld) by imposing imprisonment on each of the offences of contravention of a domestic violence order and common assault.

Decision and Reasoning: The appeal was allowed.

In relation to the fourth ground of appeal, the Dearden DCJ held that the September charges could be appropriately separated, because the contravention of DVO was in relation to the verbal abuse, and the common assault was in relation to the physical punch ([18]). However, this meant that the respondent conceded that sentence of 9 months for solely verbal conduct was manifestly excessive ([20]). District Judge Dearden considered that the appropriate sentence for the September contravention of DVO should be 3 months ([21]).

The remaining issue was whether the sentence of 9 months imprisonment for the common assault charge was manifestly excessive ([23]). Considering case law and mitigating circumstances (the fact that the verbal abuse did not involve threats to harm the aggrieved and the assault was precipitated by the aggrieved slapping the appellant), Dearden DCJ held that the sentence was manifestly excessive ([23]-[30]). The appellant was re-sentenced to 6 months’ imprisonment ([32]).

ACP v Queensland Police Service (No 2) [2017] QDC 293 (8 December 2017) – Queensland District Court

‘Breach of protection order’ – ‘Interpretation of order’ – ‘Ouster order’ – ‘Particularise a charge’ – ‘Return condition’ – ‘Uncertain in its terms’

Charges: Breach of temporary protection order x 1.

Appeal type: Appeal against conviction.

Facts: A temporary protection order was made naming ACP as the respondent and MP as the aggrieved. Condition 4 of the order provided that ACP must vacate the family property, and condition 5 allowed ACP to return to the property to collect belongings in the company of a police officer ([10]). The order did not specify the time by which ACP must vacate the property, but ACP gave evidence that the Magistrate said that ACP must vacate the property ‘straight away’ ([58]).

MP returned to the property 3 days later, to find ACP loading belongings onto a truck. ACP had not yet vacated the property ([20]-[21]). ACP gave evidence that he understood the order to mean that he could vacate the property himself, and only needed police attendance to return to the property ([60]).

The bench charge sheet did not set out the particulars of which condition of the order the defendant was alleged to have contravened ([8]), contrary to s 177(4) of the Domestic Violence and Family Protection Act 2012 (Qld) ([19]).

Issues: Whether the temporary protection order was uncertain in its terms.

Decision and Reasoning: The appeal was allowed, and the conviction was set aside.

Judge Horneman-Wren SC concluded: first, that the charge was not adequately particularised; and second, that the order was uncertain in its terms. First, the charge sheet did not inform the defendant of the factual ingredients of the offence ([72]). Second, even though the order did not provide a timeframe within which ACP was to vacate the property, the Magistrate stated that ‘the order is quite clear on its face and I am satisfied that the appellant was aware that he was to get out straight away’ ([79]). This was an error because ‘straight away’ was not incorporated in the condition ([90]).

ACP v McAulliffe [2017] QDC 294 (8 December 2017) – Queensland District Court

‘Family law issues’ – ‘Necessary or desirable test applied to conditions’ – ‘Protection order’ – ‘Risk of future domestic violence’

Appeal type: appeal against a protection order.

Facts: The male appellant and the female aggrieved person (MP) were in a relationship. Commencing in October 2012, there were a number of ‘instances’ of domestic violence (see [28]-[38]). A temporary protection order was made on 15 February 2016. A year later, on 7 March 2017, a Magistrate made a protection order against the appellant for the benefit of MP and her three sons under the Domestic and Family Violence Protection Act 2012 (Qld)(DFVPA). There were five conditions stipulated under the order; the first and fourth were standard conditions under s 56 of DFVPA:

1.

Appellant be of good behaviour towards the aggrieved and not commit domestic violence against her.

2.

Appellant is prohibited from remaining at, entering or attempting to enter, premises or approaching the premises where the aggrieved lives or works.

3.

Subject to four exceptions, appellant is prohibited from contacting, attempting to contact or asking someone else to contact the aggrieved.

4.

Appellant be of good behaviour towards the named children and not commit associated domestic violence against them and not to expose them to domestic violence.

5.

Appellant is prohibited from contacting the named children subject to the same exceptions applicable under condition 3.

Issue: whether the protection order was necessary or desirable to protect the aggrieved from domestic violence?

Decision and reasoning: the appeal was allowed to the extent that a protection order was made but only with the standard conditions. Conditions 2, 3 and 5 were removed and condition 4 was renumbered as condition 2.

Before considering the issue on appeal, Horneman-Wren SC DC’s observed that the Magistrate did not expressly assess either of the first two steps of the three-step process considered by Morzone QC DCJ in MDE v MLG as the necessary approach to determining the requirement, under s 37(1)(c) of the DFVPA, that “the protection order is necessary or desirable to protect the aggrieved from domestic violence” (see [67]). His Honour then took the opportunity to emphasise the discretionary nature of this requirement and that Morzone QC DCJ’s view on how to determine whether an order is necessary or desirable shouldn’t be seen to mandate those three steps (see [68]-[69]). Indeed, his Honour later recognises that it was sufficiently clear from the Magistrate’s reasons that she answered the first question of the three-stage approach in the affirmative (see [76]-[78]).

In relation to the issue on appeal, his Honour considers the Magistrate’s finding that an order was necessary as unreasonable and reached in error. His Honour opined that evidence of risk of future domestic violence in the absence of a protection order (first step) is not a sufficient basis for concluding that the necessary condition is satisfied (see [80]). However, his Honour regarded the Magistrate’s finding that the protection order was desirable as one that ought to have been made (see [81]). In accordance with the requirement under s 37(1)(c) that the court must only be satisfied with one of the two conditions (see [88]), and as reflected in the orders of this appeal, his Honour therefore agreed with the Magistrate in her decision to make the protection order (see [88]).

Ultimately, it was the terms in which the Magistrate made the order that necessitated modification of the protection order. His Honour noted that under s 57(1) of the DFVPA, before the court may impose other conditions in addition to those set out in s 56, it must be satisfied that the condition is both necessary in the circumstances and desirable in the interests of the aggrieved, named person or the respondent. Having recognised this, his Honour then pointed out that the Magistrate failed to explain that she was satisfied that the imposition of other conditions was both necessary and desirable (see [89]-[90]). The order to remove conditions 2, 3 and 5 of the protection order reflect this view of his Honour that the Magistrate erred in imposing those other conditions.

MEG v Commissioner of Police [2017] QDC 302 (10 November 2017) – Queensland District Court

‘Appeal against sentence’ – ‘Breach domestic violence order’ – ‘Probation’ – ‘Procedural fairness’ – ‘Sentencing’ – ‘Sentencing submissions’

Charges: Contravention of a domestic violence order as an aggravated offence x 1; Assault or obstruction of a police officer as a domestic violence offence x 1; Possession of dangerous drugs x 1; Contravene direction x 1; Contravention of a domestic violence order simpliciter x 1; Authority for controlled drugs x 1; Failure to properly dispose of a syringe or needle x 1.

Appeal type: Appeal against sentence.

Facts: The appellant breached a domestic violence order naming the appellant’s mother as the aggrieved and her son as a named person in the order. The breach occurred when the appellant made threats to kill herself and her son, in the presence of her son ([17]).

The appellant pleaded guilty and was sentenced to six months’ imprisonment for the contravention of a domestic violence order as an aggravated offence and four months’ imprisonment for the contravention of a domestic violence order simpliciter. For the other charges, the appellant was convicted and not further punished ([2]).

At sentence, the Magistrate indicated that he was considering a prison probation order of 2 months’ imprisonment and 12 months’ probation ([5]). After hearing submissions on that sentence, the Magistrate asked the appellant whether she consented to the probation order. MEG asked, ‘what happens if I say no?’ The Magistrate interpreted this question to mean that MEG did not consent to the order, and immediately imposed the four- and six-month sentences of imprisonment ([29]).

Issues: Whether the appellant was denied procedural fairness, and whether the sentences were manifestly excessive.

Decision and Reasoning: The appeal was allowed, and the appellant was re-sentenced to two months’ imprisonment, which was time already served.

Judge Horneman-Wren SC held that the Magistrate erred in construing MEG’s question (‘what happens if I say no?’) as a refusal to consent. Further, the Magistrate erred in sentencing the appellant to a head sentence of six months without inviting further submissions on the sentence ([32]). The Magistrate did not give reasons for why six months was an appropriate head sentence, and did not refer to any comparable cases ([33]).

PFM v Queensland Police Service [2017] QDC 210 (11 August 2017) – Queensland District Court

‘Contravention of domestic violence order’ – ‘Extending protection order’ – ‘History of domestic violence offences’ – ‘Parole’ – ‘Post-separation abuse’ – ‘Re-sentence’ – ‘Totality’

Charges: Contravention of domestic violence order x 1.

Appeal type: Appeal against sentence.

Facts: The complainant had obtained a domestic violence order with the appellant as the aggrieved. The order contained a condition that the appellant was not to have contact with the complainant. In contravention of this condition, the appellant travelled to the complainant’s house, stood outside, and called out to her and her son ([16]). The appellant had a criminal history including 13 breaches of domestic violence orders, spanning 12 years to 2015. The appellant was sentenced to 4 months’ imprisonment.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed for two reasons: first, the sentencing judge erred in not applying the principle of totality; and second, the sentence was manifestly excessive.

In relation to totality, the appellant had previously been sentenced for a failure to appear, and was sentenced to 5 months imprisonment. Since the appellant was on parole, the imposition of the new sentence automatically cancelled his parole. Therefore, the effect of the sentence was to impose a 9-month sentence. The magistrate did not treat the matter in this way, and calculated the parole eligibility date as one third of the 4-month sentence ([40]-[41]).

In relation to the length of the sentence, the sentence was outside the appropriate range. Morzone QC DCJ stated that ‘it seems that the Court allowed the appellant’s previous offending to overwhelm other material considerations and the nature and seriousness of the offending subject of the sentence’ ([42]). The offending conduct was in the lower range, and would not normally attract a sentence of imprisonment. However, the nature of offending in the context of previous past breaches of domestic violence offences warranted a period of one month’s imprisonment ([64]).

The judge determined that the extension of the protection order to was ‘necessary or desirable for the order to regulate the parties’ communication and contact for that period. By that time, the parties’ parental relationship and need for contact will change as the child matures into his early teens.’ [70]

NAS v QPS [2017] QDC 173 (21 June 2017) – Queensland District Court

‘Appeal against sentence’ – ‘Partially suspended sentence’ – ‘People from culturally and linguistically diverse backgrounds’

Charges: Assault occasioning bodily harm whilst armed with an instrument x 1.

Appeal type: Appeal against sentence.

Facts: The appellant and complainant were married and had a 5-month-old baby. The appellant was from Papua New Guinea and was staying in Australia on a tourist visa ([2]). The offence occurred when the appellant became angry and threw an apple at the complainant, struck her with a broomstick, and struck the back of her head while she was holding the baby ([3]).

The appellant pleaded guilty on the following day and was immediately sentenced to 15 months’ imprisonment, suspended after serving a period of 2 months for an operational period of 3 years ([1]). He was represented by a duty lawyer ([5]).

The magistrate stated that the ‘only’ appropriate sentence was 15 months’ imprisonment ([11]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed.

Judge Reid held that the Magistrate erred by stating that 15 months was the ‘only appropriate term’ ([23]). Comparable cases, most relevantly R v Pierpoint [2001] QCA 493, indicated that a lesser sentence was also open ([25]).

On one hand, the offending was serious: it was somewhat protracted, committed against a female partner, and in the presence of a young child. On the other hand, the appellant had no criminal history, the appellant had ceased hitting the complainant before the police arrived, and there was no previous domestic violence order in place ([26]-[27]).

The appellant was re-sentenced to 9 months’ imprisonment, to be suspended in 10 days, after the appellant had completed serving the sentence of 2 months imprisonment ([30]). Had a pre-sentence custody certificate been provided, a wholly suspended sentence could have been imposed ([30]).

LDS v QRR [2017] QDC 199 (15 June 2017) – Queensland District Court

‘Cumulative sentence’ – ‘Manifestly excessive’ – ‘Natural justice’ – ‘Psychologist’ – ‘Sentencing’ – ‘Statistics’ – ‘Wilful damage’

Charges: Contravening domestic violence order x 3; wilful damage x 1; common assault x 1.

Appeal type: Appeal against sentence.

Facts: The complainant was the aggrieved in a domestic violence order taken out against the defendant. The breaches of domestic violence order and common assault charge occurred when the appellant punched and pushed the complainant to the ground on three occasions ([6]). The wilful damage charge occurred when the appellant stomped on her mobile phone while she was trying to contact the police ([7]). Following a plea of guilty, the Magistrate imposed cumulative sentences totalling 18 months’ imprisonment, with a parole release date after 6 months ([3]).

Issues: There were three grounds of appeal: first, that the Magistrate placed disproportionate weight on general community deterrence; second, that the Magistrate disregarded the appellant’s mental health issues; third, that the Magistrate erred in ordering the sentences to run cumulatively without consulting either party.

Decision and Reasoning: The appeal was allowed.

In relation to the first ground, the Magistrate described the appellant’s offending as a ‘reign of terror heaped upon the complainant’ ([16]). District Court Judge Muir described this statement as an exaggeration because the violence was at the lower end of the scale and the offences were committed within a short time period ([31]). The Magistrate also referred to statistics that 700 women would be killed in the next 10 years if nothing was done about domestic violence ([19]). District Judge Muir held that using statistics in this way indicated that the Magistrate did not place sufficient weight on the appellant’s mitigating factors.

On the second ground, the appellant asserted that he suffered from depression, post-traumatic stress disorder and schizophrenia. However, the psychologist’s letter tendered in evidence did not mention those conditions. The Magistrate enquired as to who gave the diagnoses, but more information could not be tendered ([27]). District Judge Muir held that the Magistrate was entitled to place little weight on the diagnoses.

On the third ground, Muir DCJ held that it was an error for the Magistrate to not invite submissions about the possibility of cumulative sentences ([36]).

On the whole, Muir DCJ concluded that the sentence was outside the appropriate range ([47]). The appellant was re-sentenced to an overall head sentence of 9 months’ imprisonment, with the appellant to be released immediately on parole after having served approximately 4 months in prison ([50]).

JC v KP [2017] QDC 175 (26 May 2017) – Queensland District Court

‘Consent’ – ‘Protection order’ – ‘Weapons licence’

Appeal type: Appeal against decision to grant protection order.

Facts: The appellant and respondent were brothers. A Magistrate ordered that a protection order be made against the appellant by consent (p 2), with the respondent as the aggrieved. The Magistrate represented to the appellant that the order would not affect the appellant’s weapons license (p 3). In fact, a protection order would limit the applicant’s weapon’s license for five years (p 5). The appellant appealed the decision on the ground that the appellant was induced to consent to the order being made (p 2-3).

Issues: Whether the order should be set aside.

Decision and Reasoning: The order was set aside. Judge Long of the District Court concluded that the appellant did not understand the full consequences of the order being made, and the matter was remitted to a contested hearing (p 6-7).

CDX v Queensland Police Service [2017] QDC 96 (5 April 2017) – Queensland District Court

‘Conflating factual issues’ – ‘Contravention of domestic violence order’ – ‘Exposing children’ – ‘Text messages’

Charges: Contravention of domestic violence order (DVO) x 1; Possess restricted items x 1; Possess explosives x 1; Assault or obstruct police officer x 1.

Appeal type: Appeal against sentence from Magistrates Court.

Facts: The appellant was subject to a DVO with the complainant named as the aggrieved ([12]). The appellant sent threatening text messages to the complainant, and took their child out of school ([12]). This formed the basis of Charge 1, contravening a DVO. When the police arrived at the appellant’s house, he refused to cooperate, and appeared to reach for a knife while holding the child ([12]). This formed the basis of Charge 4, obstruct police officer.

The appellant was sentenced to six months’ imprisonment with a non-parole period of two months ([1]).

Issues: The defendant appealed on the grounds that: the sentence was manifestly excessive; the Magistrate took irrelevant matters into consideration by relying on the documentation from the domestic violence order; the Magistrate fettered her objectivity; and the Magistrate conflated the facts of Charge 1 and Charge 4 ([2]-[3]).

Decision and Reasoning: The appeal was allowed. Horneman-Wren SC DCJ concluded that the Magistrate erred in conflating the factual issues in charges 1 and 4 ([42]). The other grounds of appeal were not made out. Horneman-Wren SC DCJ considered that a shorter sentence would have been appropriate, but since the appellant had been in custody for 7 weeks, his Honour recorded a conviction and did not further punish the appellant ([47]).

CED v HL [2016] QDC 345 (22 December 2016) – Queensland District Court

‘Children’ – ‘Protection orders’ – ‘Temporary protection order’ – ‘Vary’

Appeal Type: Appeal against variation to Temporary Protection Order.

Facts: A temporary protection order was made against the appellant which stipulated his former female partner, the respondent, as the protected person. The appellant and the respondent had a son together, K. The terms of the temporary protection order were varied twice. The first variation occurred after the respondent took K out of school (against K’s wishes). The appellant arrived to pick up K, at K’s request. An argument ensued between the appellant and the respondent. The temporary protection order was varied to name K as a protected person.

Second, the respondent reported that her father (the maternal grandfather of K) had made threats against the appellant in the presence of K. The temporary protection order was varied to prevent the appellant from permitting, encouraging or facilitating in-person contact between K and the grandfather. The appellant’s position was that he had never been threatened by the respondent’s father in that way and that K wanted to see his grandfather.

The appellant applied to a magistrate to have these terms varied and removed. The application was refused.

Issue/s: Whether the variations ought to be allowed?

Decision and Reasoning: The appeal was allowed. Kent J held that there were insufficient reasons given for the orders made refusing the variations. This was an error of law and the decision had to be set aside on that basis. Further, there was an insufficient evidentiary basis to prove that either of the contested conditions were necessary or desirable. First, K’s presence at the incident between the appellant and respondent was purely incidental. It was upsetting but no more upsetting than other separate actions of the respondent. It was not prolonged or dangerous and not wilfully brought about, or persisted with, by the appellant. Second, the grandfather’s threats against the appellant were out of the appellant’s presence and not initiated by the appellant. They were unlikely to be repeated and did not involve any violence against K. This was too tenuous to substantiate the challenged conditions (see [38]).

RWT v BZX [2016] QDC 246 (30 September 2016) – Queensland District Court

‘Costs’ – ‘Cross-application’ – ‘Cross-orders’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse’

Appeal Type: Appeal against a protection order and an order for costs.

Facts: The male appellant and the female respondent were married in India. It was an arranged marriage. They lived in Australia with their son and the appellant’s parents. Each applied for a protection order against the other, making serious allegations which were denied. There were also proceedings in the family court at the time of the protection order hearing.

The respondent’s application and affidavit set out particulars of domestic violence under several headings: verbal abuse, controlling behaviour, psychological abuse using the child, sexual abuse, financial abuse, threats and intimidation. She perceived an alliance against her (the appellant, his parents and the son). She annexed to her affidavit a transcript of a recording she made as she was packing to leave the family home to provide evidence of this. Conversely, the appellant alleged that the respondent had assaulted the child. He had previously taken the child to a doctor and reported the complaint.

The magistrate made an order in favour of the wife. He dismissed the appellant’s application and also made an order for costs. In doing so His Honour stated:

‘Sadly what I say in these proceedings can’t be used in the Family Court. These proceedings are private proceedings. I wish they could. I wish the Family Court could hear what I think about the reliability of [the appellant]. It’s been a scurrilous case. On my view, his application has been deliberately false and vexatious. I can say that, in 12 years as a magistrate, I have never ordered costs in a domestic violence case before. I intend to today for the first time in many hundreds of cases’.

Issue/s: Some of the grounds of appeal included –

1.

There was no proper basis on the evidence for the learned Magistrate to make a protection order under s 37 of the [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’);

2.

There was no proper basis for the learned Magistrate to order costs under s 157 of the Act against the appellant in favour of the respondent.

Decision and Reasoning: The appeal was dismissed.

Was there a proper basis for the order made against the appellant? (see [4]-[34])

1.

Devereaux SC DCJ held that it was open to the magistrate to conclude that the appellant had committed acts of domestic violence against the respondent: s 37(1)(b) of the Act.

(a)

The magistrate was correct to use the transcript of the recording made by the respondent as proof of her case and as relevant to the credibility of the appellant. The transcript showed the manner in which the appellant treated the respondent. Further, the ‘startling’ language and attitude of the child towards his mother in the transcript gave rise to the inference that the appellant had treated the respondent in such a way over a lengthy period in front of the child: see [12].

(b)

The magistrate, correctly, interpreted the transcript as confirmation of the respondent’s claim that the discussion was principally about money – the appellant’s demand that she deposit all her wages into the joint account: see [13]. Evidence of the respondent’s friend further corroborated the respondent’s evidence about financial abuse: see [18].

(c)

Devereaux SC DCJ agreed with the magistrate’s analysis of the transcript of the recording (see [14], [29]). It provided evidence of threats by the appellant, that the appellant would shout at her in front of the child, and that the child had been ‘coached and poisoned against his mother’ (see [15]-[24]).

(d)

His Honour further held that: ‘the passages I have referred to in this judgment from His Honour’s reasons reduce to the finding that his Honour rejected utterly the credibility of the appellant and accepted completely the credibility and reliability of the respondent. There is nothing in the materials which objectively suggests that those findings were not open to His Honour or that I should draw different inferences from facts in the record’ at [29].

2.

Devereaux SC DCJ also held that it was open to the magistrate to conclude that the protection order was necessary or desirable to protect the respondent from domestic violence: s 37(1)(c) of the Act.

(a)

Devereaux SC DCJ noted the magistrate’s conclusions about the appellant’s application, namely that it was ‘an outrageous case and pure nasty, vindictiveness on this woman because she wouldn’t hand over her money to a controlling, bullying husband. I don’t believe she has been anything other than a good mother to her child. I dismiss the [appellant’s] application …, as I said, but I do intend to make an order in favour of the wife’.

(b)

The magistrate continued: ‘[i]n my view, as I mentioned during submissions, the fact that property settlements in family law matters are still contentious and, indeed, the mother still isn’t even getting face-to-face contact with her own child at the moment, there is every opportunity for the husband to continue his bullying behaviour to try and manipulate the wife into caving in to his demands about the child, about financial affairs, and anything else that he might have a penchant to do in his bullying behaviour. She is absolutely in need of protection. He needs to be kept well away from her’ (see [26]).

(c)

Devereaux SC DCJ held that these statements could be properly understood as the magistrate’s reasons for being satisfied that the protection order was ‘necessary or desirable to protect the aggrieved from domestic violence’ (see [28]). This reasoning, that it was necessary or desirable for an order to protect the respondent from domestic violence in the setting of the continuing family court proceedings, was correct: GKE v EUT (see [32]).

Devereaux SC DCJ noted generally that ‘[i]t is advisable that a magistrate make specific findings with respect to the matters set out in s 37 of the DVFP Act’ (see [27]). However, here, ‘the manner in which His Honour reached and set out conclusions is sufficiently clear to be amenable to examination and review’ see [28].

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The appeal against the costs order (see [35]-[68])

Devereaux SC DCJ held that the magistrate was entitled to thoroughly reject any of the appellant’s assertions. Having done so, it was open to the magistrate to conclude that the appellant’s application was brought to vex the respondent – ‘it was deliberately false and vexatious’, brought because ‘she wouldn’t hand over her money to a controlling bullying husband’’ (see [65]-[66]).

WJ v AT [2016] QDC 211 (19 August 2016) – Queensland District Court

‘Cross-application’ – ‘Cross-order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Purpose of the domestic and family violence protection act 2012 (qld)’ – ‘Risk’

Appeal Type: Appeal against the making of a protection order against the appellant and appeal against the decision of the Court to dismiss the appellant’s application for an order.

Facts: The male appellant and the female respondent were in a relationship. They had two children together, DJ and MJ (aged 3 and 2), and another daughter, LS (aged 8), from the respondent’s previous relationship. The appellant had been abusive to LS in the past. The parties had separated and the three children lived with the respondent. The respondent and the appellant each applied for a protection order against the other. There were also contact/care proceedings in the Federal Circuit Court.

The respondent’s case was that on 14 August 2015 the appellant spoke loudly and in an insulting way towards her. Many, if not all, of these statements were made in front of DJ and MJ, upsetting the children. The appellant rubbed his beard against the respondent’s eye area and continued to verbally abuse her. The respondent tried to ignore him. He took her phone and ran outside. There was a struggle. He pushed the respondent, she was thrown onto the car bonnet and the appellant sustained some scratches (see [6]-[32], [112]-[126]). Conversely, the appellant alleged that the respondent ‘went berserk’, pushed him around the balcony, grabbed and attacked him, and he ran away from her. She then physically assaulted him. He sustained scratches and a ripped shirt. He also alleged he was a victim of economic abuse (see [33]-[53]).

The Judicial Registrar (JR) made a protection order against the appellant in favour of the respondent. The JR dismissed the cross-application by the appellant (see [56]-[58]).

Issue/s: One of the grounds of appeal was that the decisions of the Judicial Registrar were made against the weight of the evidence, namely the making of a protection order against the appellant in favour of the respondent; including the two children, MJ and DJ, in the order; including the child LS in the order; and the refusal to make a protection order against the respondent in favour of the appellant.

Decision and Reasoning: The appeal was dismissed.

•

Should an order have been made against the appellant?

First, Smith DCJA held that a number of the acts committed by the appellant amounted to domestic violence as per s 37(1)(b) of the Act Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) – ‘the rubbing of the beard was physically abusive, the taking of the phone was physically abusive and the insulting words about the first respondent was in my view emotionally or psychologically abusive’ (see [131]).

Second, in considering whether a protection order was ‘necessary or desirable’ to protect the aggrieved as per s 37(1)(c), Smith DCJ noted that the reasoning of McGill SC DCJ in GKE v EUT applied here. McGill SC DCJ said:

‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’(see [32]-[33]).

Smith DCJA noted that ‘necessary’ is defined by the dictionary as ‘requiring to be done, achieved; requisite, essential’ and desirable is defined as ‘worth having’. There is therefore a ‘lower threshold when one is concerned with the term ‘desirable’. But both are focused on the need to protect the aggrieved from domestic violence’ (see [137]-[139]).

His Honour ultimately agreed with the JR’s reasoning that an order was both necessary and desirable to protect the aggrieved from respondent. At [140]:

‘There is no doubt that the parties are embroiled in Federal Circuit Court proceedings. There are children of the relationship about whom contact/care arrangements will need to be made. These will need to be dealt with in a civilised and appropriate fashion. I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence’.

•

Should MJ and DJ have been included in the order?

Section 53 of the Act provides that the court may name a child ‘if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from (a) associated domestic violence or (b) being exposed to domestic violence committed from the respondent’. Section 10 of the Act defines the meaning of ‘exposed to domestic violence’.

Smith DCJA was satisfied that the children were exposed to domestic violence (see [148]). Further, His Honour stated: ‘I do not consider there is any requirement they understand the words spoke, particularly bearing in mind they were spoken aggressively’(see [149]). Additionally, it was also necessary and desirable for the children to be included in the order because, as the JR found, there was a continued risk of exposure to domestic violence in the future. This was because the parties would continue to be in contact through the children of the relationship and proceedings were on foot in the Federal Circuit Court (see [150]-[151]).

•

Should LS have been included in the order?

His Honour held that:

‘[I]n all of the circumstances, bearing in mind that there is a real possibility of contact between the appellant and LS, and bearing in mind the acrimonious situation between the parties and the events of 9 July 2015 [when the appellant was physically abusive towards LS] and 15 August 2015, I consider the JR was right to add LS to the order to avoid the risk of her being exposed to domestic violence’ at [159].

•

Should an order have been made against the first respondent?

In this regard, Smith DCJA noted the respondent had tried to ignore the appellant and that the scratches sustained by the appellant could have been caused in self-defence or accidently by the respondent. In this regard, His Honour quoted the explanatory notes to the 2011 Bill at [166]:

‘Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship cannot be a victim and perpetrator of this type of violence at the same time. A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken’ (His Honour’s emphasis).

In light of this, Smith DCJA held that there was no ‘physical abuse’ of the respondent by the appellant. Also, on the totality of the evidence, the respondent was most in need of protection (see [167]-[172]).

EAV v Commissioner of Police [2016] QDC 237 (16 September 2016) – Queensland District Court

‘Alternatives to imprisonment’ – ‘Community based orders’ – ‘Contravention of a domestic violence order’ – ‘Cross-application for mutual protection orders’ – ‘Magistrates’ – ‘People with mental illness’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Previous breaches of domestic violence protection order’ – ‘Protection orders’ – ‘Sentencing’

Charge/s: Breach of a domestic and family violence order.

Appeal Type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. They were subject to a domestic violence protection order on 8 July 2015 for a period of two years. These were cross-orders. In October 2015, the appellant breached these orders and was fined $500. On 20 November 2015, police attended their address after reports of a dispute. The appellant told police that he and the complainant were in a heated argument, which the complainant had initiated. The appellant said he bumped into the complainant, causing her to stumble. The complainant slapped the appellant. He then grabbed the complainant, threw her on the bed, and restrained her with his body weight. He released her and the argument continued until police arrived.

In sentencing, the magistrate expressed significant concern about the chronology of events namely, that the domestic violence order had been made in July 2015, breached by the appellant on 27 October 2015, the appellant was sentenced for that breach on 11 November 2015, and he then breached the domestic violence order again on 20 November 2015. The appellant was sentenced to three months’ imprisonment, wholly suspended, with an operational period of 12 months.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. Dearden DCJ noted that the magistrate failed to give appropriate recognition to a number of relevant factors, namely at [22]:

•

‘there were mutual, cross-orders for domestic violence in place at the time of the offending;

•

‘the initial violence in the incident was, in fact, the complainant slapping the appellant;

•

‘the appellant’s violence, in response, was relatively low level (although nonetheless unacceptable);

•

‘the appellant had been in receipt of medical care in respect of a significant mental health issue, and importantly, had undertaken the Anglicare Living Without Violence Program, which was a substantial program, indicating on his part a significant willingness to change;

•

‘the appellant had expressed his remorse to police immediately after the event’.

His Honour noted that ‘magistrates dealing with breaches of domestic violence are, of course, under significant time pressures and the learned magistrates sentencing remarks are brief’. However, His Honour held that, ‘the transcript does not indicate that the learned magistrate in any way considered alternatives other than imprisonment in respect of this matter, and appears only to have taken into account the chronology (which is obviously significant) and to some very minor extent (referenced at the conclusion of her sentencing remarks) the steps that the appellant had taken in respect of receiving assistance from Dr Calder-Potts and Anglicare’ (see [24]).

The appellant was resentenced to 18 months’ probation with a special condition that he continue treatment and complete 100 hours of community service. No conviction was recorded.

IFM v Queensland Police Service [2016] QDC 140 (17 May 2016) – Queensland District Court

‘Breach bail condition’ – ‘Contravention of a domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Repeated contraventions’ – ‘Sentencing’

Charge/s: Contravention of a domestic violence order x 2, breach bail condition x 2, and a further contravention charge.

Appeal Type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. In relation to the first contravention of a domestic violence order, on 18 March 2015, the appellant pushed the complainant over and punched her to the jaw. No physical injury was alleged. After being arrested and charged, the appellant was released on bail. The second contravention of a domestic violence order occurred on 30 May 2015. The appellant grabbed the complainant by the throat and hit her, knocking her to the ground. He kicked her, dragged her to her feet and verbally abused her. The appellant then dragged her to a nearby park, knocking her to the ground again, hit her in the head, picked her up and continued to drag her. No physical injury was alleged. A head sentence of 15 months imprisonment was imposed on the second contravention of domestic violence order.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Counsel for the appellant submitted that a sentence of 12 months imprisonment with a release after four months was appropriate in light of the authorities of PMB v Kelly [2014] QDC 301 and Singh v QPS [2013] QDC 37. Durward SC DCJ distinguished both of these cases (see [20]).

Here, Durward SC DCJ was satisfied that a sentence of 15 months imprisonment was not manifestly excessive. This was in light of a number of factors. The appellant’s conduct involved significant aggravating circumstances namely, the first contravention of a domestic violence order was committed two weeks after the expiration of an earlier imposed sentence, the second contravention charge occurred while the appellant was on bail for the former offence, and the appellant had previous convictions for breaches of domestic violence orders (including one committed against the same complainant) (see [21]). Further, the conduct of the appellant in the second charge was ‘sustained and patently violent’. It occurred not only in a residence but in a public area (see [22]). Finally, the appellant had a significant criminal history (see [23]).

AJS v KLB v Anor [2016] QDC 103 (13 May 2016) – Queensland District Court

‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Risk of future domestic violence’ – ‘Whether a protection order was necessary or desirable to protect the respondent from domestic violence’

Appeal Type: Appeal against protection order.

Facts: The female respondent and the male appellant began a relationship in March 2014. The appellant gave her a false name, ‘Cray’, and other false details about his life. The respondent ended the relationship on 31 December 2014. From January to May 2015, the respondent received a series of text messages from the appellant. While at first these messages were consistent with someone trying to salvage the relationship, they became increasingly aggressive and abusive. Some included sexually explicit references.

The respondent contacted police in February 2015. The police made contact with the appellant. The appellant asserted that he was not ‘Cray’ and, in a series of phone calls, threatened the police and the respondent with legal action. He then sent the respondent a nine page threatening and intimidating letter. A temporary protection order was made in favour of the respondent. The appellant then instructed his solicitors to write a letter seeking the proceedings to be discontinued. This letter denied that he ever knew the respondent.

On 20 November 2015, the court made a protection order in favour of the respondent against the appellant. The magistrate noted in his findings that the respondent was clearly upset and frightened in court. She had difficulty giving evidence and, even when removed to the vulnerable witness room, she covered her face from the camera. The appellant, on the other hand, appeared confident and in control.

Issue/s: One of the grounds of appeal was that there was no or no sufficient evidence to support the finding that His Honour was satisfied that an order was necessary or desirable to protect the respondent from domestic violence.

Decision and Reasoning: The appeal was dismissed. Harrison DCJ had regard to the decision of Morzone DCJ in MDE v MLG & Commissioner of the Queensland Police Service where he asserted that the question of whether ‘the protection order is necessary or desirable to protect the aggrieved from domestic violence’ in s 37(1)(c) of [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) requires a three-stage process supported by proper evidentiary basis. As per Morzone DCJ at [55]:

•

‘Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order:

(a)

‘There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.

(b)

‘Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence’.

•

‘Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children’.

•

‘Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence. In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1)’.

Harrison DCJ held that although the magistrate did not refer specifically to each of the three stages of the three-stage process described in MDE, the magistrate did not err in finding that it was desirable to make the necessary protection order for the protection of respondent from domestic violence:

1.

There was sufficient evidence to make the finding that there was a risk of future domestic violence in the absence of any order. Here, the magistrate had regard particular regard to the two letters from the appellant. These did not show any remorse or rehabilitation and the mere fact that the appellant had not contacted the respondent since he was caught on 9 June 2015 did not advance the issue of rehabilitation any further. Additionally, it was particularly relevant that the appellant tried to lie his way out of the temporary protection order. These considerations ‘took the matter much further than the mere possibility or speculation of the prospect of domestic violence’ (see [85]-[87]).

2.

The magistrate had regard to the impact of the appellant’s behaviour on the respondent, and the fact that they both lived and worked in the Atherton Tablelands (a relatively small community where there would be real opportunities for direct and indirect contact in the future). This evidence was clearly sufficient to satisfy the second stage in MDE (see [88]).

3.

In relation to the third stage, a number of matters in s 4(1) of the Act were relevant namely, the safety, protection and wellbeing of the respondent; the need to treat her with respect and to ensure minimal disruption to her life; holding the appellant responsible for his domestic violence and the impact it had on the respondent; and the respondent was vulnerable as under paragraph (d), as was demonstrated with her difficulties in giving evidence (see [89]-[90]).

DMK v CAG [2016] QDC 106 (15 April 2016) – Queensland District Court

‘Abuse of process’ – ‘Definition of domestic violence’ – ‘Desirability of protection order’ – ‘Domestic violence protection order’ – ‘Emotional and psychological abuse’ – ‘Evidentiary standard of proof’ – ‘Relevant relationship’ – ‘Systems abuse’ – ‘Vexatious or frivolous’

Appeal type: Appeal against domestic violence protection order

Facts: The appellant and respondent were in a de-facto relationship for almost 10 years and had children together. After separating, the respondent became the children’s primary caregiver. The appellant assisted her in looking after the children and they continued in a parenting relationship. A domestic violence protection order was made against the appellant to protect the respondent in the Magistrates Court. The magistrate had regard to three court orders existing between the parties in making this order. These were a Family Court order, a protection order made against the respondent naming the appellant as aggrieved, and a temporary protection order with the respondent as the aggrieved.

Prior to the making of the domestic violence protection order, the appellant made a complaint to police that his daughter was ‘sexting’. A few weeks later, he made another complaint that the respondent texted him in contravention of the protection order naming him as the aggrieved. However, after investigations the police determined both these complaints were unfounded. The appellant then allegedly threatened to kill their children, the respondent, her new partner and his children. The appellant than made a further complaint that the respondent’s new partner had unregistered firearms. After searching his home, the police did not find any of the alleged firearms. Several months later the appellant complained that the respondent kidnapped his 17-year-old daughter. This complaint was also unfounded. Finally, the appellant allegedly threatened the children that the respondent would be sent to gaol.

The magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence. He accepted that the appellant’s conduct in making complaints to police caused the respondent to live in constant fear of the appellant. In particular, she feared that the appellant would act on his threats to kill her and her family. The magistrate considered that this amounted to domestic violence for the purposes of s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

Issues: Some grounds of appeal were:

1.

Whether magistrate erred in finding the appellant’s conduct in making complaints to the police was ‘domestic violence’ within the meaning of the Act.

2.

Whether the magistrate erred in failing to exercise his discretion reasonably by not finding that the prosecution case was frivolous or vexatious or otherwise an abuse of process.

3.

Whether the magistrate erred in failing to exercise his discretion reasonably by making the protection order.

Decision and reasoning: The appeal was dismissed and the protection order was affirmed.

As a preliminary issue, Morzone QC DCJ denied the appellant’s request for a de novo rehearing as of right ([12]-[23]). Further, His Honour rejected the submission that the evidentiary standard of proof under the Act is higher than on the balance of probabilities ([24]-[27]- discussing Briginshaw v Briginshaw [1938] HCA 34).

1.

The magistrate did not err in finding the conduct amounted to domestic violence under the Act. The appellant’s complaints to police were ‘over-reaching, baseless or made for a collateral purpose’ ([44]). They were not made for the purpose of protecting the children as submitted by the appellant, but rather to harass the respondent. This, together with the appellant’s threats to the children, impacted the respondent and caused her to live in substantial fear for her own safety and the safety of her children, her partner and his children. The complaints to police were harassing and intimating to amount to emotional and psychological abuse. They were also threatening and controlling or dominating to cause fear to the respondent’s safety. Therefore, the behaviour fell within the definition of domestic violence under ss 8(1)(b),(d) and (f) of the Act.

In finding that the complaints amounted to domestic violence, the magistrate accepted the uncontested facts and rejected the appellant’s evidence where it conflicted with other witnesses. There were no identifiable incontrovertible facts or uncontested testimony to demonstrate the magistrate erred in making these conclusions about the evidence.

2.

The proceeding in making the protection order was not frivolous or vexatious: ‘It could not be characterised as being of little or no weight, worth or importance, and thereby frivolous. It is not usual for proceedings of this nature to trouble, annoy, or distress one of both parties. That may be natural consequence of the proper conduct of proceedings in the context of highly emotional family breakdown and litigation. There is no evidence of vexatious conduct in this case’ ([7]). Nor was the proceeding an abuse of process. The proceeding was commenced and maintained by the prosecution for the ‘substantial and legitimate purpose of obtaining the appropriate remedy under the Act’ ([10]).

3.

The magistrate did not err in concluding that a protection order was necessary or desirable to protect the respondent from domestic violence under s 37(1)(c) of the Act. The respondent was fearful of future domestic violence from the appellant. Therefore, the order was desirable. In coming to this conclusion, the magistrate considered and assessed that there was a risk of future domestic violence if an order was not made. The appellant and respondent remained in a dispute before the Family Court, were in contact frequently in relation to their children, and the appellant showed no remorse for his conduct. There was no requirement that the magistrate was satisfied that future domestic violence was ‘likely’. The magistrate also assessed that the appellant’s behaviour in the ongoing parental relationship was inappropriate and that he was misconceived about his ‘responsibility, entitlement and nobility, which manifested in an absence of insight into the consequences of his actions’ ([16]). These findings were open on the facts. Therefore, the magistrate exercised his discretion properly and reasonably in making the protection order against the appellant.

BJH v CJH [2016] QDC 27 (26 February 2016) – Queensland District Court

‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Meaning of domestic violence s 8’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Risk’ – ‘Whether it was necessary or desirable to make an order to protect the aggrieved’

Appeal Type: Appeal against a Protection Order.

Facts: The appellant appealed against a magistrate’s decision to make a Protection Order requiring him to be of good behaviour towards the aggrieved (his partner) and her son. The order was made after a disagreement over the family meal. The appellant took the aggrieved’s mobile phone in an attempt to get her to go downstairs to discuss matters with him. The aggrieved tried to get the phone back and the appellant discarded it onto the floor, causing minor but irreparable damage to its cover. At some point, the back of the appellant’s hand came into contact with the aggrieved’s ear, causing relatively low level pain and no injury to the aggrieved. The appellant and the aggrieved continued arguing loudly until the police arrived (see [9]).

The magistrate made the following findings of domestic violence (see [10]):

•

The appellant took the aggrieved’s phone in an attempt to force her downstairs. He threw the phone to the ground in response to the aggrieved’s attempts to retrieve the phone.

•

The appellant slapped the aggrieved in a backhanded motion to the head on purpose.

•

There was constant harassment by the appellant towards the aggrieved that night that was intimidating (causing her to retreat from him). This intimidation and harassment amounted to an act of domestic violence when considered with the yelling and the banging of plates (emotional and psychological abuse).

Issue/s: Whether the magistrate erred in making a protection order under s 37 [Domestic and Family Violence Protection Act 2012 (Qld)], specifically:

1.

Whether the magistrate erred in finding that domestic violence had been committed against the aggrieved: s 37(1)(b).

2.

Whether the magistrate erred in finding that it was necessary or desirable to make the order to protect the aggrieved from domestic violence: s 37(1)(c).

Decision and Reasoning: The appeal was allowed. Rackemann DCJ held that it was open to the magistrate to conclude that there was at least some domestic violence committed by the appellant against the aggrieved. His Honour agreed that the following behaviour amounted to domestic violence under s 8 [of Domestic and Family Violence Protection Act 2012 (Qld)]:

‘The action of the appellant in seizing the aggrieved’s mobile telephone was behaviour which, in the circumstances, was coercive - being designed to compel the aggrieved to do something which she did not wish to do (ie come downstairs to discuss matters of concern to the appellant). Further, the appellant responded to the aggrieved’s attempt to get her telephone back by, amongst other things, throwing the phone onto the floor thereby damaging it. That the phone was discarded in a throwing motion had support in the evidence’ at [11].

However, beyond that, the magistrate erred in her findings of domestic violence. In light of the evidence (see consideration at [14]-[29]), the magistrate’s finding of an ‘intentional back-handed slap’ could not be supported. Further, the magistrate erred in characterising the appellant’s behaviour as emotionally or psychologically abusive – behaviour that, amongst other things, intimidates (a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour) or harasses (there must be an element of persistence): GKE v EUT. A consideration of the evidence could not support this conclusion (see [30]-[46]).

The finding of more extensive domestic violence on the night in question than what occurred further affected the magistrate’s consideration of whether an order was necessary or desirable. In reconsidering whether an order was necessary or desirable, Rackemann DCJ again noted the decision in GKE v EUT where McGill SC DCJ observed in relation to s 37(1)(c) [Domestic and Family Violence Protection Act 2012 (Qld)] that:

‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’ (see [32]-[33]).

Here, the risk was not such to conclude that the making of a protection order was ‘necessary or desirable’ on the facts as established at the time of the hearing before the magistrate in February 2015. This was in circumstances where: there was no demonstrated history of domestic violence prior to the night in question; the event was a single incident involving domestic violence which, whilst in no way acceptable, was not at the most serious end of the scale of such conduct; the aggrieved gave evidence that she was not fearful of the appellant and did not believe that she needed protection from him; and, at the time of the hearing before the magistrate, the appellant and the aggrieved had continued their relationship without suggestion of further incident (see [49]-[50]).

Commissioner of Police v DGM [2016] QDC 022 (15/3279) Kingham DCJ 22 February 2016 – Queensland District Court

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Assault occasioning bodily harm’ – ‘Breach of temporary protection order’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Temporary protection order’ – ‘Verbal abuse’ – ‘Victim’

Charges: Assault occasioning bodily harm, breach of temporary protection order (TPO) (4 counts), breach of bail (7 counts).

Appeal Type: Appeal against sentence.

Facts: Two weeks before the offending, a TPO was served on the respondent (an Aboriginal man) which named the complainant (his partner), their young son and their unborn child as protected persons. The order prohibited him from being in the vicinity of the complainant apart from authorised contact with their child with the complainant’s consent and required that he be of good behaviour towards the protected persons. The offending occurred when the respondent went to the complainant’s house to visit his son without authorisation. He approached the complainant with a metal pole and verbally abused her. He dropped the pole and walked towards the complainant with a clenched fist. He then punched, struck and kicked her which caused her to fall to the ground. She was taken to hospital and released that night. After fleeing, the respondent returned later that night, came into her yard and asked to talk to her. Police found him sitting in a car with a machete at his feet. His criminal history included property, street and driving offences, as well as a history of breaching community based orders. He had a serious drug addiction. He pleaded guilty early and was sentenced to 12 months’ imprisonment for assault occasioning bodily harm. Concurrent lesser terms for the other offences were imposed. The offending also wholly activated an existing suspended sentence. He was released on parole immediately.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. Her Honour held that the Magistrate erred in taking considering the respondent’s eventual surrender to police as a mitigating factor. While the surrender was voluntary, it had to be considered in the context of numerous bail breaches leading up to sentence, which was consistent with his history of disregard for court orders. In relation to the complainant’s apparent wish to continue the relationship with the respondent, her Honour noted at [34]-[35] that – ‘Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor. Likewise, reconciliation after the victim has complained ought not mitigate the sentence. There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation. However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.’

In this case, the Magistrate correctly did not treat the complainant’s support as a mitigating factor. However, the Magistrate did err by immediately releasing the respondent to encourage his rehabilitation. Rehabilitation is an important consideration for young indigenous people with drug addictions. However, given the seriousness of the offence and the vulnerability of the victim, the need for denunciation and deterrence outweighed the need for rehabilitation. In citing comparable authorities, (see from [45]-[62]), her Honour then concluded that the sentence was manifestly inadequate. The respondent was re-sentenced for assault occasioning bodily harm to 18 months’ imprisonment, with parole release set at the one third mark in the sentence. A conviction for a domestic violence offence was recorded.

Green v Queensland Police Service [2015] QDC 341 (27 November 2015) – Queensland District Court

‘Contravention of a domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Prior history of contravention of domestic violence orders’ – ‘Sentencing’ – ‘Too much emphasis on prior criminal history’ – ‘Totality’

Charge/s: Contravention of a domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The appellant was 24. He had a criminal history, including nine previous convictions for contravention of domestic violence orders. The appellant was hospitalised when his female partner, the aggrieved, stabbed him in the leg and foot with a knife during an argument. A temporary protection order was made prohibiting the appellant from contacting the aggrieved. The stabbing incident was not the subject of any charge. Over the next two days, the appellant contacted the aggrieved on her mobile phone 60 times. These calls did not involve any threats or actual violence. The appellant was on parole for a sentence imposed at an earlier time. The appellant was sentenced to six months imprisonment, which was to be served cumulatively upon the 15 month prior sentence.

Issue/s: The magistrate erred in two significant respects which resulted in an excessive sentence:

1.

The magistrate placed too much emphasis on the appellant’s criminal history for like offending and imposed a sentence which was disproportionate to the gravity of the instant offence; and

2.

In imposing a cumulative term, the magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate.

Decision and Reasoning: The appeal was allowed. First, Morzone QC DCJ noted that the surrounding circumstances, the appellant’s criminal history and the stabbing incident, were properly provided by the prosecution by way of context for the subject offending. However, His Honour continued at [17]:

‘[t]he danger was that that context could potentially take on an overwhelming character with the prospect of elevating the nature of the offending the subject of the sentence. It seems to me that that danger was realised and can be demonstrated by the sentencing remarks of the magistrate where she conflated the past criminal history, other intervening behaviour and the subject offending’.

Here, the criminal history and the conduct that constituted it were not as proximate to the subject offending as apprehended by the magistrate. Evidence of the stabbing was accepted in the context that the police did not press charges against the aggrieved but the magistrate determined that the aggrieved was acting in self-defence. Further, there was little or no regard given to any particular findings of fact surrounding the subject offending, namely, the 60 occasions of telephone contact. Rather, this was relegated to almost incident behaviour. Thus, Morzone QC DCJ held that ‘[b]y conflating the historical criminal behaviour and other violent behaviour with the subject offending, it seems to me that Her Honour mistook the facts and allowed erroneous or irrelevant matters to guide or affect her exercise of discretion’ (see [18]-[21]).

Second, Morzone QC DCJ held that at [30]:

‘the magistrate acted on a wrong principle by characterising the pre-existing sentence to a “different issue altogether” because the appellant breached his parole by reoffending. She apparently had no regard to the “period of imprisonment” required by section 160F of the [Penalties and Sentences Act 1992 (Qld)]… and the extension of the totality principle … It seems to me that her approach caused her to fall into error by failing to take into account material considerations of the whole period of imprisonment (including the balance of the previous sentence), reviewing the aggregate sentences and considering whether the latter was just and appropriate’.

The appellant was re-sentenced to three months imprisonment, to be served concurrently with the existing sentence.

TZL v Commissioner of Police [2015] QDC 171 (3 July 2015) – Queensland District Court

‘Breach of domestic violence order’ – ‘Criminal history’ – ‘Deterrence’ – ‘Minor breach’ – ‘Sentencing’

Charge/s: Breach of domestic violence order.

Appeal type: Appeal against sentence.

Facts: The appellant pleaded guilty and was convicted for contravening a domestic violence order and sentenced to 10 months’ imprisonment. The order prohibited the appellant from contacting the aggrieved apart from matters in relation to their child. He breached this condition by 41 sending emails over an 11 week period, the content of some of which were not solely in relation to their child. He was released on parole on the day of sentence. The appellant had an ‘appalling’ (see at [21]) history of breaching protection orders – consisting of 10 total convictions of which 8 related to the aggrieved. In fact, he was on probation for these offences when this offence was committed.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. Kingham DCJ acknowledged at [17] that this was an ‘unusual’ sentence. There was no physical violence, actual or threatened. There was no intimidation or any harassing or controlling behaviour. While there were 41 emails, they were sent over an 11 week period and not all of them breached the order as some were related solely to the child. There was also one very minor personal contact at a child care centre. Kingham DCJ found these facts in combination do not warrant a sentence of imprisonment. Notwithstanding, the appellant’s clear ‘disdain’ ([21]) for protection orders as evidenced by his criminal history warranted a strong element of personal deterrence in the sentence. However, her Honour emphasised that the purpose of the sentence was not to punish the appellant again for prior offending, and that the Magistrate, ‘gave the Appellant’s prior history such weight that it led to the imposition of a penalty which was disproportionate to the gravity of this offending’ (See at [22]). As such, the Court concluded (while also taking into account comparable authorities) that the sentence was excessive. It was reduced to 6 months. The immediate parole release was not changed.

MDE v MLG & Queensland Police Service [2015] QDC 151 (2 June 2015) – Queensland District Court

‘Necessary or desirable test’ – ‘Protection order’ – ‘Three stage approach’

Appeal type: appeal against a protection order.

Facts: On 17 October 2014, a police officer made an application for a protection order against the appellant (MDE) for the benefit of the first respondent (MLG) under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). MDE had been continually harassing MLG over the phone and outside her apartment (see [1]-[6]). On 23 October 2013, a temporary protection order was issued with the standard condition (under s56 DFVPA) that “the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.” Three months later, on 21 January 2015, the Magistrate heard the application and decided to issue a protection order against MDE having been satisfied the requirements under s 37 of DFVPA could be established. The order incorporated the standard condition under s 56 and other conditions under s 57 of the DFVPA ([13]).

Issues: The appellant appealed against the Magistrate’s decision on six grounds, of which the first three questioned the correctness of the Magistrate’s application of s 37 of the DFVPA and the last three concerned procedural and fact-finding errors on the Magistrate’s part (see [18]). Relevantly, the first ground of appeal was that the Magistrate failed to follow, as required, the decision in GKE v EUT [2014] QDC 248 at [33] which provides that a future ‘risk’ of violence must be considered and, if absent, a protection order should not be issued (see [64]).

Decision and reasoning: The appeal was allowed and the protection order was therefore set aside.

The second and third grounds of the appeal (see [69] and [56] respectively), along with the fourth, fifth and sixth grounds (see [73]-[79]), were rejected by Morzone QC DCJ (see [72] and [63] respectively). The first, however, was allowed.

Morzone QC DCJ found that the Magistrate relied on erroneous or irrelevant matters and principles in their determination of whether the order was “necessary or desirable” ([68]). Specifically, his Honour highlighted at para [65]-[66] that the Magistrate’s reasons confused the requirements set by s 37(1)(a) and s 37(1)(c). His Honour further noted that the Magistrate failed to expressly examine the material considerations relevant to s 37(1)(c) and (2) ([67]). These included the nature and risk of future domestic violence, the protective needs of the aggrieved (if any), and, if a need was found, how imposing a protection order would be “necessary or desirable” to meet those needs ([67]).

The Magistrate’s decision was therefore considered unreasonable by Morzone QC DCJ. This prompted his Honour to re-examine the third element posed by s 37(1)(c), that is, whether a protection order is necessary or desirable to protect the aggrieved from domestic violence ([84]).

Importantly, earlier in his judgement, Morzone QC DCJ expressed the view that the third element of s 37(1) requires a three-stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the DFVPA) (see [55]). In short, the three steps involve (1) assessing the risk of future domestic violence between the parties in the absence of any order, (2) the need to protect the aggrieved from that domestic violence in the absence of any order, and (3) whether imposing an order is “necessary or desirable” to protect the aggrieved from the domestic violence (see [55]).

Upon analysis of the evidence in para [85]-[89], Morzone QC DCJ reached the conclusion that the first and second stage cannot be established, meaning the imposition of a protection order was neither necessary nor desirable to protect MLG from the domestic violence and therefore, the protection order ought not remain in force.

SM v AA [2015] QDC 172 (29 May 2015) – Queensland District Court

‘Domestic violence order’ – ‘Ex parte application’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Verbal abuse’

Appeal Type: Application for an extension of time in which to file an appeal against the variation of a domestic violence order.

Facts: The appellant (the respondent in a domestic violence order) failed to appear at the Magistrates’ Court for an application to extend the order. The Magistrate noted appellant’s absence. The Court proceeded to ‘hear and decide the application’ pursuant to section 94 of the Domestic and Family Violence Act 2012 (Qld).

Issue/s: Whether the Magistrate correctly heard and decided the matter.

Decision and Reasoning: The appeal was allowed. Judge Reid considered the remarks of the Magistrate. The remarks did not consider the reasons put before the Court by the applicant as to why the domestic violence order should be extended. These reasons included allegations of physical and verbal abuse and multiple breaches of the order. Instead, the Magistrate simply made the order and considered whether the order should be extended for 18 months or for two years. Judge Reid was concerned that the Magistrate dealt with the matter, ‘merely as a rubber stamp exercise’. There was nothing in the Magistrate’s remarks to indicate that she had read the material to ascertain whether or not the breaches of the order actually occurred. There was little or no particularity in the allegations, specifically about when or where the breaches occurred. In circumstances where parties do not attend, it is incumbent upon the Magistrate to ‘hear and decide’ the matter, even if it is entirely upon affidavit evidence. The transcript did not indicate that the Magistrate considered the question at all. As such, the order was set aside.

LKL v BSL [2015] QDC 337 (15 May 2015) – Queensland District Court

‘Affidavit evidence’ – ‘Domestic violence order’ – ‘Evidence’ – ‘Procedural fairness’

Appeal Type: Appeal from dismissal of application for protection order.

Facts: The appellant appeared unrepresented in the Magistrates’ Court and filed for a protection order pursuant to the Domestic and Family Violence Act 2012 (Qld). She was initially granted a temporary protection order in the Magistrates’ Court. The Magistrate then made directions to the effect that the evidence of all witnesses in support of the application was to be filed as affidavit evidence. No such affidavit evidence was provided. The appellant believed that the application itself, without further affidavit evidence was sufficient. The application for the protection order was then refused, with the Magistrate concluding that there was no material before the Court (see further at [7]-[9]).

Issue/s: Whether the aggrieved in a protection order application can rely solely on the application without further affidavit evidence.

Decision and Reasoning: The appeal was upheld. The Domestic and Family Violence Act 2012 (Qld) makes clear that the formal rules of evidence do not apply and gives the Court broad powers to ‘inform itself in any way it considers appropriate’ (see s 145). However, the court obviously still has an obligation of procedural fairness. Dick SC DCJ explained that in hearing and determining an application for a protection order, ‘there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter’ (See at [11]). The Magistrate’s directions did not exclude the appellant’s sworn application as evidence. Therefore, the Magistrate’s conclusion that there was no material before the Court was an error of law. The Magistrate did not consider and determine the application. As such, it is clear that an aggrieved person can rely solely on the application as evidence without the need for further affidavit evidence. The respondent can then respond to the application if they choose. The application was remitted back to the Magistrates’ Court for determination by a different magistrate.

GKE v EUT [2014] QDC 248 (27 August 2014) – Queensland District Court

‘Costs’ – ‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following harassing, monitoring’ – ‘Harassing’ – ‘Intimidation’ – ‘Necessary or desirable’ – ‘Systems abuse’

Appeal Type: Appeal against the making of a domestic violence order.

Facts: A domestic violence order was made in the Magistrates’ Court against the appellant in favour of the respondent. There had already been orders made in the Family Court in relation to arrangements for their three children. The appellant filed for enforcement of these orders in the Family Court. He attended the respondent’s home for the purpose of serving court documents. When the respondent opened the door, she closed it immediately because she felt frightened. This incident and other prior incidents led to the application for the order.

Issue/s:

1.

Whether the appellant’s commencement of proceedings in the Family Court and the personal service of documents on the respondent constituted intimidation or harassment sufficient to meet the definition of emotional or psychological abuse and therefore domestic violence within the meaning of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

2.

Whether a protection order was necessary or desirable to protect the respondent from domestic violence.

3.

Whether costs should be awarded against the respondent.

Decision and Reasoning: The appeal was upheld.

1.

McGill DCJ upheld the Magistrate’s finding that the incident at the respondent’s home constituted domestic violence. His Honour considered the definition of ‘emotional and psychological abuse’ in s 11 of the Act. He noted that the issue is whether the behaviour is subjectively intimidating or harassing to the other person. Therefore, evidence of the subjective response of the aggrieved is relevant (see at [21]). His Honour noted at [22] that while examples in the Act refer to persistent conduct, intimidation within the meaning of s 11 could arise from a single incident. However, harassment cannot arise from a single incident. His Honour stated that there has to be ‘some element of persistence’ such that, ‘It is not just a question of whether the aggrieved finds something upsetting’ (see at [23]). As such, while the incident at the house amounted to domestic violence, the Family Court application itself was not an example of domestic violence –

‘I suspect it would be possible for the making of repeated applications to the Family Court without justification to amount to “harassment”, though it would have to be a clear case; it would certainly not be harassment simply because from time to time the respondent denied the appellant access to the children and he made an application to the Family Court to obtain it’ (see at [20]). The mere fact the appellant takes steps to enforce Family Court orders does not and cannot constitute domestic violence. Conversely, the respondent unjustifiably withholding the children cannot justify domestic violence by the appellant.

2.

McGill DCJ noted that this question is concerned with the future. Another relevant consideration was that while the respondent did not want to see the appellant at all, the terms of the Family Court order and the presence of the children dictated that there had to be some continuing contact between the parties.

See at [32] – ‘In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that…I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made….’

The evidentiary basis for this risk must amount to more than the mere possibility of such conduct occurring (See at [33]). It is also relevant to consider the seriousness of the violence that is threatened, the credibility of the threat and the practical consequences of the order on the person against whom the order is made. For example, a no contact order ought not be made where some contact is necessary in relation to children (see at [42]-[43]). In applying these principles, his Honour found that it was not necessary or desirable to make an order. His Honour noted that while it was possible that circumstances could arise which amount to intimidation, the issues relating to the children remain in the Family Court. It would not be appropriate to make a protection order to interfere with the appellant’s right to enforce his rights in that jurisdiction. There was no real risk of domestic violence as long as the respondent complied with the Family Court orders (see at [67]).

3.

Costs were not ordered in favour of the appellant. Section 157 of the Act provides that each party must bear their own costs unless the court decides that their application was malicious, deliberately false, frivolous or vexatious. It is not clear whether this section applies to an appeal. However, his Honour concluded that while the general power to award costs under s 15 of the Civil Proceedings Act 2011 has not been expressly excluded by the Act, that power should be exercised having regard to the specific costs provision in s 157. Therefore, it is not simply a matter that costs follow the event for this type of proceeding. In any case, an adverse costs order against the respondent was not appropriate.

TND v Queensland Police Service [2014] QDC 154 (18 July 2014) – Queensland District Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Breach of domestic violence order, assault of a police officer.

Appeal Type: Appeal against sentence.

Facts: The appellant and the aggrieved were drinking, then returned home (in the Normanton district). Following a dispute, the appellant became agitated and punched the aggrieved, causing a minor injury. After police were called, officers were forced to use capsicum spray to subdue the appellant. He continued to threaten violence after his arrest. He had a long criminal history including many property and drug offences. He had one prior conviction for breaching a domestic violence order, for which he was fined $100. He submitted this matter was not one of ‘significant gravity’ (See at [9]). The appellant submitted in the Magistrates’ Court that the relationship was not one characterised by violence. Following pleading guilty, he was sentenced to six months’ imprisonment with immediate parole release for the breach offence. He was sentenced to one month imprisonment wholly suspended for an operational period of nine months for the assault offence. In his sentencing remarks, the Magistrate referred to crime statistics and noted the prevalence of breaches of domestic violence orders and offences against police in the Normanton district, which necessitated a strong element of general deterrence in sentencing.

Issue: Whether the sentence for the breach offence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The Court acknowledged that the Magistrate did err by not properly indicating how he took into account of the plea of guilty, and by using the statistics, which were found to not be reliable. Mitigating factors included the appellant’s youth and his early plea of guilty. The relationship was long-term and was not characterised by actual violence. His criminal history, while relevant, was minor. However, at [35] Bradley DCJ emphasised that domestic violence involving psychical violence is a serious issue and the appellant did cause some injury to the aggrieved. He had been recently convicted of breaching a protection order and general and specific deterrence were important. He was subject to various court orders when he committed the offence. The maximum penalty was three years. As such, the sentence was held to be appropriate.

R v MKW [2014] QDC 300 (18 June 2014) – Queensland District Court

‘Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double jeopardy and other charges’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay of proceedings’ – ‘Physical violence and harm’

Charge/s: Grievous bodily harm.

Proceeding: Application for a permanent stay of proceedings.

Facts: An indictment before the District Court charged the applicant with grievous bodily harm. The incident involved the applicant drinking alcohol in a group which included the complainant (his de facto partner). An argument ensued. The applicant struck the complainant with a collapsible chair. He was charged with breaching a domestic violence order, pleaded guilty in the Magistrates’ Court and was sentenced to 12 months’ imprisonment with parole release after four months. The police then obtained a medical report indicating that the complainant’s injuries, if left untreated were likely to have caused ‘disfigurement or loss of vision’ and could have proved life threatening (see at [3]). As a result, he was then charged with grievous bodily harm (GBH) three days after being released from custody.

Issue/s: Whether the continued prosecution of the GBH charge would constitute an abuse of process under s 16 of the Queensland Criminal Code because the applicant had already been punished for the same act.

Decision and Reasoning: The application was dismissed. O’Brien DCJA considered the test as applied in R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014). His Honour concluded at [9] that the applicant was punished in the Magistrates’ Court for the act of striking the complainant with the chair and that it was this same act which formed the basis of the GBH charge. Ordinarily, to punish the defendant again for that same act would contravene s 16 of the Code. However, the Crown submitted that s 138 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) operates to authorise the continued prosecution of the GBH charge. The Court accepted this argument. The crucial issue was whether the original prosecution for the breach offence against the Act constituted a ‘proceeding’ under that act. If it did, s 138(3)(a) would apply so that the prosecution for the breach offence would not affect any other proceeding against the applicant arising out of the same conduct. His Honour concluded that the prosecution for the breach offence was a proceeding under the Act (see at [15]). As such, R v Dibble; ex parte Attorney-General (Qld) (where a permanent stay was granted) was distinguished on the basis that the Act specifically authorises continuation of the prosecution. However, this issue has not been authoritatively resolved and uncertainty remains. See at [17] where his Honour states –

‘I should add that, if my tentative view of s 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether s 16 of the Code prohibits him being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.’

See pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book and the summary of R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) for further information.

CPS v CNJ [2014] QDC 47 (21 March 2014) – Queensland District Court

‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘Establish relationship with victim's former partner’ – ‘Harassing’ – ‘Meaning of domestic violence’ – ‘Protection order’ – ‘Protection order necessary or desirable’ – ‘S 8(1) of the Domestic and Family Violence Protection Act 2012 (Qld)’ – ‘Separation’

Matter: Appeal against the making of a protection order.

Ground: The magistrate erred in making a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (‘DFVPA’).

Facts: The appellant male and respondent female had been in a relationship from May until late September or early October 2021. The magistrate hearing the original application found that both parties lived as though in ‘a soap opera’, behaving in puerile, immature and childish ways. The conduct of the appellant was identified as ‘repeated early contact amounting to harassment’. Further, complaints about property amounted to harassment. After the relationship between the respondent and appellant came to an end, the appellant sought out the respondent’s ex-partner and struck up a relationship with him.

Decision and Reasoning: The continuous contact with the respondent following the end of the relationship, as well as the contact with the respondent’s ex-partner, were found to be capable of constituting domestic violence. The appellant’s conduct was capable of falling into one or more of the categories enumerated in s 8(1) of the DFVPA, namely, behaviour that is “emotionally or psychologically abusive” and/or “is threatening” and/or “coercive” or “in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing of that of someone else”.

However, the court was not persuaded, on balance, that the actions of the appellant in seeking out and striking up a relationship with the respondent’s ex-partner was sufficient to persuade the magistrate that a protection order was ‘necessary or desirable to protect the respondent from domestic violence’ in future. Therefore, it was found that the domestic violence order should not have been made.

W v Queensland Police Service [2013] QDC 87 (2 May 2013) – Queensland District Court

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Criminal history’ – ‘Physical violence and harm’ – ‘Possession of dangerous drug’ – ‘Sentencing’

Charge/s: Assault occasioning bodily harm, breach of domestic violence order, possession of dangerous drug.

Appeal type: Appeal against sentence.

Facts: Following an argument with the complainant, the appellant followed her, grabbed her by the harms and threatened her. She broke free, but was punched by the appellant in the right side of the jaw, causing her to bleed profusely. He was highly intoxicated. That constituted the assault offence. He was found to be in possession of cannabis at the time. The breach involved the same complainant. That offence occurred when she was heavily pregnant. The appellant demanded she have sex with him and she refused. He threw her phone at her and punched a door. He was intoxicated. He had a criminal history consisting of various street offences, one conviction for assault occasioning bodily harm and one conviction for breaching a domestic violence order. He was sentenced to three months’ imprisonment for the breach charge and nine months’ imprisonment for the assault charge, and fined $400 for the drug charge.

Issue/s: Whether the penalty was too severe. More specifically, there were issues concerning –

1.

Whether the Magistrate misapplied Earl v Heron [2011] QDC 183.

2.

Whether the Magistrate gave excessive weight to the appellant’s criminal history and the need for specific deterrence.

Decision and Reasoning: The appeal was dismissed.

1.

In relation to Earl v Heron, the appellant submitted inter alia that - in that case the offender committed a random act of violence on a stranger. This case concerned violence during a heated domestic argument between long term spouses, which makes this cases less serious. This argument was dismissed – with Smith DCJ concluding at [44] – ‘I do not accept the submission that an act of violence during a heated domestic argument between spouses is necessarily less serious than a random act of gratuitous violence on a stranger. It all depends upon the circumstances of the particular case.’ His Honour went on to make clear that the courts cannot condone either type of violence.

2.

In relation to the appellant’s criminal history, the Court concluded that the Magistrate was entitled to take into account the relevant prior convictions, and was also entitled to consider the injuries caused (a broken jaw), which were ‘reasonably significant’ (See at [50]). This made it an offence not at the low end of the scale.

MAA v SAG [2013] QDC 31 (28 February 2013) – Queensland District Court

‘Abuse of process’ – ‘Breach of protection order’ – ‘Children’ – ‘Coercive control’ – ‘Following, harassing, and monitoring’ – ‘Stepchildren’ – ‘Systems abuse’ – ‘Use of authorities’

Proceedings: Appeal against protection order.

Facts: The appellant and the aggrieved were in a domestic relationship from 2007 to 2009 [6]. The appellant sent the aggrieved abusive and derogatory text messages and disturbed the aggrieved’s place of residence, which prompted her to change the locks. The aggrieved accused him of shoving and pushing her when she was pregnant with one of their children in 2008.

The appellant made numerous baseless complaints to a range of governmental bodies to intimidate the aggrieved, including:

1.

the Queensland Ombudsman.

2.

the Anti-Discrimination Commission of Queensland.

3.

the Registry of Births, Deaths, and Marriages, regarding the registering of their daughter’s name, with the result that this was not registered until the Family Court made an order in relation to her name.

4.

Centrelink, which lead to an investigation of the aggrieved’s parenting payments.

5.

the Commission for Children and Young People.

6.

the Child Guardian.

7.

Queensland Health.

8.

The Health Quality and Complaints Commission.

9.

The Medical Board, against the children’s medical practitioner.

10.

Legal Services Commission, against her legal representatives.

11.

The Family Court where a notice of Child Abuse and subsequent investigation concerning the aggrieved’s three daughters.

12.

Complaints of abuse and her parenting that lead to a police investigation and welfare checks; and

13.

The initiation of two unwarranted and dismissed court proceedings by the appellant against the aggrieved

Grounds of Appeal: The Magistrate erred in finding that the appellant committed an act of domestic violence against the aggrieved and that the appellant is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence [24].

Decision and reasoning: Appeal dismissed.

It was open to the Magistrate to reject the appellant’s evidence that he committed the acts of complaining to numerous bodies for bona fide reasons [36]. The appellant’s numerous complaints to governmental bodies were unjustified and an abuse of process and were made to and had the effect of harassing and intimidating the aggrieved [38]. That the aggrieved’s children were subject to repeated investigation was further evidence of the harassment caused by the appellant.

The appellant's intimidation and harassment, on the evidence, amounted to acts of domestic violence and there was proper basis that the appellant would likely commit a further act of domestic violence. The aggrieved’s daughters also required protection.

Singh v Queensland Police Service [2013] QDC 37 (20 February 2013) – Queensland District Court

‘Aggravating factor’ – ‘Breach of bail condition’ – ‘Breach of domestic violence order’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’

Charge/s: Breach of domestic violence order (2 counts), breach of bail condition.

Appeal Type: Appeal against sentence.

Facts: The appellant pleaded guilty in the Magistrates’ Court to two counts of breaching a domestic violence order. The order prevented him from directly or indirectly contacting the aggrieved. The parties had been in a de facto relationship for five years. The first count involved the appellant standing over the aggrieved, pointing menacingly at her. He was taken into custody and released on bail with a no contact condition. In breach of this condition, he attended her home, yelled insults at her, broke property, head butted an informant and verbally abused her, all in the presence of their children and a witness. The Magistrate acknowledged that the presence of the three young children was a serious aggravating feature. The appellant had a relevant criminal history, including four previous domestic violence convictions committed against the aggrieved. The Prosecutor provided minimal assistance to the Magistrate as to the appropriate sentence. He was sentenced to nine months’ imprisonment followed by two years’ probation for each count, to be served concurrently. He was convicted and not further punished for the breach of bail.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was initially dismissed. Robertson DCJ commented that it is ‘regrettable’ (see at [7] & [25]) that the prosecutor did not provide the Magistrate with any assistance as to the appropriate sentence. The Court held that these acts were a ‘nasty and prolonged’ (see at [29]) example of domestic violence against a vulnerable complainant, by an offender who had a long history of violence against the same woman. He had previously shown disregard for court orders, and in this case also showed complete disregard for the bail undertaking. The only mitigating factor was the early plea of guilty. While the sentences were ‘severe’, they were not so severe as to amount to an error by the Magistrate.

(The appeal was then re-opened and upheld due to a procedural issue with taking into account the appellant’s prior convictions following the Court of Appeal’s decision in Miers v Blewett [2013] QCA 23 (22 February 2013). The requisite notice was not given, so the appellant’s prior convictions could not be taken into account. However, the Legislature has now amended s 47 of the Justices Act 1886 to ensure that prior convictions can be taken into account in sentencing whether or not notice has been served.)

LCJ v KGC and Commissioner of Police [2012] QDC 67 (30 March 2012) – Queensland District Court

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’

Appeal Type: Appeal against a protection order.

Facts: The appellant applied for and was granted a protection order (under the then Domestic and Family Violence Protection Act 1989 (Qld)). The applicant (the respondent/aggrieved) tendered evidence to the Magistrate that the appellant was physically violent to her on two occasions by grabbing her around the neck. There was also evidence that the appellant threatened to kill her if she went to the police. There was a history of violence in the relationship, which had involved verbal and physical abuse and controlling behaviour since 1992.

Issue/s: Some of the issues concerned –

1.

Whether it was open to the Magistrate to be satisfied that the appellant committed domestic violence against the aggrieved.

2.

Whether it was open to the Magistrate to be satisfied that the appellant was likely to commit further domestic violence against the aggrieved.

Decision and Reasoning: The appeal was allowed and the protection order was discharged.

1.

In relation to whether the Magistrate’s conclusion that the appellant committed domestic violence against the applicant was correct, Irwin DCJ concluded that the Magistrate was entitled to prefer the evidence of the applicant’s witnesses over the unsigned statements of the appellant and his witnesses. The statements tendered by the applicant were signed. The appellant’s statements were not. It was also open to the Magistrate to conclude that the appellant had continually harassed and intimidated the applicant.

2.

However, Irwin DCJ concluded that it was not open on the evidence for the Magistrate to conclude that the appellant was likely to commit an act of domestic violence again, or carry out a threat to do so. After the application was made, the applicant stated that the appellant had left the house where they were living, had not returned and there had been minimal contact since a temporary protection order was made. There was no evidence of physical violence and she said she did not feel threatened by him. As such, there was not sufficient evidence to support an inference that domestic violence was likely to occur again. While there were a string of emails that did constitute harassment, the last of these were 12 months before the Magistrate made the protection order. The appellant had also clearly indicated he wished to have no further contact with the applicant.

Magistrates' Court

WJM v NRH [2013] QMC 12 (3 May 2013) – Queensland Magistrates’ Court

‘Desirable’ – ‘Domestic violence order’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Principle of paramount importance’

Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).

Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved. After finding out that her husband had been having an affair, there was a violent incident between the aggrieved and the respondent. This involved the respondent punching the aggrieved extremely forcefully. The aggrieved had no family in Australia. The aggrieved and the respondent had taken steps to reconcile, including seeing a psychologist. The respondent had not yet seen a personal therapist to deal with anger management issues. The aggrieved claims to now feel supported by her husband and his family. She stated that if she feels scared she would move back home to China, and that making a protection order would not impact on how safe she feels.

Issue/s: Whether the protection order should be made.

Decision and Reasoning: The order was made. Contanzo JJ applied the principle of ‘paramount importance that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount’. His Honour found that it was ‘desirable’ to protect the aggrieved from the risk of further domestic violence by her husband. In making the order, his Honour noted the severity of violence used by the respondent – ‘As a matter of logic and common sense, the more severe the violence exhibited by a perpetrator, the more risk there is that serious violence will be used again unless there has been an appropriate and sufficient intervention. The gravity of the situation is that the degree of violence used was inexplicable and irrational’ (See at [53]).

It was noted that this case involved balancing the public interest of preventing domestic violence with private rights in a marriage. In this case, would an order ‘”get in the way” of the ongoing reconciliation by the parties?’ (See at [20]).

His Honour concluded that the ‘reduction of stressors on their relationship’ had not gone far enough to negate the risk of further domestic violence. The aggrieved remained vulnerable to further domestic violence, though less vulnerable than she had previously. As such, even though the aggrieved did not feel she needed to be protected from her husband, it remained desirable that she be protected with an order. However, the order made went ‘no further than is necessary for the purpose of protecting the aggrieved from the respondent’ (See at [58]).

Armour v FAC [2012] QMC 22 (21 November 2012) – Queensland Magistrates’ Court

‘Cross-jurisdictional applicability’ – ‘Domestic violence order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following, harassing, monitoring’ – ‘Necessary or desirable’ – ‘Physical violence and harm’ – ‘Principle of paramount importance’

Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).

Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved.

Issue/s: Whether the respondent committed domestic violence against the aggrieved, and whether the protection order was ‘necessary or desirable’ as required under section 37(1)(c) of the Act.

Decision and Reasoning: The protection order was made, with Constanzo JJ concluding that it was necessary and desirable to protect the aggrieved from domestic violence. In relation to the meaning of ‘necessary or desirable’, his Honour noted that the test is framed in the alternative. A court may make a protection order if it considers it ‘desirable’ but not ‘necessary’ and vice versa. His Honour then considered the plain English meanings of both words (See at [17]). A finding that it is ‘necessary or desirable’ to make an order must arise out of a need to protect the aggrieved from domestic violence with the terms of the order (see at [18]). This need for protection, ‘must be a real one, not some mere speculation or fanciful conjecture’ (See at [19]). This involves an assessment of risk that is faced by the aggrieved. While the risk of further domestic violence must actually exist, it is not necessary that the need or the risk be significant or substantial. However, it must be, ‘sufficient…to make it necessary or desirable to make the order in all the circumstances’ (See at [20]).

In considering whether a protection order is ‘necessary or desirable’, a court must have regard to section 4 of the Act, but can have regard to other matters if relevant. For example, in the old equivalent legislation, the test was one of likelihood. It involved the court considering whether the evidence indicates that there was, ‘some real, significant likelihood’ that further acts of domestic violence would be committed. Something more probable than a mere ‘chance or risk’ was required (See at [23]). This test is not mandatory in the new legislation, but is still a relevant consideration. That is, if the evidence indicates that a respondent is likely to commit an act of domestic violence again, it may be ‘necessary or desirable’ to make a protection order under the new legislation. However, the likelihood test is clearly not determinative (See at [25]). Sometimes it may be appropriate to make an order if the risk is only ‘possible’ as opposed to ‘likely’ (See at [65]). See in particular from [27]-[70], where Contanzo JJ engages in detailed comparisons of the equivalent provisions in all state and territories, as well as analogous Commonwealth legislation. At [47], his Honour explains how provisions from one state or territory can be relevant to courts in another –

‘While the legislation in other States cannot affect the jurisdiction of this court, the types of considerations referred to by the various Acts may provide some insight into the types of considerations which may, in appropriate cases, be relevant considerations in the determination of whether it is necessary or desirable for this court to make an order. They certainly do not provide anything approximating an exhaustive list of possible relevant circumstances. Whether they are relevant will depend on the law in Queensland and on the facts and live issues of each case. What weight ought to be given to any such relevant circumstance must also depend on the overall facts and circumstances of each hearing. The types of considerations referred to by the various Acts may simply provide this court with some inkling about the types of considerations legal minds, and judicial minds, may need to bring to bear on the determination of issues raised under the Queensland Act. However, I have taken great care to look at the context in which each of the other state laws is drafted.’

At [52]-[70], his Honour extrapolated the relevance of the Court’s power to make orders prohibiting conduct under section 1323 of the Corporations Act 2001 to domestic violence issues. The discretionary considerations listed in section 1323 may be relevant when a Magistrates’ Court is considering whether to make a protection order to protect the aggrieved from, ‘coercive, deceptive or unreasonably controlling economic abuse’ as well as other types of domestic violence (See at [56]).

In determining whether it is ‘necessary or desirable’ to make an order, a court will need to engage in a balancing exercise of public and private rights. That is, does the public interest in preventing domestic violence outweigh the private rights of the relevant parties? (See at [57] & [96]). At [61], his Honour observed that it may be ‘necessary or desirable’ to make an order, ‘even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist,’ and that, ‘if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution.’

At [63], his Honour stated that it may be ‘necessary or desirable’ to make an order by having regard to evidence apart from the evidence that establishes domestic violence has been committed. All facts and circumstances may be considered, including evidence, ‘which is properly before the court but which was not led by or relied upon by the applicant.’ A court can draw reasonable inferences from this evidence, such as inferences that a respondent induced an aggrieved to withdraw their complaint or to commit perjury.

Another factor is the gravity of the situation. That is, even if on the evidence it could not be said that it was ‘necessary’ to make an order, the gravity of the situation could indicate that it would be still ‘desirable’ to protect the aggrieved with the order, in which case an order can still be made.

Civil and Administrative Tribunal

ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 (8 March 2023) – Queensland Civil and Administrative Tribunal

‘Discipline finding pursuant to s7.4 of the police service administration act 1990 (qld)’ – ‘Evidence’ – ‘Police officer offender’ – ‘Protection order’

Proceedings: Police officer’s application for review of the respondent’s decision on a disciplinary finding pursuant to s7.4 of the Police Service Administration Act 1990 (Qld) and proposed sanction made 14 September 2020.

Issue: Whether the findings of domestic violence were valid, and whether the domestic violence constituted misconduct.

Facts: The first allegation was of acts of domestic violence committed against the applicant’s wife following their separation after the discovery of her affair. The applicant was alleged to have read her texts, private emails and Skype account messages and had consented to the grant of a protection order to his wife.

The final four aspects of contravened conduct were unrelated to domestic violence.

Decision and reasoning: Domestic violence was made out, and held to be unacceptable conduct from a police officer in a private setting and therefore misconduct.

The Tribunal found that the applicant’s consent to the protection order was not evidence of acts of domestic violence, as no admissions were made in the order and its terms had no suggestion of acts of domestic violence. On the evidence, the Tribunal was satisfied that the applicant accessed his partner’s texts and emails without her permission but was unable to make the same finding relating to her Skype account.

The Tribunal found that a physical altercation had occurred on one occasion over the phone and that this demonstrated that the applicant’s ex-partner was at least offended by the applicant accessing her private emails and texts. Domestic violence was therefore made out under s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (includes conduct that is ‘offensive’).

In assessing whether the domestic violence constituted misconduct, the Tribunal considered whether the conduct that met that which the community could reasonably expect of a police officer. The significance of the deeply personal and distressing context of the applicant’s behaviour was noted, the Tribunal stating it made his relatively low-level behaviour explicable to the community. However, it was nonetheless found to be unacceptable conduct from a police officer in a private setting. The Tribunal confirmed the finding made at the disciplinary hearing in relation to the domestic violence matter.

NK v Director-General, Department of Justice and Attorney-General [2021] QCAT 270 (30 July 2021) – Queensland Civil and Administrative Tribunal

‘Administrative law’ – ‘Breach of protection order’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Working with children negative notice’

Proceedings: Application for external review of the Department’s decision to issue the applicant a negative notice.

Facts: The applicant’s ex-partner had been granted a ‘Protection Order for ongoing physical violence and controlling behaviour’ [13]. Within five months, the applicant was convicted of contravening the Order by being with his ex-partner and her two children, one of whom was the applicant’s son [1]. As a result, the applicant was issued with a ‘negative notice’ to work with children preventing the issue of a positive notice blue card. The applicant applied for administrative review of the Department’s decision. As the applicant had not been convicted of a ‘serious offence’, he was entitled to be issued with a positive notice unless his case was ‘exceptional’ [2]. A case is exceptional if it is not in the best interests of children to issue a positive notice.

Decision and reasoning: The Tribunal confirmed the department’s decision that the applicant’s case was exceptional.

The Tribunal assessed the risk in allowing the applicant to work with children, ‘by identifying and weighing protective factors with risk factors’ [3]. The Tribunal accepted that the applicant had taken steps to address his issues, as evidenced by his participation in a men’s behavioural change program [9]. However, the applicant was not ‘aware of the psychological and emotional impact of his behaviour on others’ nor able to ‘exercise restraint and self-control… sufficient to work with children’ [28]. The Tribunal noted that applicant’s submissions focused on ‘minimising and not admitting responsibility’ for his actions while failing to demonstrate his ability to identify the triggers for his behaviour or use appropriate coping strategies [10]. Therefore, the Tribunal was not satisfied that the applicant had reduced ‘the risk of his susceptibility to [the offending behaviour] in stressful situations’ [20]. The Tribunal noted that the applicant faced recent and serious allegations of ongoing physical violence and controlling behaviour, which included threatening to kill his partner, and subjecting her to physical and verbal abuse in front of children. This behaviour had continued despite the Order, which he had breached within 5 months of its commencement [13]. Therefore, the applicant’s ‘limited insight into the seriousness of his behaviour and its impact on others, together with evidence of ongoing coercive control’ were risk factors that outweighed protective factors and made the applicant an unsuitable candidate for working with children [26].

Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General [2021] QCAT 237 (13 July 2021) – Queensland Civil and Administrative Tribunal

‘Administrative law’ – ‘Application for financial assistance’ – ‘Coercive control’ – ‘Evidence issues’ – ‘False police reports’ – ‘Listening to Victims’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Systems abuse’ – ‘Victim as (alleged) perpetrator’ – ‘Visa threats’ – ‘Weapon’

Proceedings: Application for external review of the Department’s decision to deny an application for financial assistance.

Facts: The male perpetrator and female victim were married and living together with their infant daughter. The perpetrator was sponsoring the victim, a Taiwanese citizen, for a permanent visa. The victim reported being subjected to ‘ongoing incidents of strangulation, financial, emotional, verbal and social abuse’, and ‘control and coercion’, involving threats of deportation and child removal [21]. In December 2017, the victim reported to police that her husband had attacked her with a knife. However, due to the victim speaking ‘very limited English’ police interviewed the perpetrator only, who stated that he had been attacked by the victim [33]. In February 2019, the victim’s application for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (‘the Act’) was refused [5].

Decision and Reasoning: The original decision was set aside and returned for reconsideration with a direction that the victim was eligible for financial assistance.

Under the Act, a person who is directly injured by an act of violence is eligible for financial assistance [9]. The Tribunal reviewed the evidence of the December 2017 incident and found that it had directly resulted in an injury to the victim [39]. The Tribunal’s finding was based on evidence that the victim had been admitted to hospital with lacerations to her hand, while her husband had not required medical attention [37]. The Tribunal acknowledged that there were ‘discrepancies’ in the account provided by the victim to hospital staff but found that this was due to the language barrier and the victim’s physical state, which included dizziness [31]. The Tribunal accepted the victim’s version of events and noted that she had been ‘denied a voice’ by Queensland Police [33]. In addition, the Tribunal noted that the perpetrator’s position as the victim’s sponsor gave him ‘considerable power’ over the victim, as she was required to be in a relationship with him for 2 years to be eligible for a permanent visa [36].

SF v Department of Education [2021] QCAT 10 (13 January 2021) – Queensland Civil and Administrative Tribunal

‘Administrative law’ – ‘Applicant and children in hiding to escape domestic violence’ – ‘Application for home education registration’ – ‘Confidentiality provisions’ – ‘Following, harassing monitoring’ – ‘Human rights’ – ‘Non-disclosure of registered address’ – ‘Ongoing risk of harm’ – ‘People with disability and impairment’ – ‘Separation’

Proceedings: Application for external review of the Department’s decision to deny an application for home education registration.

Facts: The applicant and her children had moved in an attempt to escape domestic violence and were forced to hide their location to keep the family safe. The applicant’s former partner had used numerous unlikely resources to locate her. One of the applicant’s children had been diagnosed with conditions affecting their ability to learn, and the applicant applied to the Department of Education to home school the child. Although her application met the requirements for home education, the Department did not grant the application as the applicant did not provide her street number, street name and town name. Where the approved form required details of “residential address” and “address where the home education will be delivered”, the applicant inserted “address suppressed (due to privacy, see attached)” with a town name, a postal address and mobile phone number.

Decision and reasoning: The decision of the Department of Education was set aside and substituted with a decision to grant home education registration for the student.

The Tribunal found that none of the provisions of the Education (General Provisions) Act 2006 (Qld), read together or in isolation, imposed an express obligation on the applicant to disclose her street number, street name and town name (at [9]-[16]). In addition, while the approved form – which was required for the application – asked the applicant to provide details of her “residential address” and “address where the home education will be delivered”, the Tribunal found that the requirements of this will vary according to the individual circumstances of the case, within the context of the overarching objects and guiding principles. Here, the form could not operate “to require SF to disclose these details in circumstances where it compromises her and her family’s safety contrary to those objects and guiding principles” (at [17]-[26]).

The Department made a number of submissions, including that the confidentiality provisions of the Act and its own internal policies were sufficient to ameliorate the risk of unauthorised disclosure. However, the Tribunal was not satisfied that these were sufficient to ameliorate the risk, based on the applicant’s evidence and submissions regarding the circumstances of her and her children (at [29]). As at [30]-[31]:

“The risk for SF is that the confidentiality provisions and policies repose a discretion in departmental officers about the use and disclosure of information, require interpretation by departmental officers and leave it open for a person to apply to the department to access the information under the Right to Information Act 2009 (Qld) and Information Privacy Act 2009 (Qld). Moreover, adding another layer of people with access to SF’s information increases the opportunity for human error or failure, with potentially tragic and irreversible consequences.

The more information SF is required to disclose and the more people who have access to that information, the greater the risk to her and her children…”

Moreover, while it was not strictly necessary to consider the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) as the Tribunal found that the applicant had provided sufficient information to meet the procedural requirements of the application form, the Tribunal was satisfied of substantial compliance in any event (at [35]-[41]).

Finally, the Tribunal’s decision and interpretation of the statutory provisions was compatible with the Human Rights Act 2019 (Qld). As at [46]-[47]:

“SF and her children have moved to escape domestic violence. They are still at risk of harm. The child she seeks to home school has a dual diagnosis of conditions affecting the child’s ability to learn, sufficient to constitute an impairment and therefore a protected attribute under the Anti-Discrimination Act 1991 (Qld). SF has identified that her child learns best with one-on-one educational support and has tailored a detailed, goal-directed home education program suited to the child’s needs. An interpretation that would mandate SF to provide her street number, street name and town name before granting her application for home education in these circumstances, is not an interpretation that least infringes her and her family’s human rights.

Moreover, the Tribunal does not accept this interpretation limits human rights only to the extent that is reasonable and demonstrably justifiable. The Tribunal accepts SF’s evidence of the serious risk to her and her family from an interpretation mandating her to disclose her street number, street name and town name. The Tribunal does not accept that the confidentiality provisions of the Act and the Department’s own internal policies are sufficient to uphold her children’s right to protection in their particular circumstances.”

An interpretation requiring the applicant to disclose her street number, street name and town name was not necessary to achieve the purposes of ensuring the child was properly registered and the applicant was able to be contacted in circumstances where she had provided a postal address, mobile number and details of her circumstances (at [48]).

Last updated: July 2024

Queensland

Court of Appeal

R v OAC [2024] QCA 52 (9 April 2024) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Torture' - ‘Threat to kill’ - ‘Sexual and reproductive harm’ - ‘Emotional and psychological abuse’ - ‘Economic and financial abuse’ - ‘Rape’ - ‘Prevention order’ - ‘History of domestic violence and family violence’ - ‘Mental health’

Charges: 5x common assault; 2x strangulation in a domestic setting, 3x assault occasioning bodily harm, 3x deprivation of liberty, 1x torture, 1x contravention of protection order, 1x assault occasioning bodily harm while armed, 1x wilful damage, 1 x threats, 2x rape, 1x using a carriage service to make a threat to kill

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant pleaded guilty to 32 counts on three separate indictments. The majority of the offences concerned physical domestic violence against the applicant’s female partner between January and August 2019. [16]–[65]; [72] During this period, the applicant was served with and subsequently breached a protection order. [36]–[38] The most serious offending occurred within 16 hours, across two days: the applicant tortured his partner, assaulting, choking and raping her. [2]; [44]–[65]

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

the sentencing judge erred by having regard to uncharged acts; and

2.

the sentence is manifestly excessive. [12]

Decision and Reasoning : Application for leave refused. Morrison JA (with whom Mullins P and Brown J agree) dismissed the applicant’s first ground of appeal. The uncharged acts were expressly confined as forming part of the background, and at no time were framed as relevant to the offending conduct. That the uncharged acts merely provided relevant context to the domestic violence offences was appreciated by the sentencing judge. [99]–[107]

Morrison JA further dismissed the applicant’s second ground of appeal that the imposition of a serious violent offence declaration is inappropriate as the applicant suffered from serious psychological issues at the time of offending. [114] Available medical assessments did not disclose a diagnosis of ‘mental illness or abnormality’. [120]

The absence of such a diagnosis is relevant to the submission that general deterrence did not have such a call on the sentencing process that it meant a serious violent offence declaration should not be made; put another way, that making such a declaration would render the sentence manifestly excessive [121]

As is apparent from Neumann, there must be an assessment of two relevant factors present in order that the consideration of mitigating factors or that of general deterrence are affected. The first is the mental abnormality. The second is a causal link between that abnormality and the offending conduct.

Neither is present in the applicant’s case. What the report reveals is that drug-induced psychosis was a likely operative factor. That is not, in my view, sufficient to call into question the making of the serious violent offence declarations [123]–[124]

R v WBZ [2023] QCA 256 (15 December 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’ - ‘inconsistent verdicts’

Proceedings: Appeal against conviction.

Charges: 2x common assault, 2x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x wilful damage.

Facts: The male applicant and female complainant had been in a domestic relationship from October 2016 to January 2021. On two separate occasions, the applicant physically assaulted the complainant, backhanding, kicking, strangling and throwing her on the floor. On both occasions, the offending took place in the presence of the couple’s baby. [11]–[35]

Grounds of Appeal : The applicant appeals against his conviction for one count of strangulation on the basis that it was unreasonable, irreconcilable with the verdicts of acquittal.

Decision and Reasoning : Appeal dismissed. Flanagan JA (with whom Buss AJA and Kelly J agree) held the inconsistency across the verdicts of guilty and not guilty was reconcilable. According to Flanagan JA, each count was ‘readily explicable by reference’ to different sets of considerations, both factual and legal [67]; notably, the inconsistencies in the evidence provided by the complainant and applicant, and differences in jury directions.

R v MDS [2023] QCA 228 (21 November 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against sentence.

Charges: 4x wilful damage, 2x common assault, 1x assault occasioning bodily harm, 1x strangulation in a domestic setting.

Facts: The male applicant and female complainant had been in a long-term de facto relationship, having five children together, prior to separation in 2015. The applicant and the complainant, both intoxicated, had a verbal argument which turned into a physical altercation. The applicant physically assaulted the complainant, including smashing her headphones with a golf club [4], assaulting the complainant with ‘cane knives’ and strangling her with a wicker basket. [3]–[13] The incident occurred in front of the couple’s 16 year old son, who called the police. [12]

The applicant was found guilty of the offences and was sentenced to 12 months imprisonment for each count of wilful damage, 18 months imprisonment for each count of common assault, 2 years imprisonment for the count of assault occasioning bodily harm and 3 years imprisonment for the count of strangulation in a domestic setting – where all sentences were ordered to be served concurrently.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

•

the sentence was manifestly excessive; and

•

the sentencing judge made a specific error (ie, the judge’s statement that ‘someone in the victim’s position could have been dead within a short space of time’ was ‘factually inapposite’) [26]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Dalton (with whom Morrison and Boddice JJA agree) found the sentence to neither be manifestly excessive or erroneous with respect to the sentencing judge’s treatment of the offence of strangulation:

The sentencing judge obviously regarded strangulation as the most serious of these offences, although it must be noted that the common assault with the cane knives was also a very serious offence [14]

That the primary judge took a balanced view of the strangulation is plain from the remarks which I have extracted above. In particular her Honour recognised that the period of strangulation was short; that bare hands were not used, and that the force used was not such as to cause loss of consciousness or control of the bladder. Her Honour expressly recognised that this choking was not of the most serious kind. [28]

R v LBB [2023] QCA 162 (11 August 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Threat’ - ‘Medical evidence’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against conviction.

Charges: 1x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x threatening violence. The offending occurred in one episode of domestic violence, against the applicant’s wife.

Facts: The male applicant was convicted on four counts of domestic violence offences; all of which occurred on 16 January 2019 against the applicant’s wife (the complainant). The complainant’s evidence was that the applicant strangled her, after she refused to allow him access to her mobile phone. As the complainant attempted to leave, the applicant grabbed her and threw her onto the floor and threatened to kill her and their child. [4]–[6] The complainant attended the doctor later that day.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

The wrongful admission of medical evidence concerning the complainant’s injuries; and

2.

The false prosecutorial claims concerning the medical evidence.

Decision and Reasoning : Appeal allowed, conviction set aside and retrial ordered. Judge Dalton (with whom Boddice JA and Bradley J agree) held ‘almost all’ of the evidence led from the doctor’s consultation notes with the complainant to be inadmissible and highly prejudicial to the applicant. [21] Such evidence led from the notes included (and were not limited to):

•

A detailed narrative amounting a complaint against the appellant and a description of his physically assaulting her …

•

sympathetically recorded details as to the complainant’s general domestic circumstances …

•

a hearsay history of the appellant’s having been angry and having pushed and shoved the complainant in the past …. [21]

Judge Dalton equally regarded the prosecution’s address to the jury concerning this evidence improper, as too the prosecution’s reliance upon the existence of a fracture (suffered by the complainant) which was not established [55]–[56]:

It was improper for the prosecutor to seek to use the inadmissible narrative evidence she had led from the doctor to attempt to bolster the complainant’s credit as if the narrative given to the doctor on 7 October 2021 was a fresh complaint in a sexual assault case. The prosecutor expressly used this evidence to try to bolster the credit of the complainant and urged the jury not to have a reasonable doubt because of what the appellant had told police [27]

R v WBX [2023] QCA 151 (28 July 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Prevention order’ - ‘Breach of protection order’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Following, harassing and monitoring’

Proceedings: Appeal against sentence.

Charges: 1x assault occasioning bodily harm, 7x contravention of prevention order

Facts: The male applicant was convicted on domestic violence offences and sentenced to six months’ imprisonment and an order for compensatory payment ($10,000 to the complainant).

The applicant and female complainant had been in a ‘toxic’ domestic relationship for two years.[9] A temporary protection order was placed against the applicant in May 2021: interaction between the complainant and applicant was conditional on it being agreed upon in writing. [15] The offending took place on June 2021, when the complainant and applicant were together at the applicant’s residence: an argument turned into a physical altercation, with the applicant physically assaulting and strangling/choking the complainant. Following the incident, the applicant proceeded to contact the complainant for the next six days, contrary to the protection order. [13]–[16]

Grounds of Appeal : The applicant appealed the sentence on the ground that it was manifestly excessive, having regard to the applicant’s: previously undiagnosed medical condition; plea of guilty; lack of prior criminal history; and ‘new and functioning domestic relationship’. [21]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Boddice (with whom Dalton and Flanagan JJA agree) found the sentencing judge to have made no error:

The protracted nature of the applicant’s criminal conduct, including the repeated contraventions of the domestic violence order in the following days, was of a nature where the imposition of a sentence of imprisonment fell well within a sound exercise of the sentencing discretion, notwithstanding the early pleas of guilty, lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation. Such a conclusion is supported by a consideration of the relevant authorities [35]–[36]

R v RBJ [2023] QCA 162 (13 June 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Inconsistent verdict’

Proceedings: Appeal against conviction.

Charges: 3 x rape.

Facts: The male applicant was charged with three counts of rape; all of which were domestic violence offences. Following a trial before a jury, the applicant was only convicted of one count (and acquitted of two counts).

At the time of offending, the male applicant and female complainant were in a relationship. On 10 October 2022, the applicant attended the complainant’s mother’s house and entered the complainant’s bedroom uninvited while she was asleep. Despite the complainant’s protest, the applicant forcibly removed her clothes and raped her three times. Between the first and second time (ie, count 1 and 2), the complainant went to the bathroom to have a shower.

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The verdict on count 1 is unreasonable and inconsistent with the verdicts of acquittal on counts 2 and 3; and

2.

Miscarriage of justice (ie, trial judge did not provide jury directions on the use of text-message evidence).

Decision and Reasoning : Appeal allowed, conviction set aside and new trial ordered on count 1. Drawing on the principles of inconsistent verdicts set out in MacKenzie v The Queen (1996) 190 CLR 348, 365–8, the Court (Mullins P and Morrison and Flanagan JJA) regarded the jury’s treatment of count 1 as distinct from counts 2 and 3 to not be unreasonable:

It could not be said to be unreasonable that the jury treated the circumstances in which count 1 was committed when the appellant arrived in the complainant’s bedroom uninvited as different from the circumstances of counts 2 and 3 when the complainant returned to the bedroom without wearing clothes while the appellant was still there [39]

It was open for the jury to regard the complainant’s evidence, relating to the text messages sent following the offending, as only constituting count 1:

The text exchange immediately after the complainant arrived at work, in which she confirmed that it was not acceptable for the appellant to show up in her house unannounced and to have sexual intercourse with her after she said “no” 100 times was more referable to count 1 than the other counts. When the appellant then sent a message reminding the complainant that she said she did not want him to go, the complainant’s response was “that was way after” which could also be taken as referable to “way after” the act of sexual intercourse when he first arrived that constituted count 1 [38]

R v Kynuna [2023] QCA 112 (30 May 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of Justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Following, harassing and monitoring’ - ‘Choking/strangulation’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Threat to kill’ - ‘Evidence’ - ‘Expert opinion’ - ‘Jury directions’

Proceedings: Appeal against conviction.

Charges: 3 x rape, 1 x attempted rape

Facts: The male applicant was convicted of one count of attempted rape. The applicant and complainant were in a sexual relationship, which after some time the complainant did not wish to continue. Despite the relationship ending, the applicant continued to pursue the complainant via text messages and loitering at her place of work throughout May 2020. On 3 June 2020, the applicant physically grabbed the complainant by the neck at her place of work and threatened to ‘kill’ her if she continued to ignore him. [16]–[17] Following the applicant’s demands, the complainant drove her vehicle to a deserted place and was physically forced to perform oral and anal sex. [18]–[25]

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The trial judge failed to discharge a jury following the admission of inadmissible and/or highly prejudicial evidence;

2.

The trial judge failed to provide adequate jury directions on opinion evidence; and

3.

The verdict is unreasonable.

Decision and Reasoning : Appeal allowed. Verdict set aside and retrial ordered.

Morrison JA (with whom Mullins P and Boddice JA agree) held the trial judge’s treatment of opinion evidence — specifically the opinion of a forensic nurse that ‘it was unusual to find multiple lacerations to the fourchette in consensual sex’ [48] — to be inadequate.

The Crown prosecutor failed to make reference to the evidence in their opening address [54] and to confine the use of the evidence to the relevant charge (ie, attempted anal rape). [56]–[57] The trial judge failed to correct any misuse of the evidence by the jury through an appropriate direction: ‘The only direction given was one concerned with how to deal with expert evidence. In itself, that was a misdirection because the forensic nurse examiner’s evidence was not expert evidence.’ [58] Consequently, the evidence should have been excluded as both ‘inadmissible’ and ‘prejudicial’ to the applicant. [60]

However, Morrison JA did not find the verdict to be unreasonable. [69] The ‘identified weaknesses in the evidence’ did not reduce the ‘probative value’ of the evidence so as to create ‘a significant possibility that an innocent person has been convicted’. [76]

R v WBV [2023] QCA 79 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Choking/strangulation’ - ‘History of domestic violence and family violence’ - ‘Parole’

Proceedings: Application for leave to appeal against sentence.

Charges: 1x assault occasioning bodily harm whilst armed; 1x wilful damage; 2x choking in a domestic setting; 1x assault occasioning bodily harm (domestic violence offence) 1x wilful damage (domestic violence setting); 1x assault occasioning bodily harm; 1x suppling a dangerous drug with a circumstance of aggravation.

Facts: The male applicant entered early pleas to four indictments and was sentenced to five years’ imprisonment. The offending was perpetrated against the applicant’s female partner in their home. On 6 August 2020, the applicant verbally assaulted the complainant, threatening her with a knife. [30] On 19 November 2021, the applicant physically and verbally assaulted the complainant, punching her in the face, and strangling her twice, causing her to lose consciousness multiple times. [19]–[23] On 19 May 2022, the applicant assaulted a male co-worker. [33]–[34]

Grounds of Appeal : The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive. Particularly, the applicant contended that the primary judge:

1.

started ‘too high’ in calculating the appropriate global sentence for the most serious offending — the two counts of choking in a domestic setting;

2.

departed from the ‘rule of thumb of one-third in imposing a parole eligibility date at the 40% mark of the head sentence’; and

3.

did not accede to the submission of defence counsel in respect of certainty of release [11]

Decision and Reasoning : Application to leave dismissed. Crow J (with whom Dalton and Boddice JJA agree) dismissed the applicant’s submission that the head sentence was ‘too high’, having regard to the applicant’s ‘antecedents, the serious nature of the offending of 19 November 2021, and the accumulation of the criminality of the offending of 6 August 2020 and 19 May 2022’. [36]

With respect to the non-parole date, Crow J (with whom Dalton and Boddice JJA agree) held that the ‘common practice of a one third reduction is not a rule’. [39] Rather, the determination of a non-parole period is made with regard to ‘the specific circumstances of the offender including his antecedents, character, and any prior criminal history’. [40]

Applying these factors to the present case, Crow J held the date to be appropriate:

The applicant’s prior criminal history of serious violence, his lack of anger control, his serious difficulty with alcohol and drugs, his poor prison record, his offence of supplying dangerous drugs in a correctional facility are each a circumstance supporting the parole eligibility date being set at two years [51]

R v BEA [2023] QCA 78 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Appeal against conviction’ - ‘Manifestly excessive’ - ‘Unsafe/unreasonable jury verdict’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Protection order’ - ‘History of domestic violence and family violence’ - ‘victim’s mental health’

Proceedings: Appeal against conviction.

Charges: 13x rape, 2x assault occasioning bodily harm, 3x common assault.

Facts: Following a trial by jury, the male applicant was found guilty of thirteen counts of rape, two counts of assault occasioning bodily harm and three counts of common assaults. Each count involved the aggravating circumstance of being a domestic violence offence [3]: the applicant and female complainant were in a de facto relationship between 2013 and 2015. In this period, the complainant had received a protection order against the applicant. In 2014, the applicant contravened the protection order thrice and was imprisoned for nine months. [74] The female complainant reported the applicant’s offending in 2018. [29] The applicant was sentenced to (11 years head sentence for two counts of rape).

Grounds of Appeal : The applicant appealed against his conviction on several grounds.

1.

Unsafe and unsatisfactory jury verdicts (ie, complainant’s evidence was uncorroborated, ‘inconsistent [and] improbable’ and the complainant suffered from a mental illness). [6]

2.

Manifestly excessive head sentence for two counts of rape (11 years’ imprisonment).

Decision and Reasoning : Appeal dismissed.

With respect to the first ground of appeal, Bradley J (with whom Dalton JA and Gotterson AJA agree) held the evidence of the complainant (on which the verdict rested) to not be ‘improbable or incredible’ [10]. Further, the applicant’s evidence concerning the complainant’s mental health was erroneous and misleading. [22] Contrary to the applicant’s submission, the complainant suffered from depression (not bipolar disorder) which ‘does not raise a reasonable doubt about her credit or the reliability of her evidence’. [26]

Bradley J further held that the complainant’s two year delay in reporting the offences did not constitute a ‘significant forensic disadvantage’ to the applicant [34]–[35]:

The statute excludes the mere fact of delay as sufficient to show such a disadvantage and requires the nature of the disadvantage to be identified.7 The accused bears the onus of establishing there is a significant forensic disadvantage and that it is a consequence of the delay. The disadvantage must be forensic, so it must be a disadvantage in challenging, producing, or giving evidence in the conduct of the case

In the present case, no evidence likely to assist the appellant, which earlier existed, had been lost, gone missing, or become unavailable to him. No witness had died or become unlocatable. No one’s memory had been lost. The medical tests and photographs adverted to by the appellant were never within his power to obtain without the complainant’s consent. There was no evidence before the trial judge that the appellant had suffered a significant forensic disadvantage because of the delay in reporting the offences.

R v FBC [2023] QCA 74 (24 April 2023) – Queensland Court of Appeal

‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Firearm’ – ‘Manifest excess’ – ‘Physical abuse’ – ‘Protection order’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Suicide threat’ – ‘Threats to children’ – ‘Threats to kill’ – ‘Weapons’

Charges: 3x common assault, 2x wilful damage, 1x strangulation in domestic setting, 2 x assault occasioning bodily harm, 1x rape, 3x dangerous conduct using a weapon (all domestic violence offences except 1 x assault occasioning bodily harm).

Proceedings: Appeal against sentence.

Grounds: The sentence was manifestly excessive.

Facts: The applicant was sentenced to nine years imprisonment for rape and lesser concurrent periods of imprisonment for the remaining charges, being eligible for parole after serving 6 years. The applicant contended that the sentence was manifestly excessive.

The majority of the offending was committed against the applicant’s former partner over a 2.5-year period. During the relationship, the complainant had taken out protection orders against the applicant and he had been physically abusive, including incidents where he placed her in a headlock, choked her and punched her in the face.

The complainant left the family home after discovering that the applicant had been unfaithful. Following this, there was an incident where the applicant came to the complainant’s home and violently anally raped her, causing injury. Several months later the complainant asked the police to conduct a welfare check on the applicant. He then came to her house with a gun, aiming it at their two young children and threatening to shoot her, the children and himself.

Reasoning and decision: Appeal dismissed.

Boddice JA (Mullins P and Flanagan JA agreeing) held that the sentence was not unreasonable or unjust given the ‘depravity and persistence’ of the offending [31], which occurred over a significant period and included serious violence, protracted rape and aiming a loaded weapon at very young children. The authorities supported the sentencing judge’s observation that protracted rape would in itself attract a 10-year head sentence, using the case of R v TAQ [2020] QCA 200 as the most helpful yardstick but noting its distinguishing features. Boddice JA concluded that the period of actual custody reflected the criminality of the applicant, particularly the need for deterrence and denunciation in relation to the threats to the children [30].

R v SDI [2023] QCA 67 (18 April 2023) – Queensland Court of Appeal

‘Attempt to pervert the course of justice’ – ‘Circumstantial evidence’ – ‘Evidence’ – ‘Evidence of monitoring’ – ‘Evidence of stalking’ – ‘Evidence of technology-facilitated abuse’ – ‘False complaints’ – ‘Following, harassing and monitoring’ – ‘Inference drawn from nature of searches’ – ‘Judicial notice’ – ‘Judicial notice that mobile phones and laptops are prima facie accurate’ – ‘Rebuttable presumption of the accuracy of 'notorious' technical instruments’ – ‘Stalking’ – ‘Technology facilitated abuse’

Proceedings: Application to adduce further evidence, appeal against conviction for stalking.

Charges: 1x stalking, 1x attempting to pervert the course of justice.

Grounds of appeal:

1.

Verdicts unreasonable or unsupported by evidence

2.

Error in law in admitting documents

3.

Error in law in directing that it was open to find that the appellant caused ‘detriment’

4.

Error in fact in finding without evidence that the appellant and complainant had been married, renewed their lease and other matters

5.

Error in law by failing to rule on admissibility of two exhibits

6.

Denial of fair trial in refusal to adduce evidence

Facts: The complainant woman and defendant man were married but after the relationship deteriorated the complainant left the family home with their son and her daughter from a previous relationship. The defendant was alleged to have made intimidating phone-calls to the complainant, followed her, made false complaints and accusations, and the complainant also alleged the defendant planted drugs in her car.

(The attempt to pervert the course of justice conviction was not in question on appeal. Whilst in custody the defendant had made a number of phone calls to his brother and a friend (“Arunta calls”) asking them to contact a number of people and request those people provide false statements/statutory declarations admitting responsibility for the Crime Stoppers and PoliceLink submissions in order to assist him get bail and to support his acquittal [5].)

The admissibility of Exhibits 5 and 42 were central to the appeal. Exhibit 5 was a screenshot of the daughter’s computer screen showing that the respondent’s iPhone was synched with her Gmail account. Exhibit 42 was a series of printouts from the search history on the daughter’s Gmail account, including ‘how to pay to find someone,’ ‘what will happen if I take my children against a court order?’ and ‘mobile phone locater.’

Decision: The application to adduce further evidence refused; appeal dismissed.

Morrison JA (Mullins P and Flanagan JA agreeing), held that while neither of exhibits 5 and 42 could establish that it was the appellant who synchronised the phone or conducted the searches, this did not make them inadmissible [43]. The exhibits were at least admissible as visual records of what the complainant said she saw on the screen (R v Sitek [1988] 2 Qd R 284) [44]. Additionally, Exhibit 5 was admissible for the purposes of showing that one device was synchronised with another [45].

The trial judge’s use of Exhibit 42 was restricted to the searches where the only reasonable inference was that the appellant had conducted them [62] and that even had it been wrongly admitted there was no basis for finding a miscarriage of justice as it only affected one act of stalking [63]. While the appellant submitted that the complainant had fabricated the screenshot, this was not put to the complainant during cross-examination and in the circumstances there was a strong inference to be drawn from the nature of the searches that they were conducted by the appellant [116].

Consideration was also given to the rebuttable presumption of the accuracy of ‘notorious’ technical instruments, amounting to judicial notice of the fact that a device that is generally used and known to be trustworthy is prima facie accurate (Bevan v the State of Western Australia [2010] WASCA 101) [30]. Mobile phones and laptops were said to fall into this category and there was no evidence suggesting the complainant’s computer or her daughter’s iPad were other than accurate and trustworthy. The exhibits were therefore admissible as circumstantial evidence going to the question of whether the appellant had synchronised the phone and Gmail, and whether the appellant had conducted the searches [48].

The submission that no ruling on Exhibit 5 was made was said to be a misstatement as the trial judge had proceeded on the basis that the exhibit was to be admitted as record of what the complainant had seen on the computer and noted a reservation that the defence might wish to argue what it proved [53]. The appellant was also found to be bound by the defence counsel’s agreement that the admissibility of Exhibit 42 be deferred to the end of trial.

The appellant’s attempts to adduce further evidence were refused as they could have sought to adduce the evidence at trial and the evidence amounted to no more than a general attack on the complainant’s credit and therefore would not have affected the outcome.

R v Robbins [2023] QCA 18 (17 February 2023) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Dated allegations of historical violence’ – ‘History of violence to third party’ – ‘Murder’ – ‘Partial defence of killing for preservation in an abusive domestic relationship’ – ‘S304b criminal code (qld)’ – ‘Siblings’ – ‘Verbal abuse’

Proceedings: Appeal against murder conviction.

Grounds: The trial judge erred in not directing the jury in relation to the partial defence of killing for preservation in an abusive domestic relationship (s304B Criminal Code (Qld)).

Facts: The male appellant and homicide victim were brothers. The victim, his partner and the appellant’s daughter had come to stay with the appellant and his fiancée prior to the appellant’s wedding. During the course of dinner at the appellant’s home, an aggressive verbal argument broke out between the appellant and victim. At one point, the victim asked the appellant’s fiancé if she was really marrying the appellant and she responded that she wouldn’t if he continued to behave this way.

The appellant told the victim and his partner to leave and made further abusive comments towards the victim, apparently angered by his comment to his fiancé. They broke into a physical confrontation and both parties threw punches. During the struggle, the appellant grabbed a knife and stabbed the victim seven times. He died of knife wounds the following day.

The appellant gave evidence that the victim had been an abusive family member, making allegations of witnessing 3 separate assaults against his father. He contended that the victim had been verbally abusive towards the appellant, his father and other brother throughout his life.

Reasoning and decision: The partial defence did not arise fairly on the evidence; appeal dismissed.

A history of domestic violence in the relationship was required, necessitating a previous tendency by either party to engage in acts of serious domestic violence repeatedly or habitually against the other ([30]). The appellant’s claims regarding the victim’s past behaviour lacked an evidentiary basis and any available evidence did not clarify the nature of his conduct.

The age of the alleged incidents involving violence towards their father (occurring over 40 years ago) and fact that the conduct was not targeted at the appellant meant they did not support a history of an abusive relationship between the brothers. While it was possible for actual or threatened violence to a third person to be domestic violence against the second person in certain narrow circumstances, these were clearly not made out.

A ‘bare statement’ that verbal abuse had occurred was not enough to find family violence [39]. Repeated, habitual oral statements in certain circumstances could constitute domestic violence but this would require detail and evidence of impact. Additionally, verbal abuse was not found meet the required threshold of ‘serious’ domestic violence.

R v KBB [2022] QCA 273 (23 December 2022) (23 December 2022) – Queensland Court of Appeal

‘Allegations of infidelity’ – ‘Appeal against conviction’ – ‘Evidence’ – ‘Jealous behaviours’ – ‘Non-fatal strangulation’ – ‘Past domestic violence’ – ‘Physical violence’ – ‘Propensity evidence’ – ‘S132b of the evidence act 1977 (qld)’ – ‘Similar fact evidence’

Proceeding: Appeal against conviction for 1x strangulation in domestic setting.

Facts: The male appellant was charged with 1x strangulation in domestic setting, 1x suffocation in a domestic setting and 1x assault occasioning bodily harm while armed against his female partner. He was convicted on the first charge and acquitted on charges 2 and 3.

The complainant gave evidence that the appellant accused the complainant of infidelity, and the complainant slapped the appellant. The appellant he grabbed the complainant by the hair and throat, threw her onto the bed and covered her nose and mouth. When the complainant tried to leave the house, the appellant grabbed her by the throat and hit her on the head with a glass, knocking her unconscious. Medical evidence of bruising around her neck and head was submitted and the complainant gave evidence of four previous instances of physical violence.

Grounds:

1.

The verdict of the jury was unreasonable in that it was inconsistent with the verdicts of acquittal.

2.

There was an error of law in the admission of evidence of prior acts of domestic violence to demonstrate his propensity to commit domestic violence (under s132B of the Evidence Act 1977 (Qld)).

Decision and reasoning: Appeal dismissed.

Ground 1: McMurdo JA held that it was open to the jury to accept the evidence supporting the complainant’s testimony for the first charge while determining that they required independent evidentiary support before being satisfied about her credibility in relation to counts 2 and 3.

Ground 2: McMurdo JA noted that s132B has a wide operation and that ‘[o]nce the evidence is relevant, it is admissible (under s132B) subject only to the discretion to exclude it on the ground of unfairness according to s130 (Qld).’ Propensity evidence was held to constitute a relevant use, there was no requirement to satisfy the Pfennig test (Roach v The Queen [2011] HCA 12 (4 May 2011)) and there was no argument as to unfairness under s 130 or a miscarriage of justice.

R v CCU [2022] QCA 92 (27 May 2022) – Queensland Court of Appeal

‘Absence of remorse’ – ‘Application for leave to appeal against sentence’ – ‘Attempt to pervert the course of justice’ – ‘Coercive control’ – ‘Manifest excess’ – ‘Physical violence and harm’ – ‘Stepchildren’ – ‘Strangulation’ – ‘Uncharged acts’

Charges: 5 x assault occasioning bodily harm; 1 x common assault; 1 x assault occasioning bodily harm, while armed; 7 x common assault (a domestic violence offence); 4 x assault occasioning bodily harm (a domestic violence offence); 1 x torture (a domestic violence offence); 2 x strangulation in a domestic setting; 1 x suffocation in a domestic setting; 1 x attempting to pervert justice (a domestic violence offence).

Case type: Application for leave to appeal sentence.

Facts: On the second day of trial, the applicant was sentenced after pleading guilty to 20 counts of violence perpetrated over eight years towards his then-partner, K, and her son. As a result of a plea bargain, three counts were withdrawn. The learned sentencing judge imposed a head sentence of six years imprisonment, declaring 53 days as pre-sentence custody, and set a parole eligibility date at two years and four months from the date of sentence. The applicant’s offending was described by the learned sentencing judge as “violent, demeaning and an appalling attempt to exercise power over K” ([34]).

Issue: Whether the learned sentencing judge erred in taking into account the applicant’s uncharged acts? Whether the sentence was manifestly excessive?

Held: In sentencing the applicant, the learned sentencing judge considered his late guilty pleas, his absence of remorse and lack of relevant criminal history, his age at the time of offending, the nature of the offending, the significant effect that the conduct had on K, her son and daughter, his background, the fact that the offences were domestic violence offences and the character references. His Honour also had regard to the fact that domestic violence crimes demean society and are to be condemned and denounced ([34]).

The Court of Appeal (Mullins, Morrison and Fraser JJA) refused leave to appeal. The applicant argued that the learned sentencing judge erred in taking into account the applicant’s uncharged acts, because, inter alia, the Crown’s statement of facts included uncharged acts that were serious and should not have been included. The first ground of appeal was rejected on the basis that:

•

The statement of facts tendered on the sentencing hearing was an agreed statement.

•

Reference to the transcript and sentencing remarks revealed that His Honour only sentenced the applicant for the offences charged.

The second ground of appeal was rejected on the basis that:

•

The offending was “protracted, violent, demeaning and controlling”. It extended beyond the complainant and some of the offending was committed in view of her children. Importantly, “it involved an ultimate degradation, the threat of elimination of life itself”, and was committed with a lack of insight and remorse ([58]).

•

The conduct can be considered worse, given that it was broken by periods of time, because the threat was “always there” ([59]).

•

The applicant attempted to pervert the course of justice to protect himself from exposure to criminal charges ([61]).

R v GBI [2022] QCA 28 (7 March 2022) – Queensland Court of Appeal

‘Accusations of infidelity’ – ‘Application for leave to appeal against sentence’ – ‘Jealousy’ – ‘Physical violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Torture’ – ‘Weapon’

Charges: Assault occasioning bodily harm x 1 (count 1), torture x 1 (count 2).

Proceedings: Application for leave to appeal against sentence.

Issues: Whether the sentence was manifestly excessive.

Facts: The male applicant and female victim were in an intimate relationship. The charges arose out of two separate assaults. During the first, the applicant punched the victim in the face. During the second, the applicant subjected the victim to several violent assaults over a 48-hour period. The assaults included kicking and punching in the face and stomach, stabbing with scissors, verbal abuse that included threats against the victim’s life, and repeated strangulation. The victim sustained serious physical and psychological injuries. The assaults accompanied accusations of infidelity by the applicant, who expressed feelings of jealousy on both occasions. The applicant pleaded guilty to the charges and was sentenced to 18 months’ imprisonment on count 1 and six and a half years imprisonment on count 2. The applicant sought leave to appeal on the ground that his sentence was manifestly excessive.

Decision and reasoning: The appeal was rejected.

Justice Morrison found that the matters raised by the applicant as demonstrating manifest excess had been considered by the sentencing judge. These matters included the applicant’s ‘remorse’, ‘good custodial behaviour’, ‘father’s poor health’, child support obligations, debts owed to his employer, ‘limited use of weapons’, the fact that the victim’s injuries did not require ongoing treatment, and the reduction in risk by a DVO and because the relationship had ceased. His Honour affirmed the sentencing judge’s conclusion that these matters did not warrant a further reduction in the sentence to be imposed, nor justify a finding that the risk of reoffending was reduced.

R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14 (15 February 2022) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Assault’ – ‘Burning threat’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Victim impact statement’ – ‘Weapon’ – ‘Young people’

Charges: The domestic violence charges were:

1.

Common assault,

2.

unlawful assault occasioning bodily harm

3.

causing grievous bodily harm with intent (malicious act with intent) x 1 and

4.

Causing grievous bodily harm (in the alternative to count 3).

Proceedings: Appeal against sentence by Attorney-General.

Issues: Whether sentence manifestly inadequate.

Facts: The male respondent and female victim were in a two-year relationship that was characterised as ‘troubled’ and involving physical violence [2]-[4]. Both parties were users of methylamphetamine and were aged 17 at the time of the offences. On one occasion, the respondent threw petrol on the victim and threatened to set her on fire. On another occasion, the respondent threw a screwdriver at the victim, which was embedded in her hip [3]-[4]. In May 2016, during verbal argument, the respondent used petrol to set the victim on fire [5]. The respondent fled when confronted by a neighbour [14]. The victim required surgery and was hospitalised for four weeks. She was left with ongoing pain and nerve damage [22]. In January 2021, the respondent pleaded guilty to common assault (count 1) and assault occasioning bodily harm (count 2) and was found guilty in relation to causing grievous bodily harm with intent (count 3). He successfully appealed against conviction regarding count 3 but was later resentenced to nine years and six months’ imprisonment [30]. The Attorney General of Queensland appealed on the basis that that sentence was manifestly inadequate [57].

Decision and reasoning: Appeal dismissed.

Justices Sofronoff, Morrison and Flanagan affirmed the decision and reasoning of the sentencing Judge. Their Honours endorsed the sentencing Judge’s consideration of the appellant’s plea of guilty, expressions of remorse, insight, youth and disadvantaged upbringing [67]-[70]. Their Honours agreed with the sentencing Judge’s characterisation of the offending ‘horrendous and disgraceful offending’ and ‘abominable behaviour’ [39]-[40], with ‘devastating consequences’ for the victim that included ‘significant and life-long physical, mental and emotional difficulties’ [72]. Their Honours continued that the sentencing Judge had correctly stated that ‘the sentence had to be “just having regard to all of the circumstances”, but in particular to punish, express community denunciation, meet general and specific deterrence, provide community protection, but also, in light of the offender’s youth, have regard to his prospects of rehabilitation’ [73]. Their Honours concluded that there was ‘no demonstrated error of principle… the sentence imposed was one derived by a careful balancing of competing requirements in an overall integrated sentencing approach’ [75]. This approach ‘was in accordance with what this Court said in R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58 was one of the available approaches, namely to sentence towards the top of the bounds of appropriate discretion and not reduce the parole eligibility date, rather than sentence towards the bottom and impose a serious violent offence declaration’ [75].

R v EQ [2021] QCA 257 (30 November 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Bomb threat’ – ‘Breach of protection order’ – ‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Following, harassing and monitoring’ – ‘Limited criminal history’ – ‘People affected by trauma’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’ – ‘Technology-facilitated abuse’ – ‘Weapons’

Charges: Breach of protection order x 1, assault of police officer x 1, making a bomb hoax x 1, stalking x 1, common assault x 2.

Proceedings: Application for leave to appeal against sentence and resentence.

Facts: The male defendant and female victim were married for 17 years and had two school aged daughters. The family immigrated to Australia from Egypt in 2011. After the couple separated, a domestic violence order was served on the appellant that prevented him from contacting the victim. In February 2019, the appellant repeatedly texted the victim before confronting her and their daughters at an airport. The appellant argued with the victim, before threatening her and airport staff with a knife, fake bomb, and electric shock device [12]-[17]. The appellant later admitted to police that he had been tracking the victim’s movements [19]. The appellant pleaded guilty to the charges and received a sentence of 6 years' imprisonment, with a non-parole period of 2 years and 6 months.

Grounds:

1.

The sentencing Judge erred in law by wrongly limiting the use to be made of evidence of the applicant’s mental health;

2.

The sentence was manifestly excessive; and

3.

In sentencing the applicant for count 2, the learned sentencing Judge mistook the offence to which he had pleaded guilty.

Decision and Reasoning: Application for leave to appeal allowed, charge 3 dismissed, resentenced for charge 2.

Due to an administrative error the appellant was sentenced for an offence with which he had not been charged and to which he had not pleaded guilty [52]. Therefore, the proceedings had miscarried, and the appeal was allowed. As ground three was made out, the court allowed the appeal and proceeded to resentence the applicant for count 2 to 5 years imprisonment with and non-parole period of 2 years 6 months. Justices Sofronoff, Davis and Williams noted that the offending was serious, with significant impact on the commercial operations of the airport, the distress experienced by witnesses, and ongoing psychological suffering of the victim and her daughters [57]. Their Honours noted that there were mitigating circumstances, such as the appellant’s limited prior convictions, cooperation with police, early guilty plea, expression of remorse and low risk of reoffending [58]. Their Honours summarised the appellant’s psychological report, which included details of the applicant’s diminishing symptoms of anxiety and depression, and noted the relevance of mental impairment under s 16A(2)(n) of the Crimes Act 1914 (Cth) [59]-[61]. Their Honours found that there were no comparative sentences [64]. Their Honours considered the maximum sentence for the offence, the sentencing considerations in s 16A of the Crimes (Aviation) Act 1991.

R v Hartas [2021] QCA 178 (27 August 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Arson’ – ‘Jealous behaviours’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘People with mental illness’

Charges: Arson x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The 27-year-old male applicant and female victim were in a 6-week relationship. Shortly after the relationship ended, the intoxicated applicant used a petrol bomb to set fire to cars owned by the victim and her partner. The cars were parked directly in front of the victim’s house, where the victim, her partner, and her 6-year-old daughter were sleeping. In February 2021, the applicant was found guilty of one count of arson, constituting a domestic violence offence, and sentenced to three years’ imprisonment with a non-parole period of 12 months [1]-[8]. The applicant’s psychological report detailed ‘a complex medical history’ and ‘significant psychological problems’, which included chronic pain due to a spinal condition, alcohol misuse and a ‘longstanding mood disorder’ [25].

Grounds:

1.

The sentencing Judge failed to give sufficient weight to the applicant’s personal circumstances, specifically those evidenced by his psychological report

2.

The sentence was manifestly excessive [9].

Decision and Reasoning: Application for leave to appeal dismissed.

Fraser, Morrison and Applegarth JJ held the sentence imposed was not manifestly excessive. The sentencing Judge had given appropriate weight to the applicant’s personal circumstances and mitigated the sentence accordingly [42]. The contents of the psychological report had not shown that the applicant’s mental state at the time of the offence or at the time of sentence warranted substantial weight according to R v Verdins [2007] VSCA 102 (23 May 2007).The applicant’s mental state did not reduce his moral culpability, nor make imprisonment more burdensome such that it ‘became an inappropriate vehicle for’ general deterrence and specific deterrence [40], and his physical condition did not make imprisonment ‘unduly onerous’ [41]. The offence was serious, as indicated by its maximum penalty of life imprisonment with the aggravating factor that it was a domestic violence offence [50]. The victim impact statement indicated serious psychological harm caused to the victim and her daughter [51]. Their Honours accepted the sentencing Judge’s characterisation as ‘an extremely serious act of domestic violence’ due to ‘its grave potential’ impact on ‘life and property’, and the psychological harm that it has caused the victim and her six-year-old daughter [51].

R v RBE [2021] QCA 146 (20 July 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Arson’ – ‘Arson threats’ – ‘Error of fact’ – ‘Inference as to motive’ – ‘Motive’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Section 132c evidence act 1977’ – ‘Sentence’ – ‘Separation’ – ‘Suicide threats’

Charges: Arson of a dwelling x 1 (domestic violence offence).

Proceedings: Application for leave to appeal against sentence.

Facts: As the complainant woman and applicant man were separating the applicant threatened to burn down the former matrimonial home. A protection order was granted protecting the complainant. The applicant has a history of major depression and complex post-traumatic stress disorder. On the date of the offence the applicant sent text messages to his son saying “goodbye” and that the house was alight. He also attempted to call the complainant and sent messages to a friend who went to the house, observed smoke, spoke to the appellant who was inside and called emergency services, then unsuccessfully attempted entry. The appellant’s evidence was that his intention was to commit suicide, but he fled the burning home having changed his mind after an unsuccessful attempted suicide. The sentencing judge expressed the view that the appellant’s expressed motives of suicide were not credible, despite accepting evidence of ligature marks on his neck supporting the appellant’s evidence he had attempted to hang himself during the incident. The judge found the appellant was seeking attention and acted vindictively to hurt his wife. The prosecution made no positive submission on motive and had submitted that all three motivations were open on the facts, advancing suicide or attention-seeking but not vindictiveness.

Decision and Reasoning: Leave to appeal, appeal allowed, sentence varied by:

•

Substituting three (3) years imprisonment; and

•

Suspending the sentence forthwith for an operational period of three (3) years.

Burns J (Morrison and McMurdo JJA concurring):

[26] ….it was not for the sentencing judge to decide what inferences arose from the agreed facts and, having done so, her Honour erred (and in a critical way) by determining a fact that was not in issue between the parties. Indeed, the procedure for resolving disputed facts provided in s 132C of the Evidence Act was not even engaged, the prosecutor having made no positive allegation about motive.

R v FBA [2021] QCA 142 (16 July 2021) – Queensland Court of Appeal

‘Adequacy of jury directions’ – ‘Admissibility of evidence’ – ‘Allegations of infidelity’ – ‘Attempt to withdraw allegations’ – ‘Choking’ – ‘Evidence’ – ‘History of domestic and family violence’ – ‘Jury directions’ – ‘People affected by substance misuse’ – ‘Relationship evidence’ – ‘Robinson direction’ – ‘S132b(2) evidence act 1977 (qld)’ – ‘Strangulation’ – ‘Threats to kill’

Charges: Non-fatal Strangulation x 4.

Proceedings: Appeal against conviction.

Facts: The appellant and complainant were in a relationship but maintained separate residences. The complainant had been staying with the complainant for 3 days when the alleged incidents occurred. The appellant made allegations of infidelity against the complainant, and they argued about that and money, the appellant refusing to drive the complainant home despite her giving him money for fuel. The complainant gave evidence that the appellant accused the complainant of stealing from him and that in four discrete incidents of physical altercations he applied pressure to her throat so that she could not breathe. She also alleged he made multiple threats to kill her and members of her extended family, locked her in the house and that she escaped with assistance from others. She went to hospital and photographs were taken of marks on her neck which were not there prior to the incident. The complainant also gave evidence of two prior incidents of violence by the appellant towards her. The complainant admitted using methylamphetamine at the time of the incidents and to attempting to withdraw her complaints, stating the reasons given for the withdrawal were false.

Grounds:

1.

The learned trial judge erred, causing the trial to miscarry, in:

(a) failing to clearly direct the jury as to the identification, purpose, and use of relationship evidence;

(b) admitting the evidence of the complainant’s daughter that she had ‘seen bruises on mum’ (the year prior to the instant allegations) as relationship evidence.

2.

The complainant’s evidence required a ‘Robinson direction’ and the failure to direct in those terms caused a miscarriage of justice.

3.

The complainant’s evidence in chief was inaudible in parts, which in the circumstances of the trial, caused the trial to miscarry.

4.

When regard is had to all the evidence, the jury verdicts are unreasonable, unsafe and unsatisfactory.

Decision and Reasoning: Appeal dismissed.

Ground 1(a) – rejected - further direction on relationship evidence would not have assisted the defence case (Sofronoff P [11], McMurdo JA agreeing, Boddice JA dissenting – the second paragraph of directions on the use of relationship evidence gave rise to a real risk of impermissible propensity reasoning).

Ground 1(b) – dismissed –the evidence was plainly admissible and relevant (Sofronoff P [13], MdMurdo JA agreeing Boddice JA dissenting – the evidence was inconsistent with the complainant’s evidence the appellant was only violent towards her in 2019).

Ground 2 – dismissed – it was clear why a ‘Robinson direction’ (pursuant to Criminal Code, s632(3)) wasn’t given, firstly the defence did not request one, and secondly “There was nothing in the present case which would have suggested to the learned judge that the jury required specific assistance in order to assess the complainant’s credibility and/or to suggest that, in the absence of such assistance, there was a risk that the jury might be unable to appreciate some exculpatory factor.” (Sofronoff P [14], McMurdo JA agreeing).

Ground 3 – dismissed – in absence of complaint at the trial it is impossible to conclude based on the transcript that evidence was inaudible (Sofronoff P [16], McMurdo JA agreeing).

Ground 4 – dismissed – while there was good reason for the jury to carefully scrutinise the complainant’s evidence (her drug use and its affects on her mental health, inconsistencies in her evidence and her attempts to withdraw the charges) it does not follow that it was not open to the jury to find her evidence as to the allegations of choking to be credible and reliable, especially as it was supported by medical evidence of injuries consistent with the allegations and her timely complaint to police. (Boddice JA [89]-[91], Sofronoff P and McMurdo JA agreeing).

R v Blockey [2021] QCA 77 (21 April 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Manifest excess’ – ‘Manslaughter’ – ‘Parole eligibility’ – ‘Victims as (alleged) perpetrators’ – ‘Weapon’

Charges: Manslaughter (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male deceased had committed acts of domestic violence against the female applicant during their relationship. He was the subject of a domestic violence order. The applicant stabbed the deceased with a hunting knife. She pleaded guilty and was sentenced to 9 years imprisonment, with parole eligibility after 3 years and 9 months imprisonment.

Grounds of appeal: Whether refusal to give parole eligibility date at one third of the sentence rendered the sentence manifestly excessive.

Held: Leave to appeal against sentence granted. Appeal against sentence allowed. Parole eligibility date was set on 22 April 2021, rather than 22 January 2022.

The Court noted the sentencing judge’s remarks, including the relevance of the applicant’s history as a repeated victim of domestic violence in sentencing:

The sentencing Judge found that: “The fact that you were such a victim of domestic violence as well as a perpetrator of domestic violence is, to my mind, sufficient to enable me to reach the conclusion that it is not reasonable in the present circumstances to treat the fact that your offending was a domestic violence offence as an aggravating feature.

Nevertheless, the sentencing judge’s conclusion that “the applicant’s cooperation was tempered by her failure to provide any comprehensive, reliable detail concerning the stabbing” was inconsistent with the conclusion that there was insufficient evidence to find that “the applicant ‘engaged in consciously-informed obfuscation or denial’ designed to minimise culpability.” The applicant was under no obligation to provide a comprehensive, detailed account of the sequence of events concerning the stabbing. She accepted unlawfully causing the victim’s death by stabbing him when she pleaded guilty to his manslaughter.

In these circumstances, finding that the applicant’s cooperation in entering a timely plea of guilty was to be tempered by her failure to provide such an account of the stabbing was a misapplication of sentencing principles, particularly where there was an acceptance that the applicant was sincerely remorseful for her conduct. It was therefore necessary to re-sentence the applicant. Parole eligibility was fixed after having served 3 years of the sentence.

MS v Commissioner of Police [2021] QCA 31 (2 March 2021) – Queensland Court of Appeal

‘Application for leave to appeal against conviction’ – ‘Breach protection order’ – ‘Parenting orders’ – ‘People with mental illness’ – ‘Protection order’

Charges: Contravention of a domestic violence order (aggravated offence) x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: A protection order prevented the male applicant from contacting, attempting to contact, or asking someone else to contact his female former partner except under strict circumstances. A Family Court order was also in place granting the mother sole parental responsibility for their child and restricting contact between the parties. The applicant breached the protection order by sending an email addressed to a number of people including his former partner and solicitor titled, “[The child] need to know about my mental health diagnosis.” The applicant was sentenced in the Magistrates Court to 6 months imprisonment, suspended after 2 years. The applicant’s appeal to the District Court was dismissed.

Grounds of appeal:

1.

The primary judge erred in not allowing the appeal based on the existence of parental responsibility in the applicant’s communications.

2.

The primary judge erred in not applying s 24 of the Criminal Code (Qld).

Held: Application for leave to appeal was refused. There was no inconsistency: condition 6 of the protection order did not preclude the application of the exception in paragraph 18 of the Family Court order. The email was appropriately characterised as not for the “sole purpose of communication regarding parental responsibility,” and did not fall within the condition/exception in the protection order and Family Court order. On that basis, there was no room for the operation of s 24 of the Code which could not apply to a mistake by the applicant in the interpretation of the Family Court order.

R v Luxford [2020] QCA 272 (4 December 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Damaging property’ – ‘Following, harassing and monitoring’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Protection order’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapon’

Charges: Choking, suffocation or strangulation in a domestic setting x 2; Assault occasioning bodily harm (domestic violence offence) x 8; Threat of actual bodily harm (domestic violence offence) x 1; Common assault (domestic violence offence) x 2; Wilful damage (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant man spent 15 years in the army, with several overseas deployments. He left on medical grounds with a shoulder injury, chronic pain, tinnitus and post-traumatic stress disorder, and was awarded compensation. He had no prior criminal history (except for a failure to secure storage of weapons charge in 2017). He participated in a Men’s Behavioural Change Program, and was accepted into a program to treat PTSD. The applicant pleaded guilty and was sentenced to a period of three years and six months imprisonment for the most serious offences on the indictment (choking, suffocation or strangulation in a domestic setting x 2, Counts 12 and 13), to be served concurrently with the remaining sentences. The date for parole was fixed at 29 September 2021. The expiry date for a protection order granted to the complainant in 2017 was extended to 7 October 2025.

Grounds of appeal: The sentence was manifestly excessive as the applicant was required to serve actual time in custody.

Held: The sentencing judge erred in the imposition of a sentence that required actual custody, and the applicant was re-sentenced.

The court held that the applicant’s offending could not be separated from his PTSD and also his PTSD caused custody to be a greater burden on him. While the sentencing judge applied the principles in R v Rix [2014] QCA 278 where the reduction in moral culpability due to an offender’s PTSD was taken into account, the sentencing judge failed to recognise in the sentence that a custodial sentence would have a hasher effect on him than a person not suffering PTSD. The sentence did not give sufficient weight to both factors relevant in the applicant’s case due to his PTSD (at [38]).

To reflect the gravity of the offending, the most serious offence was choking causing the complainant to lose consciousness (see R v MCW [2018] QCA 241) (Count 13), a higher head sentence of 4 years imprisonment was imposed to accommodate a sentence structure that provided for the applicant’s immediate release from actual custody. This reflected the totality of the offending, but adjusted in recognition of the effect of the PTSD as a cause of the offending. For the choking that lasted three seconds, a sentence of 2 years and 6 months imprisonment was imposed (Count 12). The effect of the applicant’s PTSD was further accommodated by suspending the sentence on Count 13 after 60 days and releasing him at the same time on parole for other offences (parole for 2 years and 4 months to provide supervision in the community). Supervision on parole was to ensure the applicant continued to access counselling and other treatment for his PTSD (at [39]).

R v Thomas [2020] QCA 236 (30 October 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application to adduce further evidence’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Provocation’ – ‘Strangulation’

Charges: Murder x 1.

Proceedings: Appeal against conviction; application to adduce further evidence.

Facts: The appellant man was found guilty of the murder of his female partner following a trial confined to the issue of intent. On 24 October 2015, the victim was found with injuries to her neck consistent with strangulation and rib fractures consistent with resuscitation or blunt trauma. Evidence at trial included: evidence from several of the victim’s former partners and her aunt; records of text messages/phone calls between the appellant and the victim commencing on 9 May 2015 (showing a volatile relationship); the appellant arranging to purchase a flight ticket overseas after the victim’s death; the appellant’s confession he killed the victim to a friend (that he had been humiliated and had “grabbed her and…squeezed”, accompanied demonstrating use of two hands); and evidence from a forensic pathologist of the victim’s injuries.

Grounds of appeal:

1.

The trial judge erred in law by admitting exhibit 41, which contained six inadmissible photographs, causing a miscarriage of justice.

2.

The trial judge failed to direct the jury as to how exhibit 41 could be used, thus creating the danger of impermissible reasoning by the jury.

3.

The trial judge failed to direct in relation to motive.

4.

The verdict was unreasonable and cannot be supported by the evidence.

5.

The trial judge failed to leave the partial defence of provocation.

6.

The trial judge’s failure to direct the jury in relation to opinion evidence may have caused a miscarriage of justice.

7.

A collation of faults caused the trial to miscarry.

Held: The appeal was dismissed.

Grounds 1 and 2: Exhibit 41 (photographs of bruising suffered by the victim in November 2014, identified by a former partner of the victim) was tendered by the prosecutor at the request of the appellant’s trial counsel for a forensic purpose. The fact that the appellant’s counsel abandoned the forensic purpose he had in mind for exhibit 41 did not mean that the evidence became prejudicial ([32]-[38]).

Ground 3: The trial judge did not fail to give a direction concerning motive which was requested by the appellant’s counsel, stating in summing up: “Any positive evidence that the defendant lacked a motive to cause [Jane’s] death or to do her grievous bodily harm is also relevant. It would be another circumstance to be taken into account in his favour in a case based on circumstantial evidence” ([39]-[42]).

Ground 5: The trial judge did not err in failing to leave open to the jury the partial defence of provocation (where the act was caused “in the heat of passion caused by sudden provocation…before there is time for the person’s passion to cool”). First, the appellant’s trial counsel expressly disavowed reliance on provocation, making it clear that the only live issue was intention. Second, there was no evidence of acts of provocation which might have led to loss of self-control. The evidence did not show any particular link between the alleged humiliation and strangulation. Third, there was no evidence to suggest provocation would have caused a loss of control in a reasonable person ([43]-[48]).

Ground 6: There was no merit in the appellant’s contention that evidence from the victim’s aunt that “whether she was an alcoholic or not…she didn’t deserve…what she got” may have introduced factors of prejudice or emotion to the jury, or influenced their decision, and the trial judge should have directed the jury to disregard those claims. The jury would not have been concerned that the victim’s aunt made a personal comment, and no direction was sought by the appellant’s counsel ([49]-[53]).

Ground 7: None of the failures of defence counsel to object to the prosecution’s case demonstrated that defence counsel’s conduct denied the appellant a fair trial ([54]-[62]).

Ground 4: The principles relevant to the role of the appellate court, and pre-eminence of the jury were recently re-stated in Pell v The Queen and R v Baden-Clay. There was ample evidence (from the pathologist and the appellant’s friend) to support the jury’s conclusion that when the appellant squeezed the victim’s neck, he did so with the intent to kill or cause grievous bodily harm. He applied pressure to her neck, and with two hands. In particular, “[t]he level of force necessary, the length of time it was applied for, the fact that the fingers moved around and the fractures to the neck all provide a foundation to infer the requisite intent”. It was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt of murder ([63]-[71]).

The appellant’s application to adduce fresh evidence was refused. The evidence requested to be adduced would have been in the hands of the defence counsel at the time of the trial, or it was irrelevant ([72]-[76]).

R v TAQ [2020] QCA 200 (15 September 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Miscarriage of justice’ – ‘Sexual abuse’ – ‘Tendency/relationship evidence’

Charges: Common assault x 9; Assault occasioning bodily harm x 1; Assault occasioning bodily harm while armed x 4; Rape x 1 (Charge 15).

Proceedings: Appeal against rape conviction (Charge 15); Application for leave to appeal against sentence.

Facts: The female complainant was the male appellant’s former de facto partner. From 2006 the appellant became increasingly violent and controlling and committed numerous charged and uncharged assaults between 2006 and 2011. In October 2011, the appellant said to the complainant, “If you love me, darling, you’ll do it [anal]. If you don’t do it, I am going to turn you over and rape you”. The appellant then anally raped the complainant, after which he demanded oral sex and then hit her in the head. In December 2012, the complainant left the appellant but did not report the rape and assault to police until December 2016. In 2012, the appellant said to Mr P (a witness) that “he’d raped [the complainant]” and “if he didn’t get what he wanted, he’d take it”.

Grounds: (1) Mr P’s evidence of the conversation with the appellant should not have been admitted.

Decision and reasoning: Appeal against conviction dismissed. Appeal against sentence allowed due to a calculation error.

The prosecutor at trial argued that Mr P’s evidence that the appellant had said he’d raped the complainant could amount to an admission. The trial judge expressed doubt as to whether the jury could infer that it was an admission to the specific incident (Charge 15). In the summing up, the trial judge explained to the jury that Mr P’s evidence related more generally to “other incidents in which the [appellant] has through his actions, demonstrated a sexual interest in the complainant even when she is not consenting and was prepared to act on that interest” [28]. The respondent relies on R v Sakail [1993] 1 Qd R 312 as making the evidence of Mr P admissible on the basis that an admission to a rape which is not charged can be used as evidence of the nature of the relationship relevant to the charged rape:

[32] Where the act in issue for [rape] count 15 was the act of anal intercourse without the consent of the complainant, evidence of other sexual acts between the appellant and the complainant as a result of the appellant’s threats or without the consent of the complainant was evidence that could rationally affect the assessment of the probability of the occurrence of the anal rape, as described by the complainant. The direction given by the trial judge focused on the nature of the conduct to which the appellant admitted in his conversation with Mr P which was a willingness to act on his sexual interest in the complainant in the absence of her consent. The evidence of Mr P was admissible as relationship evidence that revealed a tendency of the appellant to engage in sexual acts with the complainant without her consent.

[33] The appellant does not succeed on the ground of appeal that Mr P’s evidence was inadmissible.

R v SDJ [2020] QCA 157 (24 July 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Child victim’ – ‘Section 93a evidence act statement’ – ‘Stepchild in the family’ – ‘Strangulation’ – ‘Unreasonable verdict’

Charges: Common assault x 1 (DFV offence); Choking in a domestic setting x 1 (DFV offence).

Proceedings: Appeal against conviction.

Facts: The complainant (10 years old) was the male appellant’s stepson. The appellant kicked the complainant and hit him on the side of the face two or three times with an open hand. The appellant then choked the complainant with ‘a neck lock’. The complainant’s mother and a friend of the family witnessed the assault. The appellant gave evidence that he did not assault the complainant.

Ground: Verdict was unreasonable.

Decision and reasoning: Appeal dismissed. There were inconsistencies between the child complainant’s s93A Evidence Act statement (taken in a timely way after the incident) and the cross-examination (conducted 16 months after the incident) as during the latter the ‘complainant had little recollection’ of the events. However, this did not preclude the jury from relying on the s 93A statement, especially considering that the complainant’s statement was supported by evidence given by his mother and the family friend, as well as consistent medical evidence. Therefore, it was not unreasonable for the jury to find the appellant guilty.

R v Young [2020] QCA 140 (26 June 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Inconsistent verdicts’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Reliability’ – ‘Temporary protection order’

Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1; choking in a domestic setting x 1

Case type:Appeal against conviction, application to adduce evidence on appeal

Facts: The appellant man was charged on indictment with one count of assault occasioning bodily harm whilst armed (Count 1), one count of common assault (Count 2) and one count of choking in a domestic setting (Count 3). The Crown entered a nolle prosequi in respect of Count 1. All counts were domestic violence offences against the appellant’s female domestic partner. The complainant’s evidence at trial was that it was a mutually abusive relationship against a background of excessive drinking. A temporary protection order was made against the appellant in favour of the complainant in 2017. In relation to Count 2, it was alleged that the appellant kicked the complainant on the legs, causing her to fall. With respect to Count 3, it was argued that he grabbed the complainant around the throat. A jury found the appellant not guilty of Count 2, but guilty of Count 3. He was sentenced to 2 years’ imprisonment, with the conviction recorded as a domestic violence offence.

Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.

Held: The application for leave to adduce further evidence was refused, and the appeal against conviction was dismissed. The Court found that the jury was undoubtedly fully aware of the inconsistencies in the evidence ([99]). Taking into account all of the appellant’s arguments, there was nothing which led the Court to doubt the appellant’s guilt. It was open to the jury, on the whole of the evidence, to be satisfied of his guilt beyond reasonable doubt. The complainant’s account of the choking after a sustained argument in the kitchen was compelling ([102]). That account of the attack and the pressure she felt was substantiated by the medical evidence, which also indicated that the injuries were consistent with choking ([103]). Further, the evidence of witnesses was substantially consistent with the complainant’s account. Whilst there is "no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it" (Pell v The Queen [2020] HCA 12 (7 April 2020), there was in fact strong corroborative evidence here. Despite some inconsistencies, particularly in relation to the time of the choking, the Court was satisfied that the jury acting rationally would not have entertained a reasonable doubt as to proof of guilt. Given the complainant’s level of distress at the time and her acceptance during the course of her evidence that her memory of some events of that day were unclear, a mistake as to the time the choking event occurred was understandable ([104]-[105]).

R v Castel [2020] QCA 91 (6 May 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Female perpetrator’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Weapon’

Offences: Manslaughter (domestic violence offence)

Proceedings: Application for leave to appeal against sentence

Issue: Whether the sentence was manifestly excessive.

Facts: The woman applicant and her husband and victim had been married since 2010. Throughout this time, they argued occasionally, particularly about the husband arriving home from work after 6pm. On the day of the offending, the husband arrived home after 8pm and an argument developed while the couple were in the kitchen. The applicant threw the husband’s laptop at him, then picked up a 20.5cm long kitchen knife and threw it at him from 2-3m away. It landed in his chest region and either he pulled it out or it fell out. The applicant immediately said she was sorry, used a towel to cover the wound and called 000. Despite medical intervention, the husband died. The applicant was sentenced to nine years’ imprisonment, with no fixed date for parole eligibility. She appealed against her sentence.

Judgment: The majority (Sofronoff P and Mullins JA) held that the head sentence of nine years’ imprisonment was not inappropriate, but that failing to fix an eligibility date for parole was "unreasonable or plainly unjust" and was manifestly excessive [38]. They emphasised that the applicant had no criminal history, showed immediate remorse for her conduct, entered an early plea of guilty and was not at high risk of reoffending, and therefore ordered that her sentence be mitigated by including a date for eligibility for parole that was one-third of the sentence in custody [38].

Mullins JA (with whom Sofranoff P agreed) further provided that "section 9(10A) of the [Penalties and Sentences Act 1992 (Qld)] is a legislatively prescribed aggravating factor that must be taken into account in arriving at the appropriate sentence for the offence of manslaughter that is a domestic violence offence, unless the exception within the provision due to the exceptional circumstances of the case applies" [35]. Section 9(10A) refers to offenders convicted of domestic violence offences. In such cases, the fact that the offence is a domestic violence offence is an aggravating factor that is added to the other aggravating factors and balanced with any mitigating factors [35].

Boddice J (dissenting) dismissed the appeal, holding that the applicant’s offending was "an extraordinary act of violence" and was a "very dangerous action" [42] that occurred in circumstances where the applicant was sober, sane, not provoked and not acting in self-defence [43]. He considered the applicant’s offending to be a very serious example of a domestic violence offence, making the circumstance of aggravation a very relevant factor in sentencing [44]. He contended that the aggravating factors outweighed any mitigating features [45] and that the sentence "fell within a sound exercise of the sentencing discretion" [46].

R v HBZ [2020] QCA 73(17 April 2020) – Queensland Court of Appeal

‘Animal abuse’ – ‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Non-fatal strangulation’ – ‘Step-children’

Facts: The appellant man was convicted of choking the female complainant in a domestic setting (domestic violence offence) (count 1) and common assault (domestic violence offence) (count 2) after trial before a jury in the District Court. He was sentenced to imprisonment for two years and six months on count 1 to be suspended after serving 15 months’ imprisonment for an operational period of three years. He was sentenced to three months’ imprisonment for count 2.

The appellant often stayed at the complainant’s home where she lived with her five children; the appellant was the father of the youngest child. The appellant and his dog were staying at the complainant’s home when the appellant’s dog urinated on the floor and the complainant asked her son to tell the appellant.

The complainant’s evidence in chief was that:

•

The appellant hit the dog on the floor, rubbed it’s face in the urine and told the complainant his abuse of the dog was her fault. She asked him to leave, locked him out and went into a bedroom. He let himself back in with a spare key.

Re Count 1:

•

She dialled 000 and then: "[The appellant] moved the camp beds and he grabbed me, and he grabbed the phone, and then he put his hands around my neck – his right hand, and then he pushed on my shoulder at the same time to knock me onto the bed, and then he pinned me to the bed with his hand to stop me from speaking. So when I first started speaking, I could ask for help, but then the words wouldn’t come out, and I struggled to breathe."

•

The appellant grabbed the phone and smashed it. The appellant’s right hand was almost in a "V" around her throat and "instead of squeezing, he just was on top of me and used his body weight as the force to stop me from speaking". She couldn’t speak, felt pains in her chest and had black spots in her vision. She asked him to stop 3 or 4 times before she ran out of breath. She could not breathe for probably 70 seconds. She asked him to call an ambulance because she couldn’t breathe. [5]

Re Count 2:

•

"He grabbed my shoulders. When I was having difficulty breathing before he left, he grabbed my shoulders and shaked me and…. he shook me so hard that I was just flicking back and forth, and I could feel my neck – like, the back of my head hitting the back of my shoulders…."

•

He gave her "a really, really tight hug" and grabbed her by the shoulders. She told him to leave and he left.

•

She made a video diary of the incident and her injuries.

In cross-examination:

•

"The complainant denied, when it was put to her, that after the incident she was having trouble breathing due to a panic attack."

•

When it was put to the complainant that the appellant did not have his hand on her neck or throat "that much" she disagreed; "He pushed the air out of me and I thought I was going to die." [10]

•

She recorded in her video diary: "I’m finding it hard to breathe. I think it’s just a panic attack. Because he didn’t have his hand around my neck and throat that much." [11]

•

She did not call the ambulance immediately: "I was still having trouble breathing, which is why, on the video, I said I felt like I was having a panic attack during the video. Because I couldn’t understand, after his hand had been removed, why I was still having difficulty breathing.""[11]

•

She denied moving the camp beds into the bedroom after he left. [12]

Medical records included a note: "the patient states her partner pushed her onto the bed and strangled her with both hand pushing downwards then made multiple blows with fists to the shoulder and head. Patient unsure if knocked out."

In the complainant’s video record of interview he said there was a struggle for the phone. "He then sat down, gave her a big hug and got her to calm down. He denied choking her or trying to do that. He thought his thumb may have made contact with her during the struggle for the phone."[20]

Against the objection of defence counsel [21] the jury were given both a handout and direction in the terms: "‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’."[20] Defence counsel argued there was only one definition given to the jury whereas dictionaries gave various definitions. [23]

Grounds: The grounds of appeal against conviction were:

1.

the learned trial judge erred in the direction given to the jury on the definition of choking;

2.

the appellant was deprived of a fair trial, because of the manner in which the allegations of fact in count 1 were particularised;

3.

the verdicts on counts 1 and 2 were unreasonable and cannot be supported, having regarded to the evidence.

The sole ground of the application for leave to appeal against sentence was that the sentences were manifestly excessive.

Held:

1. Appeal against conviction dismissed.

Ground 1: Mullins JA considered the construction of s 315A Criminal Code (Qld) in light of s14A Acts Interpretation Act 1954 (Qld) and the purpose given for the introduction of the offence in the relevant Bill Explanatory Notes referring to recommendation 120 of the Special Taskforce on Domestic and Family Violence (Queensland) in its Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.

"In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking."

The direction given by the trial judge on the meaning of "choked" was correct. It was a direction on the law. The meaning of the word "choked" for the purpose of count 1 was a matter of legal interpretation and it was appropriate that the judge directed the jury to apply the meaning "to hinder or stop the breathing of a person"." [58]-[59]

Ground 2: The appellant’s argument was that as the particulars specified alternative conduct for each count they failed to sufficiently inform him of the case against him (Count 1: "stopped and/or hindered [the complainant’s] breathing and, in doing so, choked her"; Count 2: "shook and/or applied force to [the complainant’s] shoulders and, in doing so, he unlawfully assaulted her" [60]). The complaint re Count 1 was resolved by the conclusion as to meaning of "choke" re ground 1; it was sufficient that the jury be satisfied the complainant putting his hand around her neck hindered her breathing [62]. There was no substance to the complaint re Count 2 [63].

Ground 3: The jury were given extensive and appropriate directions that they could not convict unless satisfied beyond reasonable doubt that the complainant was "a reliable and truthful witness"… "that she was choked by the [appellant] by him placing his right hand around her throat and squeezed in the way that she described" and similar directions were given re Count 2 [65]. The jury’s verdicts were not unreasonable [66].

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

The trial judge considered the sentencing decisions in R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283. Mullins JA said: "Objectively, the appellant’s offending was less serious than the offending in MCW and MDB. The appellant also was younger than those offenders and without the relevant prior criminal history. It was therefore surprising that the prosecutor at the trial submitted to the trial judge that a sentence in the order of three years and six months or four years’ imprisonment was appropriate. It does not assist a sentencing judge, when the prosecutor’s submissions propose a sentence that is outside the proper exercise of the sentencing discretion for the offending committed by the particular offender." [71]

4. Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.

5. The declaration as to pre-sentence custody and other orders made at first instance are confirmed.

R v Ridgeway [2020] QCA 38 (10 March 2020) – Queensland Court of Appeal

‘Alternative hypothesis’ – ‘Attempted murder’ – ‘Children’ – ‘Evidence’ – ‘History of abuse’ – ‘Jury directions’ – ‘Miscarriage of justice’ – ‘Misdirection or non-direction’ – ‘Motive’ – ‘Post-offence conduct as evidence of consciousness of guilt’ – ‘Separation’ – ‘Verdict unreasonable or insupportable having regard to evidence’

Charges: Attempted murder x 1 (aggravating circumstance of being a domestic violence offence).

Case type: Appeal against conviction

Facts: The appellant man was convicted of one count of attempted murder (domestic violence offence) and was sentenced to 10 years’ imprisonment with a non-parole period of 8 years. The appellant, an electronics engineer, was alleged to have attempted to murder his wife (the victim) by connecting a garden hose to a nitrogen gas cylinder which was then attached to the inside of the caravan where the victim slept. There was evidence that the appellant had motive to kill the victim because she was taking preliminary steps to divorce him and had demanded that he leave the matrimonial home. She had also left a will making him her beneficiary. In his police interview, the appellant denied knowledge of the contraption. At trial, however, he admitted that he constructed the contraption as a drainage system ([74]). Further, the appellant acknowledged his relationship difficulties with the victim and told police that they had an argument concerning their daughter. According to the victim, that argument led to the appellant pushing her against a wall while threatening to punch her. As a result, she called the Domestic Violence Hotline.

In summary, the appellant’s case was that the Crown had failed to exclude the hypothesis that the victim had constructed the apparatus, because there was evidence that:

•

She had a motive to implicate her husband falsely in a murder attempt.

•

The appellant must have appreciated that the apparatus could not have killed his wife.

•

The contraption was ineffective to kill.

Issue: The appellant appealed against conviction. He submitted that the guilty verdict could not be supported by the evidence or was unreasonable ([52]) (Ground 1). He also claimed that the trial judge failed to direct the jury that an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill his wife ([97]) (Ground 2), and complained about the trial judge directions as to the use of post-offence conduct as proof of his intention ([107]) (Ground 3). His appeal also included the claim that there was a failure to distinguish attempted murder from other offending based on the same physical acts, but with different mental elements, which might have explained the post-offence conduct ([114]) (Ground 4).

Held: All four grounds of appeal were dismissed. Sofronoff P (with Philippides JA and Flanagan J agreeing) noted that it was open to the jury to reject the appellant’s explanation for constructing the contraption. His credit was impaired by his failure to offer this explanation when first interviewed by police. Further, the verisimilitude of his explanation was reduced by the uselessness of the contraption as a drainage system, and the inconsistencies in his reasons for erecting the drainage system. The jury was therefore entitled to accept the victim’s evidence and be satisfied beyond reasonable doubt that the appellant constructed the apparatus to deliver gas into the caravan in which his wife was sleeping ([81]-[82]). The evidence that the victim had informed the appellant that she wanted a divorce, together with the evidence of lies to police, supported a conclusion that the appellant believed that he had built a system that would be effective to kill ([88]). His Honour therefore held that the jury could be satisfied beyond reasonable doubt of the appellant’s guilt.

As to the second ground of appeal, the appellant was unable to establish a miscarriage of justice by merely asserting that the trial judge miscarried through a lack of proper directions about proof of the appellant’s intention ([106]). A redirection was not sought ([101]). Whilst the trial judge did not identify the series of evidentiary steps that the jury could take to find guilty intent, doing so would have assisted the prosecution, not the defence ([106]).

Further, the appellant submitted that there was an alternative hypothesis that he had set up the apparatus to harass his wife, and therefore, his post-offence conduct was indicative of his sense of guilt for trying to harass her ([109]). This submission failed because harassment by the use of nitrogen, as an alternative hypothesis, did not arise as an issue in the case ([110]).

Ground 4 was also rejected. Citing R v Baden-Clay, the Court stated that "it is not necessary for a jury to consider a hypothesis which was not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence". Any intention on the appellant’s part to do anything other than kill his wife or drain water did not arise on the evidence and did not have to be considered ([120]).

R v Toweel [2019] QCA 303 (20 December 2019) – Queensland Court of Appeal

‘Children’ – ‘Evidence issues’ – ‘Jury directions’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Propensity evidence’ – ‘Strangulation’

Charges: 1 x unlawful strangulation; 1 x unlawful assault

Case type: Appeal against conviction

Facts: The appellant was charged with 2 offences, committed on the same day against a woman (the complainant) with whom he was in a domestic relationship and had a child. Count 1 involved the appellant strangling the complainant ‘really tight’ for a period of about 15 seconds, stopping only when their son fell from a couch. Count 2 occurred shortly afterwards. The appellant grabbed the complainant’s hair and repeatedly said ‘bitch’ while she held their son. The appellant then destroyed her phone ([4]-[5]). The complainant also gave evidence of 5 previous incidents of domestic violence ([11]-[17]); however, the appellant did not give or call evidence ([18]). The jury convicted the appellant on both counts.

Issue: The issue for the Court was whether the appeal against the convictions should be allowed. The appellant appealed against each conviction on the ground that the trial judge wrongly admitted evidence of prior acts of domestic violence by him against the complainant. He also appealed against the conviction on the strangulation charge on the ground that the verdict was unreasonable.

Held: The Court dismissed the appeal. The evidence summarised at [4]-[18] was admitted under s 132B(2) of the Evidence Act 1977 (Qld). The question for the Court was whether the admission of the evidence resulted in a miscarriage of justice ([34]). The Court held that the evidence of prior events was relevant to establish that the alleged offending did not occur randomly and to demonstrate the nature of the relationship between the appellant and complainant. To minimise any risk of the jury engaging in propensity reasoning, the trial judge warned them that they were not to use the evidence as demonstrating the appellant’s propensity to commit similar offences ([37]-[38]). Overall, the jury directions avoided the misuse of the evidence, and no miscarriage of justice was caused by its admission ([40]).

Vital v DPP (Qld) [2019] QCA 290 (6 December 2019) – Queensland Court of Appeal

‘Appeal’ – ‘Assault’ – ‘Bail’ – ‘Physical harm and violence’ – ‘Separation’ – ‘Weapon’

Charges: Murder x 1; assault occasioning bodily harm while armed and in company x 1; burglary at night x 1; common assault x 1; and robbery with personal violence as a domestic violence offence x 1.

Proceedings: Appeal against refusal to grant bail.

Facts: The accused was a 19-year-old male with no prior criminal history. He was in an abusive relationship with the daughter of a man he was charged with murdering at the time of offending.

On the day of the offending, the daughter told the accused their relationship was over. That night, the appellant was in the daughter’s bedroom when she came home but was asked to leave by her flatmate. After leaving the apartment he began to make a nuisance of himself, causing the flatmate to call the daughter’s father (the victim) who soon arrived with another man. The appellant fled by car with his companion and was followed by the victim and the other man. The appellant eventually stopped the car and his companion went onto the road and took out a pistol which he pointed at the victim’s car. The victim’s companion approached the appellant, who was still in the car, and began to punch the window.

The appellant’s companion hit the victim with his pistol and knocked him unconscious. This blow ultimately killed the victim. The appellant and his companion then took off, briefly returning to the daughter’s home and punching her two or three times in the face before fleeing again.

The appellant submitted that the judge who refused his bail application ‘must not have given consideration to the appellant’s youth, his lack of criminal history and, as the appellant asserts, the weakness of the Crown case against him, the weight that these matters deserved’. He submits that it should be inferred that Justice Davis made an error, and in oral argument, he has also submitted, that Justice Davis must have overlooked the extraordinary delay of about 18 months until there can be a trial in this matter. (per Soffronoff P at [7-8]).

Issue: Whether to grant leave to appeal.

Decision and reasoning: Sofronoff P stated that ‘in an appeal against a discretionary decision, it is not a valid ground of appeal to contend that the judge did not give sufficient weight to a relevant factor or gave too much weight to a factor. Weight is a matter for the decision-maker alone’ [7]. His Honour thus dismissed the appellant’s related claims.

The submission that the judge must have overlooked the delay was not accepted as a delay of that order was to be expected [12]. Furthermore, regarding the appellant’s claim of error, Sofronoff P concluded that ‘[i]n an application for bail, the appellant’s actions after he returned to Jane’s house could, on their own, justify a refusal of bail. When they are taken into account in a case in which the applicant is also awaiting trial for murder, refusal of bail can hardly be regarded as so unreasonable that an error of some kind in the judge’s reasoning has to be inferred. Yet that is what the appellant must show in order to persuade this Curt to disturb the decision of Justice Davis. In my view, he has failed to do so, and the appeal should be dismissed’ [13].

R v O'Malley [2019] QCA 130 (28 June 2019) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Domestic violence offence’ – ‘Dysfunctional upbringing’ – ‘People with disability and impairment’ – ‘Physical violence and harm’

Charges: 1 x manslaughter

Case type: Appeal against sentence

Facts: The applicant pleaded guilty to manslaughter by unlawfully killing the deceased, with whom he was in a domestic relationship for some 18 months. The applicant was sentenced to 11 years’ imprisonment. The conviction was declared to be a domestic violence offence and a serious violent offence.

The applicant told ambulance offices that the deceased fell off the toilet shortly before he had called them, and that she had also fallen in the shower the night before ([11]). However, a post-mortem of the deceased’s body revealed that the most likely cause of death was multiple injuries, including multiple rib fractures and liver lacerations. Such injuries were inconsistent with a fall in a shower, and were most likely to have resulted from a ‘focused and severe force, such as kicking or stomping’ ([14]). Although the applicant disagreed with the pathology report ([21]), his mobile phone records demonstrated that he knew the deceased had broken ribs ([22]). The agreed statement of facts recorded that the applicant was to be sentenced on the basis that he (1) unlawfully assaulted the deceased causing the injuries which led to her death; (2) kneed her to the stomach and to the back; (3) caused head and facial injuries; and (4) assaulted her in the past as evidenced by the facial bruising previously observed by witnesses and the healing fractures, which demonstrate that this was not an isolated violent incident ([24]).

Issue: The applicant filed an application for leave to appeal against his sentence on the ground that it was manifestly excessive, and wished to add an additional ground of appeal, namely, ‘that the learned sentencing judge erred in finding that his post-offence conduct demonstrated a complete disregard for the deceased and did not demonstrate remorse or concern for the deceased’ ([48]).

Held: The applicant’s antecedents and criminal history is discussed at [25]-[36]). The applicant has Aboriginal heritage. He also had a history of criminal offending, including convictions for breaking and entering, and property damage, and, most importantly, for offences against his former partner for property damage, common assault, contravention of a prohibition or restriction in an apprehended violence order, and use of a carriage service to menace, harass or offend. He claimed to have had a ‘socially deprived upbringing’ - his father was a ‘professional and serial criminal’ and his step-mother was emotionally abusive. His biological mother was not involved in his care due to very heavy alcohol dependency and abuse. He also claimed to have been sexually abused when he was 11 years old. Psychological testing suggested that the applicant’s intellectual level likely fell in the intellectually disabled range. A psychologist observed that his dysfunctional and abusive upbringing likely significantly influenced his offending behaviour.

The Court distinguished the present case from DeSalvo, Murray, West and Heazlewood where the courts did not consider a domestic violence offence ([89]). The applicant had a relevant prior criminal history, including convictions for prior domestic violence episodes, which distinguished him from the offenders in Sebo, Baggott, Pringle and Hutchinson ([91]). Given the ‘seriousness of the offending manifested by the brutality of the applicant’s assault and the relative defencelessness of the deceased, the applicant’s remorse after the assault, his timely plea of guilty, his antecedents, his deprived social upbringing, his intellectual disability and the state of his mental health, and bearing in mind the need for some personal deterrence due to his past domestic violence offences and his moderate risk of reoffending, the related need for community protection, and the importance of denunciation of domestic violence offences causing death’, the sentence imposed by the trial judge was just in all the circumstances, and thus stood as ‘the appropriate sentence for the offender and the offence’ ([95]-[96]). Consequently, leave to appeal against sentence was dismissed on both grounds.

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 (14 June 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘Leniency’ – ‘Mitigating factors’ – ‘Sentencing’

Charges: Attempted murder x 2.

Case type: Appeal against sentence.

Facts: The respondent and his partner had an argument after the respondent came home from the pub. The respondent later walked to his mother’s house, where his mother lived with her partner, and violently assaulted them. The respondent’s mother suffered multiple injuries, including a fracture to her eye socket, while her partner suffered fractures, 2 broken ribs and an injured liver. The respondent pleaded guilty to 2 counts of attempted murder. Crow J, the sentencing judge, sentenced the respondent to 2 concurrent sentences of 9 and a half years imprisonment.

Issue: The Attorney-General appealed against the 2 sentences on the ground of manifest inadequacy. Key questions included whether Crow J gave appropriate weight to the mitigating and aggravating factors of the offence and the respondent’s personal circumstances, and whether a sentence below 10 years imprisonment for 2 counts of attempted murder was manifestly inadequate.

Held: The Court dismissed the appeal. Appellate intervention is not justified simply because the result is markedly different from other sentences that have been imposed in other cases ([15]). Rather, the Attorney-General was required to demonstrate actual error with Crow J’s reasoning.

The Attorney-General’s submissions included that the attacks were premeditated, that the respondent lacked remorse, that his guilty pleas were late, and that he carried out the offending while he was subject to a Domestic Violence Order ([20]). The respondent had previously assaulted his mother. It was submitted that the Crow J did not give these matters appropriate weight ([21]).

The Court noted that the case involved substantial mitigating factors that were personal to the respondent ([23]). The respondent’s current state of health was partly caused by his mother’s lifelong neglect of him, and was significantly exacerbated by both of his victims’ irresponsibility over the respondent’s son’s death, and by their callousness afterwards ([40]).

It was in these circumstances that Crow J viewed the respondent’s case as ‘far from general.’ The most relevant circumstance was the killing of the respondent’s son by the victims’ dog ([37]). The offending was motivated by the son’s death ‘in a most violent fashion’ ([35]). The Court held that it was open for Crow J to give substantial weight to the mitigating factors and, subsequently, impose a somewhat ‘lenient’ sentence. It was not for the Court of Appeal to substitute its own views about these matters ([41]).

R v Black [2019] QCA 114 (11 June 2019)– Queensland Court of Appeal

‘Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Rape’

Charges: Assaults occasioning bodily harm x 3; Rape x 1.

Case type: Appeal against conviction.

Facts: The appellant was found guilty of 2 counts of assault occasioning bodily harm and one count of rape. He was acquitted of another charge of assault. For the offence of rape, the appellant was sentenced to 5 years’ imprisonment, suspended after 27 months with an operational period of 5 years. He was sentenced to concurrent terms of 12 months’ imprisonment on the other counts.

The appellant and complainant were married and had 2 children when the offending allegedly occurred. They separated around one year later. The first count of assault occasioning bodily harm involved allegations that the appellant pushed the complainant against a staircase, verbally abused her, ripped off her clothes and grabbed her breasts. The complainant said that she suffered bruising as a result of this event. The second count involved allegations that the appellant unlawfully assaulted and caused bodily harm to the complainant by slamming a door closed, hitting her fingers. The appellant also allegedly raped the complainant. It was alleged that the appellant and complainant were on good terms for many years after the couple had divorced. The complaint was made to the police over 8 years after the alleged events occurred and at a time when the complainant and the appellant were in litigation about their children.

Issue: The appellant appealed against the convictions on the ground that the jury’s verdict was unreasonable having regard to the evidence.

Held: The appellant submitted that the complainant’s attitude towards the appellant after separation was not that which would be expected of someone who had suffered the conduct alleged ([24]). The Court held that the cordial relationship between the parties provided a substantial basis for challenging her testimony, and may have justified a reasonable doubt in the minds of the jury in relation to the count of rape ([35]).

However the question for the Court was whether it was open, on the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over the Court, which had not seen or heard the complainant’s evidence being given ([36]).

Their Honours noted the importance of the timing of the complaint to police. While it strongly indicated that it was affected by the litigation between the couple about their children, it did not require the jury to have a doubt about the credibility of the complainant’s complaints. It was open to the jury to accept the complainant’s evidence, and the Court ordered the appeals against conviction to be dismissed ([37]-[38]).

R v ABE [2019] QCA 83 (14 May 2019) – Queensland Court of Appeal

‘Children’ – ‘History of abuse of accused’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Primary carer’ – ‘Stalking’

Charges: Stalking x 1 (Count 1); malicious act with intent x 1 (Count 2); grievous bodily harm x 1 (Count 3).

Case type: Sentence application and appeal.

Facts: The applicant experienced domestic violence from her husband (the complainant) from 2005. Cross-protection orders prohibited them from living together. The applicant arrived at the matrimonial residence with two children of the marriage. Her husband was residing at that residence. That night, the complainant sustained 4 stab wounds at the hands of the applicant. He also suffered 2 lacerations to the right hand that caused tendon and nerve damage. These events constituted Counts 2 and 3. The applicant and complainant were separated, and their severely disabled daughter, AA, was in hospital at the time of the offending. The applicant is her primary carer. The complainant for Count 1 was a family friend who was having an affair with the complainant.

The applicant pleaded guilty to the charges. She was sentenced to four months’ imprisonment for Count 1, and six years’ imprisonment with a parole eligibility date fixed after serving 15 months in custody for each of the other counts.

As the sentence for the stalking was already served, the purpose of the application was to review the sentence imposed for the other counts. The applicant applied for leave to appeal against her sentence on the basis that it was manifestly excessive and that the sentencing judge erred in failing to find that the circumstances of AA were exceptional and therefore justified a non-custodial sentence. The applicant also applied for leave to adduce further evidence, namely an affidavit from her adult daughter which detailed the care arrangements for AA since the applicant went into custody.

Issue: Whether the sentence was manifestly excessive; Whether the sentencing judge erred in failing to take into account the applicant’s disabled daughter’s needs.

Held: The appeal against the sentence was allowed, and the sentence was varied. Mullins J noted that the offences were committed in circumstances where the applicant was AA’s primary carer. When imposing an appropriate sentence, a balancing exercise needs to be undertaken which fulfils the purposes of ‘sentencing for serious offending involving premeditated use of a weapon to inflict injury in a domestic setting, but also [to] allow for the mitigating circumstances and particularly the applicant’s role in relation to the special needs of AA’. The period served in custody should be sufficiently long to reflect appropriate punishment for the crime, without separating the applicant from AA for any longer than is necessary ([47]). Her Honour held that, in light of AA’s needs, the custodial component of the sentence should have been reduced by a further period of 6 months. Therefore, the sentence was manifestly excessive to the extent of fixing the parole eligibility date after 15 months in custody rather than after a period of 9 months ([48]). Davis J and Sofronoff P agreed with the reasons of Mullins J. Citing R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22, Davis J noted that although hardship to an offender’s family resulting from the offender’s imprisonment cannot override all other sentencing considerations, there will be some cases where family hardship results in a substantial reduction either in the sentence, or the period to be served before parole eligibility even where the offending is serious ([52]).

The Court also refused the application for leave to adduce further evidence because it was neither necessary nor expedient, in the interests of justice, to receive further affidavits of the adult daughter ([37]).

R v Lan [2019] QCA 76 (7 May 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Self-serving statements’ – ‘Strangulation’

Charges: 1 x attempted murder

Case type: Appeal against sentence

Facts: The applicant was convicted on his plea of guilty of attempted murder (domestic violence offence) and sentenced to 9 years’ imprisonment with no further order ([1]). The applicant and complainant were involved in a relationship for approximately one year prior to separating, but remained friends. The offending conduct took place when the applicant attended the complainant’s unit. He made unwanted advances towards her, punched her and threatened to kill her. The complainant lost consciousness for a period and, upon regaining consciousness, saw the applicant standing over her with his pants and underwear down. He also strangled the complainant. The applicant later provided self-serving statements to the police which sought to blame the complainant for violent behaviour towards him ([3]-[13]).

Issue: The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive.

Held: The applicant made a number of written submissions in support of his application ([22]). He maintained that she had burned his face with a lighter ([23]), which was not part of the agreed statement of facts. He also asserted that the complainant suffered from a mental illness ([24]), and sought to minimise the seriousness of his conduct, which demonstrated a lack of remorse or insight ([25]).

The application for leave to appeal against the sentence for attempted murder was refused. Philippides and McMurdo JJA and Mullins J found that the applicant’s assertions conflicted with the agreed facts and partly reiterated the self-serving statements he made to police ([26]). Their Honours agreed with the respondent’s submissions that the sentence imposed was within the sentencing discretion and supported by authorities such as R v Sauvao, R v Ali, R v Seijbel-Chocmingkwan and R v Kerwin. After analysing these authorities at [28]-[31], their Honours found that they demonstrated that the 9 year sentence was within the sound exercise of the sentencing discretion ([32]).

R v Kau [2019] QCA 73 (3 May 2019) – Queensland Court of Appeal

‘Corroborative evidence’ – ‘Domestic violence offence’ – ‘Mistake direction’ – ‘Rape -sexual and reproductive abuse’

Charges: 2 x rape (domestic violence offence)

Case type: Appeal against conviction

Facts: The appellant was charged with 4 counts of rape, and convicted on 2 counts as a domestic violence offence. He was sentenced to 5 years’ imprisonment, suspended after 2 and a half years in custody. The complainant was the appellant’s wife. Counts 1 and 3 (subjects of the guilty verdicts) were particularised as vaginal rapes, while Counts 2 and 4 (subjects of the not guilty verdicts) were alleged anal rapes ([4]).

Issue: The appellant appealed against his conviction on 2 grounds ([5]):

•

‘The convictions should be set aside as unreasonable because the guilty verdicts were inconsistent with the not guilty verdicts on the other counts’;

•

‘There was a miscarriage of justice because the…trial judge ought to have directed the jury to consider whether they were satisfied beyond reasonable doubt that the appellant did not act under a mistake of fact as to the complainant’s consent on the two counts the subject of the guilty verdicts’.

Held: To succeed on the first appeal ground, the appellant must prove the verdicts were inconsistent as a matter of logic and reasonableness. The test is that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’ ([6]). There were 3 differences in the quality of the evidence considered by the jury ([9]), namely, the difference in what the complainant told her confidantes before she reported to the police ([10]), the difference in her report to the police ([11]), and a recording of a conversation between the complainant and appellant in which she made no mention to anal penetration ([12]). There was also evidence that might have corroborated Counts 1 and 3 ([15]), but there was no such evidence about Count 2 or 4 ([20]). The Court held that it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on Counts 1 and 3. The differences in the quality of the complainant’s evidence and appellant’s corroborative evidence provided a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts for Counts 1 and 3 and Counts 2 and 4 ([23]).

The second appeal ground argued that the jury ought to have been directed to consider whether the Crown had satisfied them beyond reasonable doubt that the appellant had not acted under an honest and reasonable, but mistaken, belief that the complainant had consented to the vaginal penetrations. To succeed on this proposed ground, the appellant must demonstrate that the trial judge should have given a mistake direction and that it is reasonably possible that the failure to do so may have affected the verdict ([24]). In light of the evidence, there was a negligible prospect of the jury, having accepted the occurrence of the vaginal penetrations, having a reasonable doubt whether the appellant acted under an honest and reasonable, but mistaken, belief as to the complainant’s consent. In the circumstances, the trial judge was under no duty to give such a direction ([39]). The appellant was therefore not deprived of a real chance of an acquittal by the failure of the trial judge to give a mistake direction to the jury.

Consequently, the appeal was dismissed.

R v Sollitt [2019] QCA 44 (19 February 2019) – Queensland Court of Appeal

‘Breach protection order’ – ‘Children’ – ‘Evidence’ – ‘Evidence issues’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’

Charges: Assault occasioning bodily harm x 2; contravention of a domestic violence order; rape.

Case type: Appeal against conviction. Application for an extension of time.

Facts: The appellant was charged with a number of offences against the complainant, his then de facto partner. The complainant’s daughter and son gave evidence of the events ([33]-[40]). The complainant herself gave evidence asserting that she was in a ‘domestic violence cycle’ ([23]). After a trial, the appellant was convicted of two counts of assault occasioning bodily harm (domestic violence offence) and contravention of a domestic violence order. The jury acquitted the appellant of a charge of torture and was unable to reach a verdict in relation to a charge of rape. After a retrial on the charge of rape, the appellant was convicted and sentenced to seven years’ imprisonment ([1]-[4]). The appellant submitted that consent was given by the complainant and that sexual intercourse in the context of the violent circumstances was not a departure from the usual dynamics of the relationship. The Crown contended that if there was any ostensible consent by the complainant, it was induced by force and invalid at law, and that the appellant could not have held a mistake of fact as to consent ([46]). The appellant appealed against his conviction of rape on the grounds that the jury’s verdict was unreasonable and unsafe, and there was a miscarriage of justice, resulting from the trial judge’s misdirection of the jury on the defence of mistake of fact ([5]).

Further, the appellant sought an extension of time in which to appeal his sentence ([6]). The applicant’s explanation for delay in filing the application for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence and that he thought he would be able to get more time ([69]).

Issues: Whether the verdict was unreasonable or insupportable. Whether the appeal should be allowed. The predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent.

Decision and reasoning: The appeal against conviction was dismissed and the application for an extension of time was refused.

Appeal against conviction:

In relation to the appellant’s contention that the jury’s verdict was unreasonable or cannot be supported by the evidence, the Court considered whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty based on the whole of the evidence. In determining this question, the Court undertook its own independent assessment of the evidence, assessing its sufficiency and quality ([45]). As to the issue of consent, the Court held that it was entirely open to a jury to find that the complainant gave an honest and reliable account, and it was not surprising that the jury were satisfied that the prosecution had negatived any mistake of fact as to consent on the part of the appellant. There was no evidence from the appellant that he held an honest but mistaken belief as to voluntary consent. Moreover, the appellant’s conduct immediately following the offence and his admission to the complainant’s daughter undermined any assertion that the appellant honestly and reasonably believed that the complainant consented ([51]-[52]). It was also appropriate for the jury to have regard to the ‘ongoing domestic violence in the relationship’ and the complainant’s continuation of the relationship in considering the issues raised by the case ([53]).

The appellant also made a number of complaints about the trial judge’s directions, such as the fact that his Honour used a number of terms interchangeably regarding consent ([58]) and, in giving his final direction on mistake of fact, failed to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond reasonable doubt ([64]). The trial judge’s use of the words other than ‘consent’ was not found to constitute a miscarriage of justice ([60]). Further, there was no error in failing to specifically mention the standard of proof in the final redirection, as it was given in conjunction with the aide memoire, which itself identified the requisite standard of proof ([66]).

Extension of time:

In considering whether an extension of time should be granted, the court examined whether there was any good reason to account for the delay and considered whether it was in the interests of justice to grant the extension ([68]). The Court was not persuaded that there was any good reason for the delay to grant an extension ([69]). Moreover, the applicant was 43 years old at the time of the sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting. These factors supported the sentence imposed and indicated that the sentence was not manifestly excessive ([70]).

R v ABB [2019] QCA 22 (19 February 2019) – Queensland Court of Appeal

‘Evidence’ – ‘Evidence issues’ – ‘Expert or opinion evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Self-represented litigants’

Charges: Assault, constituting a domestic offence x 4.

Case type: Appeal against conviction. Application for extension of time.

Facts: The applicant was convicted on four counts of assault, each of which constituted a domestic offence. All four counts were committed against the applicant’s wife on the same day. The applicant grabbed the complainant’s hair and pulled her to the ground, put his hands around her throat and choked her, and punched her on the jaw with both fists, which resulted in a fracture and required her teeth to be wired together and the fracture closed with a plate and screws ([4]). At the trial, Dr Webster gave evidence, based on the complainant’s medical records, that the injury had been caused by a blunt force trauma to a significant extent ([30]). The applicant lodged a notice of appeal against his conviction when the time for lodging an appeal had expired over three weeks prior. As a result, the applicant also filed an application for extension of time within which to appeal.

The applicant appealed on the ground that the verdicts were unsafe and unsatisfactory ([32]). He also raised a number of specific grounds, including that

•

The prosecution led propensity evidence, the prejudicial effect of which outweighed any probative force, and created an unfair trial ([33]-[36]);

•

The evidence of Dr Webster was fabricated, causing a miscarriage of justice ([37]-[43]);

•

The complainant at trial had previously practiced her evidence and amended the part of the evidence that would have been harmful to the prosecution case ([44]-[45]);

•

A prejudicial answer was given by the complainant during the trial and there was no direction given to the jury to disregard it ([46]-[51]);

•

There was discrepancy in the complainant’s evidence as to how she was punched;

•

Dr Webster was not qualified to give an opinion that the injury constituted grievous bodily harm as he was merely a trainee as an oral and maxillofacial surgeon ([54]).

Issues: Whether the grounds of the applicant’s proposed appeal had reasonable prospects of success to justify granting an extension of time.

Decision and reasoning: When considering an application for extension of time, the court will examine whether there is good reason for the delay and whether it is in the interests of justice to grant the extension. Length of delay is also a relevant consideration ([7]). Although the length of the delay was not significant, the applicant was well aware of the time limit for filing and allowed the time to pass without taking steps to file a notice of appeal. The Court was inclined to grant the extension of time if the matter had been confined to these considerations; however as the merits of the proposed appeal could not be substantiated, the court refused the application ([22]-[23]).

The applicant’s grounds of appeal failed for several reasons. First, the jury was expressly directed that the evidence was not led as propensity evidence and therefore the trial did not miscarry on the basis that the prosecution led such evidence ([36]). Second, the applicant’s contention that Dr Webster’s alteration of his opinion constituted some sort of fabrication of his evidence, causing a miscarriage of justice, was misconceived ([37]). Third, any suggestion that the complainant was able to rehearse or practice her evidence at the first trial was simply the result of the fact that the first trial was aborted. Whatever benefit she got from giving evidence on that occasion was balanced by the fact that the defence counsel had the opportunity to cross-examine her more than once, and so no prejudice was caused ([45]). Fourth, the Court found that an answer by the complainant, which the applicant argued caused him prejudice as it revealed his infidelity, was unlikely to have carried much weight with the jury and did not deprive the applicant of a fair chance of acquittal ([51]). Fifth, the applicant contended that there were discrepancies in the complainant’s evidence because in her evidence in chief, she said that she was punched after she fell; however in cross-examination, she said she did not scream when she was punched, but when she fell. The Court held that there was no real inconsistency as the first piece of evidence related to when she was punched and the second to when she screamed ([52])-([53]). Sixth, it was admitted at the trial that the injury constituted grievous bodily harm. The fact that Dr Webster was a trainee did not mean that he was not a relevant expert ([54]-[58]).

In reviewing the evidence ([94]-[107]), the Court held that it was open to the jury to be satisfied of the applicant’s guilt. As all the grounds of the applicant’s appeal lacked merit, the appeal had no reasonable prospect of succeeding and the application for an extension of time was refused ([108]). The Court also took into account the fact that the applicant was self-represented ([59]).

R v MDB [2018] QCA 283 (19 October 2018) – Queensland Court of Appeal

‘Aggravating feature’ – ‘Appeal against sentence’ – ‘Breach protection order’ – ‘Domestic violence offences’ – ‘Strangulation’

Charges: 1x common assault, 1x threatening violence, 1x assault occasioning bodily harm, 1x choking in a domestic setting, and 1x wilful damage.

Appeal type: application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant from August 2016. On 22 December 2016, a protection order requiring that the applicant be of good behaviour and not commit acts of domestic violence against the complainant was issued pursuant to the Domestic and Family Protection Act 2012 (Qld) (DFVPA). On 17 February 2017, the applicant attacked the complainant. Consequently, the applicant was charged with five offences (common assault, threatening violence, assault occasioning actual bodily harm, choking in a domestic setting, wilful damage) and three summary offences (deprivation of liberty, breach protection order, unlawful possession of a weapon). On 15 February 2018, the applicant was convicted and sentenced on the five indicted offences and convicted of the three summary offences without any further punishment.

Issues: there were four grounds of the applicant’s appeal:

•

Four-year sentence imposed for the offence of choking was manifestly excessive

•

The sentencing judge erred by relying upon the protection order as evidence that the offending was not isolated.

•

The sentencing judge erred by finding that the applicant had made a threat to kill.

•

The sentencing judge erred by finding that the applicant was generally not credible because he told police it wasn’t illegal to possess a “flick knife” in a private place in circumstances where he was previously convicted of possessing a knife in a public place.

Decision and reasoning: application for leave to appeal against the sentence refused.

Whether the sentence was manifestly excessive was determined by Gotterson JA through a consideration of relevant authority, the nature and purpose of the offence of choking, and the circumstances of the case at hand. Both R v MCW [2018] QCA 241 and Bennet were referred to by his Honour to illustrate the seriousness of the offence and the factors relevant to sentencing offenders under the offence (see [44]-[50]). His Honour then noted there were five material facts that warranted the severity of the punishment; these factors included, among others, the disturbing circumstances of the offending, the physical, emotional and financial impact it had on the complainant, and the applicant’s concerning criminal history (see [52]).

As to the second ground of appeal, his Honour initially notes that the order was part of the agreed facts which formed the basis of the sentence proceedings. Gotterson JA then refers to s 9(3)(g) and s 9(10A) of the Penalties and Sentences Act 1992 in asserting that the existence and contravention of an order is a key consideration for the sentencing judge and forms an aggravating feature respectively. In doing so, his Honour dismisses the foundation of this contention that the order cannot be referred to as evidence. In addressing the applicant’s specific contention, his Honour observes that orders are only made on the basis of evidence of previous difficulties in a relationship and that accordingly, the sentencing judge’s inference that the order was a result of previous relationship difficulties was a reasonable one. Taking this into account, his Honour then affirms that it was correct for the sentencing judge to state that the offences committed on 17 February 2017 were not “an isolated and exceptional incident” (see [26]).

Gotterson JA rejected the third ground of appeal on the basis that the applicant’s contention mis-interpreted the sentencing judge’s remarks in coming to the finding that the applicant threatened to kill her (see [27]). Having regard to the seriousness and criminality of the applicant’s conduct, his Honour perceives the sentencing judge’s finding as reflecting no error at all (see [28]).

Similarly, his Honour also rejected the fourth ground of appeal on the basis that it was a misconstruction of the sentencing judge’s comments. Gotterson JA was of the view the judge made no error in his assessment of the reliability of the matters at hand on the basis of the applicant’s instructions (see [33]).

R v MCW [2018] QCA 241 (28 September 2018) – Queensland Court of Appeal

‘Breach of protection orders’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Strangulation’

Charges: Assault occasioning bodily harm x 2; Choking, suffocation or strangulation in a domestic setting x 1; Contravention of domestic violence order x 1

Appeal type: Appeal against sentence

Facts: The applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of choking, suffocation or strangulation in a domestic setting and one summary charge of contravention of domestic violence order ([4]). The prosecutor, relying on R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228, submitted to the sentencing judge that three years’ imprisonment was appropriate. A variation of the protection order was also sought so as to extend its operation and add a further ‘no contact’ condition.

The sentencing judge held that the offences were ‘cowardly, prolonged and particularly violent’ ([23]) and that the offender posed a genuine threat to the community and particularly, to the complainant ([25]). In respect of each of the assault occasioning bodily harm counts, the applicant was sentenced to imprisonment for two years and six months. Sentences of imprisonment for three years and six months was imposed for the offence of choking, suffocation or strangulation in a domestic setting, and three months for the summary charge. All sentences were concurrent. No date for eligibility for parole was specified. The applicant was therefore ineligible to apply for parole prior to having served half of the effective sentence of imprisonment of three and a half years ([4]).

The applicant appealed on the basis that the sentencing judge had denied him procedural fairness by failing to forewarn the parties of his intention to reduce the head sentence slightly to reflect the guilty plea, and to provide him with an opportunity for a parole at earlier than half the sentence. He also appealed on the basis that the sentence was manifestly excessive.

Issues: Whether the sentence was manifestly excessive; Whether there was a denial of procedural fairness.

Decision and reasoning: Application was refused on the basis that no procedural unfairness arose on the facts and the sentence was not manifestly excessive.

•

Manifestly excessive sentence

The applicant submitted that the sentence imposed was manifestly excessive and that the notional starting point of four years’ imprisonment for the offence against s 315A of the Criminal Code 1899 (Qld) (the ‘Code’) was too high ([33]). Conversely, the respondent contended that consideration must not only be given to the particular circumstances of the applicant’s case, but also to the legislative intention for enacting s 315A to provide for specific liability, and a potentially increased maximum penalty, for offences involving choking (and similar conduct) committed in a domestic setting ([34]). Prior to the sentencing, the Code was amended to create a specific offence of strangulation in a domestic setting (see s 315A). That section prescribes a maximum penalty of seven years to deter the increasing frequency of such behaviour. The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –

‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’

The Court was cautious to apply authorities for sentences for offences constituted by conduct comparable to choking, suffocation or strangulation in a domestic setting, prior to the enactment of s 315A. R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228 involved assaults occasioning bodily harm, the maximum penalty for which was seven years’ imprisonment. The Court found that it was not useful to consider the sentences in those cases as comparable authorities for an offence of strangulation in a domestic setting, having regard to the legislature’s intention for enacting s 315A and the seriousness of that offence.

The test of manifest excessiveness depends on whether the sentence is unreasonable or unjust, in light of all the factors relevant to the sentence (see Hili v The Queen [2010] HCA 45). The fact that the complainant lost consciousness, and that the offending occurred only 18 days after his release from custody for breach of a previous domestic violence order, increased the severity of the offence. The applicant’s criminality was also increased by the fact that the choking incident was preceded, and then followed, by an assault occasioning bodily harm. Further, the applicant showed no remorse for the offending and refused to undergo counselling. Boddice J concluded that the circumstances indicated that the applicant’s offending amounted to ‘an episode of sustained violence undertaken by a recidivist who expressed no remorse’ ([47]). Therefore, the Court found that the sentencing judge did not err in sentencing the offender to three years and six months without any further mitigation, and that the sentence was not manifestly excessive in the circumstances ([44]).

R v Ellis [2018] QCA 70 (17 April 2018) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Risk factors - controlling, jealous, obsessive behaviours’ – ‘Self-represented litigant’ – ‘Women’

Charges: Torture x 1; Assault occasioning bodily harm x 1; Malicious act with intent x 1.

Appeal type: Appeal against sentence.

Facts: The complainant and the applicant had been in a relationship for two months ([4]). The complainant ended the relationship. The next day, the applicant attended at her home and she let him inside. He accused her of being unfaithful to him ([4]). Over the next four hours, the applicant did the following acts to the complainant: slapped her; ripped an earring from her ear; punched her; struck her with a garden trowel; locked her in a cupboard; heated the trowel and a butter knife over the flame of a gas stove and struck her on the legs and near her vulva, causing burns; and forced her to shower, exacerbating the burns ([5]).

The applicant was sentenced to six and a half years’ imprisonment for the torture charge, 18 months’ imprisonment for the assault occasioning bodily harm charge, and 6 years’ imprisonment for the malicious act with intent charge. A serious violent offence declaration was made in respect of the torture charge.

Issues: Whether the sentence of six and a half years’ imprisonment for the torture charge was manifestly excessive.

Decision and Reasoning: The application for leave to appeal against the sentence was refused. It was within the trial judge’s discretion to sentence the applicant and also make a serious violent offence declaration ([19]). The trial judge appropriately balanced the applicant’s personal circumstances, including the fact that he was subject to domestic violence as a child, with the fact that he had a criminal history including domestic violence ([12]).

Harvey v Queensland Police Service [2018] QCA 64 (6 April 2018) – Queensland Court of Appeal

‘Protection orders’ – ‘Related family law proceedings’ – ‘Self-represented litigants’ – ‘Systems abuse’

Charges: Contravention of temporary protection order x 9; Public nuisance x 1; Using a carriage service to menace, harass or cause offence x 1; Failure to surrender into custody in accordance with an undertaking x 1.

Appeal type: Application for leave to appeal against refusal to grant extension of time to appeal against conviction.

Facts: The applicant had been in a parenting dispute with the mother of his son. There were 5 proceedings in which the applicant sought extensions of time to appeal against his conviction:

1.

Six contraventions of temporary protection orders, involving sending threatening emails to the aggrieved.

2.

Public nuisance, involving swearing at police officers outside a police station.

3.

Two contraventions of domestic violence order, involving emailing the aggrieved.

4.

One contravention of domestic violence order and one charge of using a carriage service to menace, harass or cause offence, involving emailing and telephoning the aggrieved.

5.

Failure to surrender into custody in accordance with an undertaking.

The applicant sought to justify the breaches of domestic violence orders on the basis that they were justified under an order of the Family Court (which allowed the applicant to contact the aggrieved for the purpose of communicating in relation to contact with the child of the relationship) ([11]).

Issues: Whether the appeal should be allowed. The applicant sought leave to appeal on the basis that the District Court Judge erred in:

•

not having regard to exculpatory evidence of the applicant’s mental health issues;

•

not allowing exculpatory new evidence;

•

stating that the emails were not relevant to s 286 Criminal Code Act 1899 (Qld);

•

not following Supreme Court authority ([25]).

Decision and Reasoning: The application for leave was dismissed. Sofronoff JA held that none of the grounds were supported by evidence or could justify granted leave to appeal ([26]-[29]).

R v Hutchinson [2018] QCA 29 (9 March 2018) – Queensland Court of Appeal

‘Domestic violence as an aggravating factor’ – ‘Imprisonment’ – ‘Murder’ – ‘Retrospective operation of sentencing considerations’ – ‘Sentencing’

Charges: Murder x 1; Fraud x 1;

Appeal type: Appeal against sentence.

Facts: The deceased and the appellant had been married for a lengthy period. The fraud charge occurred when the appellant mortgaged the family home by using a third party to pretend to be the deceased ([5]). The deceased disappeared, and the appellant was charged with her murder. The appellant deceived the deceased’s family and friends in the days after she disappeared and never revealed how she died or the whereabouts of her body ([6]-[12]). At trial, the appellant was acquitted of murder, but convicted of manslaughter. He pleaded guilty to the fraud charge on the first day of the trial ([3]). The appellant was sentenced to 15 years and six months, and the manslaughter offence was declared a serious violence offence and a domestic violence offence under s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (‘the Act’).

Issues: Whether the sentencing judge erred in retrospectively applying s 9(10A) of the Act or whether the sentence was otherwise manifestly excessive.

Decision and Reasoning: The appellant argued that s 9(10A) of the Act, which has the effect that a context of domestic violence is an aggravating factor in sentencing, should not apply because it should not have retrospective operation ([24]). The Court held that the section is a procedural provision and does not attract the common law presumption against retrospectivity. Therefore, the section applies to all sentencing from its commencement ([43]).

Justice Mullins, Fraser and Morrison JJA agreeing, stated that the sentence was not manifestly excessive, taking into account the context of domestic violence, the appellant’s deceit in impersonating the deceased and failing to disclose the whereabouts of the deceased’s body, his lack of plea of guilty, his lack of remorse and the unchallenged finding that the deceased died a violent death ([53]).

R v Maxwell [2018] QCA 17 (27 February 2018) – Queensland Court of Appeal

‘Following, harassing and monitoring’ – ‘Post-separation violence’ – ‘Revenge porn’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse’

Charges: Stalking x 1; Attempting to pervert the course of justice x 1.

Appeal type: Appeal against conviction and sentence.

Facts: The applicant and the complainant had been in a relationship for 18 months. There were 2 instances of violence ([2]). After the relationship ended, the applicant followed the complainant and sent her a total of 77 text messages, 5 emails and phone calls by which the complainant felt threatened and harassed ([7]). After the complainant made a complaint to the police, the applicant sent further emails to her threatening to release recordings and videos of them having sex if she did not withdraw the charge ([9]).

The appellant was sentenced to a head sentence of 18 months’ imprisonment, with a parole release date after 3 months ([12]).

Issues: Whether the conviction should be set aside and whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

In relation to the appeal against conviction, the appellant had argued that he was not provided with proper legal advice ([30]). Justice Morrison (Sofronoff P and Phillip McMurdo JA agreeing) dismissed this argument as having ‘no merit’ ([44]).

In relation to the appeal against sentence, the appellant relied on the impact of the sentence on his ability to obtain licences to work in the financial services industry ([45]). Justice Morrison dismissed this argument because it could only be relevant to whether a conviction is recorded ([48]).

R v Stephens [2017] QCA 173 (15 August 2017) – Queensland Court of Appeal

‘Attempted murder’ – ‘Children present’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Firearms’ – ‘Moral culpability’ – ‘People with mental illness’ – ‘Post-separation violence’ – ‘Stalking’ – ‘Strangulation’

Charges: Attempted murder x 1.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant and complainant were separated ([6]). After they separated, the complainant obtained a domestic violence order against the applicant because he had sent her text messages threatening to kill her. On the date of the offence, the applicant followed the complainant and her children to a shopping centre, armed with a rifle and 13 rounds of ammunition ([7]). He shot her in the temple at close range, then attempted to strangle her. The four children in the car saw every detail of what had occurred ([8]-[9]). He was sentenced to 15 years’ imprisonment.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

Justice Douglas, Holmes CJ and Gotterson J agreeing, found that the sentencing judge properly weighed the relevant factors. The applicant’s mental health disorders did not bear on his moral culpability ([43]). This was a ‘horrific example of the crime of attempted murder’. The victim continues to suffer severely. There was a strong need for protection and general and specific deterrence. The appropriate range would have been 13 to 17 years ([44]).

SCT v Director of Public Prosecutions (Qld) [2017] QCA 31 (13 June 2017) – Queensland Court of Appeal

‘Bail’ – ‘Choke hold’ – ‘Contravention of domestic violence order’ – ‘Strangulation’

Charges: Contravening domestic violence order x 2; Choking, suffocation or strangulation in a domestic relationship x 1.

Case type: Renewed application for bail.

Facts: The applicant and complainant had been in a domestic relationship. A domestic violence order had been granted ([7]). The complainant made the following allegations: the applicant went to the complainant’s house and punched her in the leg ([7]); he threw a pillow at the complainant; and put her in a choke hold ([8]). Bail was originally refused ([9]). Since then, new evidence of a demonstrated that a trial in the District Court would be more than a year away ([10]).

Issues: Whether the evidence of a new trial date justified a grant of bail.

Decision and Reasoning: Bail was granted with conditions that he not have contact with the complainant, that he reside at a specified address, and that he report to the police daily.

Under s 16(3)(g) Bail Act 1980 (Qld), for which the new offence of strangulation is a ‘relevant offence’, the onus was on the applicant to show cause why bail should be granted ([13]). The Court explained that on one hand, there was a real risk that he would reoffend because the applicant and complainant lived in the same town, and they may contact each other ([14]). On the other hand, he had accommodation with family members available, an offer of employment ([15]), and there was a real prospect that he would spend longer on remand than he would serve in custody ([16]). On balance, the risk of reoffending was not unacceptable (s 16).

Ackland v Director of Public Prosecutions (Qld) [2017] QCA 75 (28 April 2017) – Queensland Court of Appeal

‘Assault’ – ‘Bail’ – ‘Risk of re-offending’

Charges: 1 x Assault occasioning bodily harm; 1 x Choking.

Appeal type: Defendant’s appeal against denial of bail application.

Facts: The victim alleged that, during an argument, the appellant: threatened to knock her out; grabbed her by the throat; punched her in the face; and, when she indicated that she was going to call the police, destroyed photographs in the house (see [8]-[10]).

The trial judge refused bail on the basis that:

•

12 months earlier, the appellant had committed a breach of a domestic violence order against a former girlfriend (see [12]);

•

the Crown case appeared to be strong, by evidence of photographs of cuts and abrasions (see [14]); and

•

there was a danger to female victims in such domestic violence situations (see [18]).

His Honour referred to, but did not place weight on, a handwritten note from the victim indicating that she wanted to withdraw the charges (see [15]-[16]).

Issues: Whether the trial judge erred in denying bail to the defendant.

Decision and Reasoning: The appeal was dismissed.

Atkinson J, with whom Morrison JA and Douglas J agreed, considered that the trial judge’s discretion had not been improperly exercised (see [27]). The appellant had submitted that the trial judge based the risk of re-offending on an irrelevant ground, namely a generalised risk to victims of repeated offences. However, Atkinson J considered that the trial judge properly considered the particular risk to the victim, evidenced by two assaults being committed 10 hours apart, the victim’s concern, and the previous breach of domestic violence order (see [28]-[29])

At the time of the bail application, amendments to the Bail Act which reversed the presumption of bail for domestic violence offences had not come into effect (see [30]). By the time of the appeal against bail, the amendments had come into effect. Giving effect to the reversed onus, Atkinson J considered that the appellant had not satisfied the court that he did not represent an unacceptable risk of re-offending (particularly against the victim) while on bail (see [35]).

R v KAP [2016] QCA 349 (23 December 2016) – Queensland Court of Appeal

‘Expert evidence’ – ‘Rape’ – ‘Visible injury’

Charges: Rape x 1.

Appeal type: Appeal against conviction.

Facts: The accused and the complainant were married, but separated. The accused went to the home of the deceased, and sexual intercourse took place. The complainant said that the accused had held her down and threatened her, but the accused said that the intercourse was consensual ([1]).

Issues: Whether the conviction should be overturned on the grounds that expert evidence about the frequency of visible injury in sexual assault cases should not have been adduced, and the jury should have been given directions as to how to use that evidence ([2]-[3]).

Decision and Reasoning: The expert witness gave evidence that, according to cohort studies and his own personal experience, the absence of visible injury to genitalia is not determinative of whether sexual assault has occurred ([22]-[29]). Morrison JA (with whom Philip McMurdo JA and Mullins J agreed) held that the evidence:

•

was relevant ([31]-[32]);

•

was based on admissible data ([33]-[34]);

•

fell within the scope of expert evidence because injury arising out of sexual assault is accepted as being part “of a body of knowledge or experience” which ordinary lay people would not have (citing Osland v The Queen (1998) 197 CLR 316 ([35]-[37]);

•

was necessary to dispel a common fallacy that physical injury normally follows rape ([41]).

ZXA v Commissioner of Police [2016] QCA 295 (15 November 2016) – Queensland Court of Appeal

‘Domestic violence protection order’ – ‘Rights of appeal’

Appeal Type: Appeal against domestic violence protection order.

Facts: The applicant was named as the respondent in a domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). He filed an appeal to the District Court under s 164 of the Act. The appeal was dismissed. The applicant then attended the Supreme Court registry to file an application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld). Despite being told that there was no right of appeal, the applicant persisted until the registry acceded to his demands.

Issue/s: Whether the Court of Appeal had jurisdiction under s 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) to hear the appeal?

Decision and Reasoning: The appeal was dismissed. Under s 169(2) of the Act, the decision from which the applicant seeks leave to appeal ‘shall be final and conclusive’. While s 118(3) of the District Court of Queensland Act allows a party to appeal, it does not apply to a decision of the District Court in its appellate jurisdiction under s 169(1): see CAO v HAT & Ors [2014] QCA 61 [25] – [27]. The President concluded:

‘The scheme under the Act contemplates that domestic violence protection orders can be made by a wide variety of courts with a right of appeal from such orders…The scheme does, however, clearly contemplate only one level of appeal. The plain words of s 169(2) that such an appeal is “final and conclusive” indicate that the legislature intended that there be no further appeal. The applicant has exhausted his single right of appeal from the Magistrates Court to the District Court. He can, of course, apply to vary the domestic violence protection order under s 86 of the Act, including to vary the duration of the order: see s 86(3)(b) of the Act’.

R v Williams [2015] QCA 276 (18 December 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Separation’

Charge/s: Attempted murder, burglary.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant had separated from his wife, and had recently found out that she was in a new relationship. He broke into her home, stabbed her while she was sleeping on her back next to her two year old daughter and then ran off. She immediately awoke to find a knife sticking out of her chest, which she removed, at which point she collapsed. He was sentenced to 15 years imprisonment and declared to be a serious violent offender.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that the trend of sentences for attempted murder cases shows that the appropriate range is 10 to 17 years, and that 15 years is excessive compared with analogous cases. This argument was rejected. Bond J (with whom Jackson J and Philip McMurdo JA agreed) at [17]-[30] provided a useful summary of previous attempted murder cases involving domestic violence. The Court acknowledged that the offence of attempted murder attracts a wide variety of punishments. However, consistent with the approach articulated by the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where comparable sentences can provide assistance, but do not set a range of permissible sentences, the Court held that the original sentence was within the discretion open to the trial judge.

R v Johnson [2015] QCA 270 (11 December 2015) – Queensland Court of Appeal

‘Consent’ – ‘Rape’ – ‘Sexual and reproductive abuse’

Charge/s: Rape.

Appeal Type: Appeal against conviction.

Facts: The appellant met the complainant on Facebook and was in a relationship with her for seven weeks. During sexual intercourse, the complainant withdrew her consent and alleged she was then raped by the appellant. The appellant was convicted of rape following a trial.

Issue/s: One issue concerned whether the verdict was unreasonable and unsupportable having regard to the evidence.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Philippides JA agreed) held that it was open to the jury to be satisfied beyond reasonable doubt that by the complainant saying ‘no’ and ‘stop’ multiple times, he was not under any mistake as to whether she had consented to sex.

R v Leedie [2015] QCA 216 (6 November 2015) – Queensland Court of Appeal

‘Deprivation of liberty’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Pre-recorded evidence’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Support person’ – ‘Torture’

Charge/s: Rape, deprivation of liberty, torture.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of eight offences including rape, deprivation of liberty and torture. The appellant had been in an ‘off and on’ romantic relationship with the complainant. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of the complainant or other parties. There was no history of violence in the relationship. The offending arose after the appellant asked the complainant to visit his house to have sex. Consensual sex then occurred. However, following the appellant seeing a message from his brother on the complainant’s phone, he became angry, proceeded to become extremely violent, and raped the complainant multiple times across the night. He did not let her out of the house, and tortured her. The complainant was deemed a ‘special witness’, and gave pre-recorded evidence two days before trial, with her mother present as a support person (pursuant to s 21AK of the Evidence Act 1977). Her mother was made aware by the judge during the recording that she was not to have any participation in the proceedings other than as a support person. The mother then made comments to the complainant which reminded her about the details of one of the rape offences. It was accepted at [55] that her mother’s conduct was ‘inappropriate’. However, the trial judge, in response to defence counsel’s application for a mistrial, made detailed warnings to the jury about the caution they needed to apply when considering the complainant’s evidence.

Issue/s: One ground of appeal concerned whether the trial judge erred by failing to discharge the jury after the complainant’s mother suggested to the complainant what she might say in her evidence.

Decision and Reasoning: The appeal was dismissed. The Court held that these directions were sufficient to warn the jury that the reliability of the complainant’s evidence may have been undermined by her mother’s reminder of the details of the appellant’s offending. Furthermore, at trial, the judge offered to order a further pre-recording of the complainant’s evidence, which was declined by the appellant.

R v Andres [2015] QCA 167 (11 September 2015) – Queensland Court of Appeal

‘Circumstantial evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Whether guilty verdict unreasonable’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of the murder of his wife. His version of events included, (among other things) the contention that the deceased had injured him with a fork and he was placed in fear of his life. (See at [4]-[113]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s: The appellant admitted that he had caused his wife’s death, but maintained that he did not have the requisite intention to prove murder. As such, the question for the Court was whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. More specifically, the issue was whether the accused had the requisite intention to prove murder. Also at issue was whether he had killed his wife by accident or in self-defence.

Decision and Reasoning:

The appeal was dismissed, with the Court finding that a guilty verdict was open to the jury on the evidence. Boddice J, (with whom Morrison JA and Carmody J agreed), found that the only evidence to support the conclusion that the death occurred by accident or in self-defence was the appellant’s own evidence, which lacked probative force. This was because, among other things, the appellant admitted he had deliberately lied and changed his story, and he had dissolved the deceased’s body in acid, which made it difficult to determine the cause of death. While the case was wholly circumstantial, it was noted that intent can be proved by inference, by considering the probative value of the evidence as a whole.

R v Jones [2015] QCA 161 (1 September 2015) – Queensland Court of Appeal

‘Evidence’ – ‘Expert testimony’ – ‘Killing for preservation in an abusive relationship’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for the murder of his mother. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim or other parties. The issues at trial related substantially to self-defence and provocation. Evidence of the history of the relationship was admitted in the context of the defence under s 304B of the Queensland Criminal Code of killing in an abusive domestic relationship (See further at [3]-[13]).

Issue/s: Whether the trial judge erred by not admitting expert psychiatric evidence.

Decision and Reasoning: The appeal was dismissed. North J (with whom Holmes JA and Henry J agreed) held firstly that this evidence was not admissible under s 132B of the Evidence Act 1977. It was not relationship evidence. The Court also held that the matters that the psychiatrist spoke of were not complex in a scientific sense, and the jury, properly instructed, were able to understand them without needing to hear the expert evidence itself. The psychiatrist did not identify that the appellant was suffering from any recognised psychiatric illness. Rather, he only spoke generally that the appellant had developed coping strategies in response to his mother’s violent and difficult behaviour. The jury, in applying common sense, would have been able to reach this conclusion themselves. North J, comparing the ‘battered wife defence’, noted that there is no ‘battered child defence’ in law. That is, there is no defence where, ‘insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent’ (See at [19]).

R v Pearson [2015] QCA 157 (28 August 2015) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his wife (See further at [2]-[5]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife. The issues at trial concerned whether he had the requisite intent to kill or do grievous bodily harm, and whether the defence of provocation arose.

Issue/s: One issue on appeal was whether the trial judge misdirected the jury in regards to the relevance of evidence of prior acts of domestic violence and discreditable conduct. In particular, the appellant submitted that the jury were misdirected about how they could use the evidence when deciding whether the appellant had the requisite intent for murder.

Decision and Reasoning: The appeal was dismissed. At trial, the jury was directed to the effect that the evidence was relevant to explain the nature and animosity of the relationship between the appellant and the deceased. They were specifically directed that if they were to use that evidence to assist in determining the appellant’s state of mind at the time of the offence, they must be satisfied beyond reasonable doubt that the past acts occurred. Holmes JA (Morrison JA and Henry J agreeing) held that s 132B of the Evidence Act 1977 can be used to show a particular propensity of the accused to commit acts of a similar nature, as well for specific issues like intent. Her Honour, applying the approach of the High Court in Roach v The Queen [2011] HCA 12, noted that these two uses are distinct. In this case, the domestic violence evidence was only relevant as relationship evidence to prove intent. Propensity was not relevant because it was not in dispute that the appellant had caused the death of his wife. The jury were directed to this effect. A general propensity warning was not needed for the same reasons.

R v Piper [2015] QCA 129 (17 July 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Breach of domestic violence order’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm with intent, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant’s wife attended a hotel with a male friend. He falsely believed his wife to be in a romantic relationship with the friend. In an unprovoked attack, he stabbed the friend forcefully multiple times. The victim sustained six stab wounds, including one to his neck. The victim suffers lasting psychological difficulties as a result of the attack. There was a domestic violence order in place which prevented the applicant from coming within five metres of his wife. The attack breached this order, which became an aggravating feature in sentencing. He had no criminal history. He was sentenced to seven years’ imprisonment, becoming eligible for parole after three years.

Issue/s: One issue concerned whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was granted. The offending was very serious. It was ‘a sustained, severe and premeditated attack, whilst armed with a knife, on a victim who had done nothing by way of provocation’ (See at [36]). It was committed in the context of a domestic violence order being in place. As such, the head sentence, whilst at the upper end of the scale, was within range, taking into account his lack of criminal history and plea of guilty. However, the Court concluded that the parole eligibility date should be brought forward. The applicant’s guilty plea, while late, ensured that witnesses did not have to give evidence, which was particularly important for the victim. The parole eligibility date was close to the ‘half-way mark’ in the sentence. This did not reflect the significance of his guilty plea, remorse and cooperation and lack of criminal history. As such, the parole eligibility date was changed and set at the one-third mark in the sentence.

R v Wallace [2015] QCA 62 (21 April 2015) – Queensland Court of Appeal

‘Emotional abuse’ – ‘Following harassing, monitoring’ – ‘Fraud’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’ – ‘Where the offender is also a victim’

Charge/s: Six counts of fraud.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty at trial to six counts of fraud. See at [3]-[11]. It is unclear whether at the time of the offences, there was a current or lapsed protection order in place against the applicant’s ex-husband in favour of the applicant or other parties.

Issue/s: Whether the applicant could adduce fresh evidence not led at the original sentencing hearing.

Decision and Reasoning: The fresh evidence involved long term domestic violence that the applicant suffered from her ex-husband, including controlling behaviour such as taking the applicant’s phone and keys to prevent her from seeking help, threatening her children, stealing money from her business, and severe physical violence. It also included evidence from a psychiatrist detailing the effect of the abuse on her, to the extent that she did not fully understand the repercussions of her offending. This was found to be consistent with what has come to be known as the ‘battered person’s syndrome’. The appeal was allowed and the evidence was admitted. The head sentence was reduced by one year.

McMurdo P, (with whom Gotterson JA and Douglas J agreed) noted that lawyers acting for clients charged with criminal offences who claim to be the victim of domestic violence should take such claims very seriously to determine the relevance to their client’s alleged offending. They should then put such evidence before the primary court either as a defence, or in sentence mitigation.

See in particular the following remarks of McMurdo P at [37] -

'… The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm (a psychiatrist) explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. '

R v Davidson [2014] QCA 348 (19 December 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim credibility’

Charge/s: Assault occasioning bodily harm, grievous bodily harm.

Appeal Type: Appeal against conviction and sentence.

Facts: The offending involved an incident where the appellant asked the complainant to perform a sexual act on his male friend. The appellant also engaged in sexual activity with the friend. The case at trial was based on the complainant’s version of events, which included that the appellant kicked and punched the complainant (the appellant’s partner) for a long period. There was a history of domestic violence in the relationship. A domestic violence order was made some six years prior. The appellant had a long criminal history of similar offences, including a breach of a domestic violence order. However, there was no associated breach of a domestic violence order in this matter. The appellant was sentenced to five years imprisonment with parole eligibility set at 2.5 years.

Issue/s: Whether the failure to call new evidence from witnesses who challenged the complainant’s credibility established a miscarriage of justice.

Decision and Reasoning: The appeal was dismissed. The appellant contended specifically that the failure to call a particular witness established a miscarriage of justice and noted that his defence counsel did not explore the detail of the evidence in cross-examination. The Court rejected that argument – the failure of counsel to adduce this new evidence was justifiable as a strategic decision in the trial context to not risk other unfavourable evidence being admitted. The appeal against sentence was also dismissed.

R v Aplin [2014] QCA 332 (16 December 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘General deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Grievous Bodily Harm.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal and Torres Strait Islander man, caused catastrophic harm to the 21 year old complainant, with whom he had recently commenced a relationship. She was in a ‘vegetative state’ at the time of trial. He made full admissions to police. He sought to have evidence of these admissions excluded, which was refused. He then pleaded guilty. The applicant had a long history of domestic violence including multiple breaches of domestic violence orders. The sentencing judge mentioned the need to have regard to this history, as well as the extent of the injuries and the need for deterrence (see at [12]). He was sentenced to 9 years’ imprisonment and a ‘serious violent offence’ declaration was made.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The applicant submitted that various mitigating factors applied including that no weapon was involved, there was no premeditation, he attempted to administer aid, requested that an ambulance be called and there was a degree of provocation. He also submitted that the sentencing judge was in error in using a 10 year head sentence as a starting point. Fraser JA (with whom McMurdo P and Morrison JA agreed) held that there was nothing to indicate the primary judge overlooked these factors or the applicant’s disadvantaged background. Indeed, given the ‘seriousness of the offence, the catastrophic consequences for the complainant, and the applicant’s bad history of violent offending in broadly similar circumstances’ (See at [16]), it was open to the primary judge to attach relatively light weight to the mitigating factors. Furthermore, the trial judge was correct in using a previous decision with a head sentence of 10 years for ‘guidance’. While the Court acknowledged that this sentence was severe given the maximum penalty, the guilty plea, the offender’s age and other mitigating circumstances, it was justified for this ‘extreme example of domestic violence by a repeat offender’,([26]) where general deterrence and community protection were very relevant.

R v Warradoo [2014] QCA 299 (25 November 2014) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Hearsay’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his girlfriend. (See further at [3]-[7]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim. At trial, evidence relating to conversations with the deceased’s niece and mother which detailed instances of prior violence committed by the appellant was admitted. No warning was given by the trial judge as to the potential unreliability of this evidence as hearsay.

Issue/s: Whether the trial judge erred by not giving adequate warnings with respect to evidence admitted under section 93B of the Evidence Act 1977.

Decision and Reasoning: The appeal was dismissed. Holmes JA stated (at [8]) that section 93B operates to, ‘(render) the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable.’ It was held that a direction from the trial judge about the unreliability of the evidence as hearsay would not have been particularly helpful, and may have even been disadvantageous to the appellant. Also, the evidence was admissible under s 132B of the Evidence Act 1977 as evidence of the history of a domestic relationship.

R v RAP [2014] QCA 228 (11 September 2014) – Queensland Court of Appeal

‘Damaging property’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charge/s: Unlawful assault causing bodily harm, unlawfully damaging property.

Appeal Type: Appeal against sentence.

Facts: The appellant pleaded guilty to unlawfully assaulting his wife, causing her bodily harm and unlawfully damaging property. The appellant had a relevant criminal history involving a breach of a domestic violence order. However, this was effectively ignored by the sentencing judge. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of his wife. In mitigation, the sentencing judge considered a psychiatrist’s report indicating that at the time of the incident, the appellant was likely suffering from, ‘a major depressive episode and, probably, a form of alcohol dependence’. There was also a report from a psychologist who had treated the appellant before the offences and diagnosed him with, ‘an acute, moderate to severe adjustment disorder with mixed anxiety depressed moods at that time.’ A later review by that psychologist indicated he suffered a ‘chronic and mild adjustment disorder with anxiety’ and a year later ‘a mild borderline adjustment disorder’ was diagnosed. He was sentenced for the assault charge to two years imprisonment, suspended after eight months with an operational period of 2.5 years. He was sentenced to two months imprisonment for the property damage charge to be served concurrently.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The couple had previously separated, and the incident arose when the appellant returned to the matrimonial home. The complainant’s injuries were significant and she was in fear of her life during the attack. Wilson J (with whom McMurdo P and Fraser JA agreed) at [39] – [46] provided a useful summary of comparable cases. The Court held that a serious assault in the domestic context warrants imprisonment for two years or more. The suspension imposed was a correct application of the mitigating factors, and the serious nature of the violence.

R v Foster [2014] QCA 226 (9 September 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Following, harassing, monitoring’ – ‘Preliminary complaint’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Victim disclosure and consent’

Charge/s: Rape, Assault occasioning bodily harm, deprivation of liberty.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted at trial of two counts of the rape of his partner, after he was found to have penetrated the complainant with a hairbrush, an aerosol can and a water bottle. He pleaded guilty to other charges including assault occasioning bodily harm and deprivation of liberty. There was no domestic violence order in place.

Issue/s: Whether evidence of the complainant’s response in a state of distress, to the question of ‘Had you been raped?’ amounted to an admissible preliminary complaint of rape. The complainant had not directly answered the question but ‘looked sad’ and ‘slumped her shoulders, to look as if she was about to burst into tears and to look beaten’. (See at [33]).

Decision and Reasoning: The Court found that this amounted to a complaint, within the meaning of Section 4A of the Criminal Law (Sexual Offences) Act 1978. Importantly, Gotterson JA (with whom McMurdo P Morrison JA agreed) noted that an admissible complaint need not require a verbal response. In particular, ‘A meaningful response may be signalled by conduct other than speech. That conduct may include the absence of a verbal rejection of the proposition’. However, Gotterson JA noted that the acceptance could have been clearer, and this was a ‘borderline’ example of a complaint. Furthermore, it is not necessary for a preliminary complaint of rape to refer to any specific incidence of penetration. Simply stating, ‘I was raped’ is sufficient to amount to a preliminary complaint.

R v Reed [2014] QCA 207 (26 August 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Purpose of evidence’ – ‘Relationship evidence’

Charges: Assault occasioning bodily harm, murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the assault occasioning bodily harm and murder of his partner’s 16 month old child. See further at [6]-[17].

Issue: Whether the trial judge erred in admitting evidence of prior facial grazing injuries suffered by the child.

Decision and Reasoning: Henry J (with whom Gotterson JA and McMurdo P agreed) firstly held that this evidence was not inadmissible purely because of a possible innocent explanation for the injuries. His Honour considered all the non-fatal injuries on the child in their totality, and found that the probability that they occurred accidentally became too remote. The evidence was capable of supporting an inference (in combination with the other evidence) that the non-fatal injuries were the result of deliberate violence by the appellant. This evidence, of itself, was not indispensable to a finding of guilt – it assisted as ‘strands of a cable rather than as indispensable links in a chain’ (See at [39]). The evidence was also relevant to the proof of the charges as relationship evidence pursuant to 132B of the Evidence Act 1977. The trial judge correctly found that injuries can be probative of the history of a domestic relationship. It also potentially showed a propensity of the appellant to commit similar violence. However, the trial judge did not rule on this and in fact gave a warning against propensity reasoning. Notwithstanding, the trial judge did make an error of law in failing to sufficiently instruct the jury about the purpose of the evidence of the uncharged injuries, applying the High Court decision in Roach v The Queen [2011] HCA 12. The trial judge did tell the jury that the evidence could be used to show that the nature of the relationship was violent, but he did not go further to explain that the purpose of putting this history of violence before the jury was to provide an ‘informed context’ (See at [69] – [70]) for the jury’s consideration of the charges. Notwithstanding, the appeal was dismissed pursuant to the proviso.

R v HBL [2014] QCA 270 (24 October 2014) – Queensland Court of Appeal

‘Abduction’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Family law orders’ – ‘Mitigating factors’ – ‘Sentencing’

Charge/s: Abduction, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was in a long-term, intermittent relationship and had one child. His partner sought and obtained a domestic violence order (DVO) in 2011. In 2012, an order in the Federal Magistrates’ Court was made that the child was to live with the mother. Limited contact was allowed with the mother’s consent. The mother left the child at a friend’s house, whereupon the applicant arrived unannounced and took the child, drove away, and held the child for a period of time, in breach of the DVO. He made repeated calls stating he would not return the child if the child was to be handed back to the mother or her friend. The applicant had a long criminal history of over fourteen court appearances, including a previous breach of a child protection order (albeit towards the lower end of seriousness). The applicant pleaded guilty to the abduction and breach offences and was sentenced in the District Court to 4 years’ imprisonment for abduction. He was convicted but not further punished for the breach. The primary judge implicitly accepted the Crown’s submission that this conduct was in the worst category of offending.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. While the applicant had a long criminal history, Fraser JA (with whom Mullins J and Gotterson JA agreed), compared analogous decisions and highlighted factors which made them distinguishable. His Honour noted that the child was not unrelated or unknown, there was no sexual motivation and the taking was non-violent. As such, the Court held that this was not within the worst category of offending. Notwithstanding, the Court noted that such conduct (including the fact that the appellant was motivated to be with his son and breaching court orders) cannot be condoned and deterrence is important. As such, a custodial sentence was imposed but was reduced to 18 months’ imprisonment with immediate parole eligibility.

R v Francis [2014] QCA 258 (14 October 2014) – Queensland Court of Appeal

‘Arson’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Sentencing’ – ‘Separation’

Charge/s: Arson.

Appeal Type: Appeal against conviction and sentence.

Facts: The arson was targeted at the appellant’s ex-wife’s new partner’s mother’s car. The offence constituted a breach of a domestic violence order (See further at [3]-[18]).

Issue/s: Appeal against conviction: Whether the verdict was unreasonable and not supported by the evidence, and whether the appellant could adduce further evidence not led at trial.

Appeal against sentence: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. McMurdo P noted that while the case was circumstantial, it was strong, and a guilty verdict was open to the jury. The application to adduce further evidence was also dismissed. The court held that while an affidavit from the appellant’s former partner was somewhat inconsistent with her evidence at trial, there was no significant possibility that the jury would have acquitted him on this basis. However, the appeal against sentence was allowed, reducing the head sentence from 4.5 to 4 years. Defence counsel submitted that the sentence was excessive for arson of a car rather than a house, while the prosecution submitted that it was a flagrant breach of a domestic violence order and general deterrence was necessary for an arson committed as a jealous rage due to a relationship breakdown. McMurdo P held that the sentence was manifestly excessive. The trial judge did not take into account pre-sentence custody, and the appellant only had a minor criminal history prior to this offending.

R v Murray [2014] QCA 160 (18 July 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘Damaging property’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Recidivism’ – ‘Sentencing’ – ‘Victim’ – ‘Weapons’

Charge/s: Grievous bodily harm.

Appeal Type: Application for an extension of time to appeal against conviction.

Facts: The applicant, an aboriginal man with a dysfunctional background, pleaded guilty to the grievous bodily harm of his girlfriend. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. He ripped off a door handle with which he struck her on the head, then punched her and struck her with a frying pan, causing severe injuries.

Issue/s: Whether an extension of time should be granted on the basis that the applicant only pleaded guilty due to the strong urging of his lawyers, and that he was denied the right to present his defence.

Decision and Reasoning: The application was refused - the applicant was an adult, of sound mind who understood the charge and entered a guilty plea after obtaining legal advice. An application for leave to appeal against sentence was also refused. McMurdo P (Fraser JA and Morrison JA agreeing) held that notwithstanding that he told the complainant to go to hospital, he had failed to demonstrate compassion or insight into the injury that he had caused. He had a substantial history of domestic violence and this recidivism made the protection of future intimate partners important. This was a serious example of grievous bodily harm in the context of domestic violence. General deterrence and denunciation were key considerations. McMurdo P described his girlfriend as a ‘reluctant complainant’. However, this was not a mitigating factor. The only mitigating factors were his guilty plea and dysfunctional background.

R v Seijbel-Chocmingkwan [2014] QCA 119 (27 May 2014) – Queensland Court of Appeal

‘Attempted murder’ – ‘Attempted strangulation’ – ‘Dangerous operation of motor vehicle’ – ‘Denunciation’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Serious violent offender’

Charge/s: Attempted murder, dangerous operation of a motor vehicle.

Appeal Type: Appeal against sentence.

Facts: While on parole for assault offences committed against her daughter, the applicant drove into her former husband’s car twice. She then stabbed her husband’s new partner in the shoulder and attempted to strangle her. There was no domestic violence order in place. She pleaded guilty to attempted murder and dangerous operation of a motor vehicle, for which she was sentenced to ten years’ and 12 months’ imprisonment respectively.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Martin J agreed) at [41] – [79] provided a useful summary of past Court of Appeal authority regarding sentencing of attempted murder offences which have an element of domestic violence. The Court considered factors such as premeditation, cooperation with authorities, remorse, the gravity of the attack and prior convictions. (See full list at [79]). The applicant was also suffering from a mental disorder, namely an ‘adjustment disorder with anxious and depressed mood’. While this was a mitigating factor, the Court held that the original sentence did adequately recognise this and other mitigating features such as her efforts at rehabilitation by enrolling in study and other courses, which were correctly balanced with the need for denunciation and general deterrence.

R v Martin [2014] QCA 80 (14 April 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Consistency of sentence with other orders’ – ‘Costs’ – ‘Following, harassing, monitoring’ – ‘Stalking’ – ‘Systems abuse’ – ‘Using carriage service’

Charge/s: 41 offences, including stalking, 26 counts of breaches of domestic violence orders, two counts of assault occasioning bodily harm, five counts of using a carriage service to make a threat to kill and six counts of using a carriage service to menace or harass.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty in the Magistrates’ Court to all offences. The stalking was committed against the applicant’s ex-partner. A head sentence of two years imprisonment was imposed in the Magistrates’ Court, with all sentences to be served concurrently. The applicant was also placed on a domestic violence order in favour of his ex-partner for 5 years. The Magistrate made adverse findings in relation to the applicant’s offending, his lack of remorse and the real risk of him re-offending. Mitigating factors included pleas of guilty and completion of a domestic abuse program while in custody. His parole release date was set after he had served one third of the head sentence, taking into account pre-sentence custody.

Issue/s: Whether the remaining period on parole should be substituted with a suspended sentence, due to the comparative administrative ease of a suspended sentence in obtaining permission to leave the state.

Decision and Reasoning: Leave to appeal was refused. A previous appeal to the District Court was struck out due to the applicant’s uncooperative nature, and the many opportunities that were given to him through adjournments to allow him to appear personally in Court, as well as the primary judge’s finding of fact that he had misled the Court. The Court found that the primary judge acted appropriately.

R v MBY [2014] QCA 17 (18 February 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, maintaining a sexual relationship with a child under 16.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal man committed the offences against his daughter. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the applicant in favour of the victim or other parties. (See further at [6]-[20]).

Issue/s: Whether the primary judge failed to give appropriate weight to circumstances of deprivation in his upbringing, including the social and economic disadvantage associated with his Aboriginality and the physical, sexual and emotional abuse that he had suffered as a child. Another issue was whether the primary judge failed to have regard to the applicant’s rehabilitative prospects.

Decision and Reasoning: In dismissing the appeal, Morrison JA (Muir JA and Daubney J agreeing) discussed the relevance of the applicant’s Aboriginality in sentencing. See in particular at [60]-[73] where his Honour provides a detailed summary of relevant authority including the High Court decision of Munda v Western Australia [2013] HCA 38. Essentially, his Honour accepted that social, economic and other disadvantages (including alcohol and drug abuse) which may be related to an offender’s Aboriginality, should be taken into account as a mitigating factor in sentencing. Indeed, there is authority to suggest that when an Aboriginal offender is being sentenced, the Court should, ‘sentence (the offender) as leniently as the circumstances of his offence admitted’. (See R v Bell [1994] QCA 220). However, this cannot undermine individualised justice. That is, the deprived background of an Aboriginal and Torres Strait Islander offender may be given appropriate weight in sentence mitigation, but it cannot be given undue primacy. It cannot result in a punishment being imposed that does not reflect the gravity of the offending, or which does not pay sufficient regard to considerations such as specific and general deterrence, which are particularly important in domestic violence cases. The second ground of appeal, that the applicant’s rehabilitative prospects were not given enough weight was also dismissed.

R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) – Queensland Court of Appeal

‘Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay’

Charge/s: Grievous bodily harm.

Appeal Type: Appeal against a permanent stay of proceedings.

Facts: This decision was not directly related to domestic violence. However, it is relevant to situations where the Court is dealing with a breach of a domestic violence order and another criminal offence concurrently. The respondent was originally charged with public nuisance, which was dealt with summarily. However, following a formal statement made by the complainant to police and a medical opinion received, he was charged with grievous bodily harm (GBH). At trial, an application was made for a permanent stay on the basis of Section 16 of the Queensland Criminal Code, which provides that a person cannot be punished twice for the same act or omission. The application was granted, with the primary judge holding that the act which formed the basis of the GBH charge was the same act which formed the basis of the public nuisance charge.

Issue/s: Whether the trial judge was correct in granting the permanent stay based on the rule against double punishment.

Decision and Reasoning: The appeal was dismissed, with the Court applying the approach previously articulated in R v Gordon where Hanger CJ stated - “Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed.” Hanger CJ held that a punishable act of being in charge of a motor vehicle while under the influence of a substance was not the same as the punishable act of dangerous driving causing GBH with which the offender in that case was subsequently charged. In the present matter, the Court held that the punishable acts for which the respondent was convicted in the Magistrates Court included punches which landed on the complainant, causing harm. It therefore followed that s 16 would be violated if the respondent was to be punished a second time for those acts.

Prima facie, the same test would apply when considering whether a breach of a DVO constitutes the same act for which another criminal charge is based. However, it should be noted that there is uncertainty about the application of Section 138 of the Domestic and Family Violence Protection Act 2012 (Qld) in this context, particularly as to whether Section 138 allows double punishment. For further information, see pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book, which considers various District and Magistrates’ Court decisions and the summary of R v MKW [2014] QDC 300 (18 June 2014).

R v Bartram [2013] QCA 361 (6 December 2013) – Queensland Court of Appeal

‘Defence of dwelling’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Unlawful wounding’ – ‘Where the offender is also a victim’

Charge/s: Unlawful wounding.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for unlawful wounding. The offence was committed in the following circumstances: the appellant had obtained a domestic violence order against the complainant; the complainant had previously been convicted for breaches of that order; according to evidence at trial, the complainant kicked down a door in breach of the DVO and, on the appellant’s evidence, the complainant had threatened violence towards her on the previous evening. The jury was directed about self-defence, but was not directed about the possibility of the ‘defence of a dwelling defence’ under s 267 of the Queensland Criminal Code.

Issue/s: Whether the appellant was denied the possibility of an acquittal under 267 of the Queensland Criminal Code.

Decision and Reasoning: The appeal was upheld – Muir JA (with whom Gotterson JA and Daubney J agreed) held that there was ‘ample evidence’ that the complainant unlawfully entered and remained in the dwelling, which could support the elements of the defence. The offending occurred under the house, but his Honour held that the definition of ‘dwelling’ in s 1 of the Code was broad enough to encompass underneath the house. As such, a retrial was ordered.

R v Brennan [2013] QCA 316 (25 October 2013) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Murder (two counts).

Appeal Type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The appellant was convicted of murdering his estranged wife and her daughter in their home. Prior to the killings, the appellant made threats to his wife and to witnesses. These threats occurred in person and over the phone, resulting in a domestic violence order being served and two charges of using a carriage service to make threats. Several witnesses testified that the appellant made threatening remarks to his wife at the hearing for these charges. He was sentenced to life imprisonment on both counts of murder, with a 22 year non-parole period ordered, which was two years above the statutory minimum. The crime was also in breach of a domestic violence order in place to safeguard his wife.

Issue/s: Whether the circumstances of the killings warranted the non-parole period to be extended beyond the 20 year statutory minimum, so as to make the sentence manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. In the appellant’s favour, the killing was not drawn out, there was no prolonged suffering and there was minimal planning involved. On the other hand, he killed not only his estranged wife, but a defenceless 14 year old girl in defiance of a domestic violence order which was intended for his wife’s protection. Also, the appellant displayed no remorse and pleaded not guilty which had made the process agonising for those affected. These factors warranted a strong element of denunciation and vindication for the victims in the sentence. The appeal against conviction was also dismissed.

R v Postchild [2013] QCA 227 (20 August 2013) – Queensland Court of Appeal

‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape

Appeal Type: Appeal against sentence.

Facts: The applicant was convicted of the rape of his girlfriend and was sentenced to six years’ imprisonment. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. The applicant had an extensive criminal history, consisting of street and property offences, as well as a previous conviction for carnal knowledge of a 13 year old girl. He had previously breached a reporting condition associated with this conviction. He committed the rape while on parole for unrelated offending. The primary judge described the rape as a ‘brutal act’, and that the applicant had treated his girlfriend as, ‘an object for his own sexual gratification and had had no regard for her feelings’ (See at [15]).

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed by majority. The Chief Justice, (with whom Gotterson JA agreed) held that the sentence was appropriate, and upheld the trial judge’s findings in relation to the brutality of the act.

However, Holmes JA dissented and was of the view that the sentence should be reduced to 5 years with the non-parole period shortened. Her Honour’s judgment contains very useful summaries of all comparable cases, (see [17]-[32]). Holmes JA noted factors including that this was a single incident of a short duration, and was not a ‘protracted exercise in humiliation’ (at [33]). There was no forced entry or weapons used. Her Honour also noted that the, ‘offence did not occur in a context of fear or intimidation’, as the relationship was still on foot. Holmes JA was of the view that the nature of the relationship made these circumstances distinguishable from rapes performed by strangers (See at [34]). It was also noted that the victim was, ‘a strong minded young woman who was left humiliated and angry by what occurred, but not terrified’ and, ‘There was no evidence of lasting psychological harm’.

R v Susec [2013] QCA 77 (12 April 2013) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury for the murder of his wife, and sentenced to life imprisonment (see further at [5]-[25]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s:

1.

Whether the trial judge should have admitted evidence of a previous incident of the appellant sharpening a knife in the presence of the deceased and two witnesses.

2.

Whether evidence of the victim’s statement that she believed her husband was going to kill her was admissible.

3.

Whether evidence of a conversation between the deceased and a co-worker, which was initially held to be hearsay evidence because it was too vague and unreliable but later inadvertently admitted during the questioning of the co-worker at trial resulted in a miscarriage of justice.

4.

Whether a conclusion that the appellant’s post-offence conduct involved inflicting wounds on himself, putting pepper in his own eyes and exaggerating the seriousness of his condition was open on the evidence.

Decision and Reasoning:

1.

Gotterson JA (with whom McMurdo P and Muir JA agreed) held that such evidence was admissible under s 132B of the Evidence Act 1977. Its probative force was not outweighed by its potential prejudice to the accused. It was relevant to the state of the relationship, as well as to self-defence and provocation. It did have subjective elements, (such as the witnesses’ descriptions of their emotions during the incident), but this was not such as to enliven the s 130 discretion to exclude it, and the trial judge gave a sufficiently clear warning against its use as propensity evidence.

2.

The Court held that this evidence was admissible. The deceased’s fear of the appellant was relevant to the jury’s consideration of whether the deceased initiated an assault or provoked the attack.

3.

While the Court held that this evidence should not have been admitted, it did not amount to a miscarriage of justice so this ground was dismissed.

4.

The Court held that this conclusion was clearly open on the evidence (see at [70]).

R v James [2012] QCA 256 (24 September2012) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Sentencing’

Charge/s: Breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The complainant (the appellant’s de facto partner) was receiving treatment at a hospital necessitated by an earlier assault by the appellant. The appellant then waited outside a toilet door at the hospital and punched her in the face which caused pain, discomfort and swelling. He was sentenced to 9 months imprisonment for contravening a domestic violence order. He had a long criminal history including six prior breaches of domestic violence orders and convictions for other offences.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Leave to appeal was refused, with the Court upholding the 9 month sentence. The maximum penalty for breaching a domestic violence order applicable at the time was 12 months imprisonment. This was later increased to two years (three years if the accused has prior convictions). Also, Henry J observed that there ought not exist an expectation that a one third discount to the head sentence will be applied where there is a plea of guilty, although such an outcome may be common (Holmes JA and McMurdo P agreed). McMurdo P (Holmes JA agreed) found that a further exacerbating feature was that the offence occurred in a hospital where the victim and other patients should be entitled to freedom from exposure to such violence.

R v Murgha [2012] QCA 255 (24 September 2012) – Queensland Court of Appeal

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim’

Charge/s: Grievous bodily harm, breach of domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The applicant pleaded guilty to doing grievous bodily harm (GBH) to his de facto partner and breaching a domestic violence order. The offending was committed during the operational period of six suspended sentences. It involved the applicant throwing a knife at his partner who was pregnant. The knife became embedded in her skull. He was sentenced to three years’ imprisonment for the GBH offence and was convicted but not further punished for the breach offence.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: McMurdo P (Holmes JA and Henry J agreeing) dismissed the appeal and held that the sentence was appropriate. Mitigating factors included his remorse and corporation with police, his lack of similar criminal history, good rehabilitation prospects and his good standing in the community. The complainant also tendered a letter stating that: she wanted their child to grow up knowing their father; they planned to reconcile and that she found it hard to cope as a single parent. Notwithstanding, the sentencing judge correctly imposed a deterrent sentence. The primary judge noted that ‘the use of knives in domestic disputes on Palm Island was all too common’, which required a deterrent sentence. Other relevant factors included the fact the offence constituted a breach of a DVO and occurred while the applicant was subject to suspended prison sentences.

R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223 (24 August 2012) – Queensland Court of Appeal

‘Exposing a child’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Manslaughter.

Appeal type: Appeal against sentence.

Facts: The respondent pleaded guilty to the manslaughter of his partner. He was in a long term relationship with the deceased, with whom he had three young children. He was a heavy cannabis user. In the weeks leading up to the killing, the deceased had confided to others about problems in the relationship. The respondent believed the deceased was having an affair and was upset as the deceased’s sister owed him $15 000. He was concerned the deceased was preparing to leave him and take his children – he claimed that she was ‘messing with my head’ (See at [10]). On the day of the killing, the respondent spoke to his parents who both encouraged him to seek help from a counsellor or psychiatrist. He then strangled the deceased until she was unconscious in the presence of the children. After moving the children to another room, he stabbed the deceased twice in the chest, killing her. He also stabbed himself but the injuries were not life threatening. After being declared fit to stand trial, but of diminished responsibility (under section 304A of the Queensland Criminal Code) by the Mental Health Court, he pleaded guilty to manslaughter. The psychiatrist stated that the respondent, ‘suffered from a personality disorder with paranoid traits.’ This, as well as his drug abuse and the viciousness of the killing suggested that his condition was likely to endure after being released from custody (see at [29]). However, gradual improvement may be expected with regular treatment (See at [15]). He had no relevant criminal history. He was sentenced to nine years’ imprisonment. Parole release would depend on his illness and progress of rehabilitation while in prison.

Issue/s: Whether the sentence was manifestly inadequate and whether the sentencing judge should have made a ‘serious violent offence’ declaration.

Decision and Reasoning: The appeal was dismissed. McMurdo P (with whom Muir JA and Gotterson JA agreed) held that as deterrence and denunciation were of less importance in this case due to the limited moral culpability of the respondent (because of his mental illness), the primary purposes of sentencing were the protection of the Queensland community and punishment of the offender. However, the Court found that a nine year sentence with no serious violent offence declaration and no parole eligibility date was within range for a spousal manslaughter based on diminished responsibility. There was a plea of guilty, no evidence of further danger to the community and evidence of remorse. A recovery was not certain, but the respondent was responding positively to medication and treatment. Also, the fact that he strangled the deceased in front of the children was an aggravating feature, but this had to be considered in the context of diminished responsibility which reduced his moral culpability for the crime.

R v Hughes [2012] QCA 208 (14 August 2012) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of murdering her de facto partner. There was a history of domestic violence between the appellant and the deceased and multiple domestic violence orders were taken out against each other on separate occasions. (See further at [5]-[49]).

Issue/s: Whether the primary judge erred by admitting evidence of statements made by the deceased to various witnesses that he suspected the appellant had drugged him and whether the verdict was unreasonable having regard to the evidence.

Decision and Reasoning: Both grounds of appeal were dismissed. The appellant submitted that the statements made by the deceased were not admissible because no relevant inference could be drawn from them, so they were hearsay statements and therefore inadmissible. This submission was rejected – the Court held that unlike in R v Lester [2008] QCA 354, the statements were not ‘reports of statements made to (the deceased) by others’. Instead, they were statements about the deceased’s own physical sensations after falling asleep in an unusual manner, and came after an episode of domestic violence between the appellant and the deceased. Such evidence was relevant to the ‘deceased’s relationship with the appellant, their mutual dealings and their attitudes for each other’, and to whether the appellant drugged the deceased (See at [64]). As such, it was admissible under section 93B of the Evidence Act 1977 as an exception to the hearsay rule. The other ground of appeal that the verdict was unreasonable having regard to the evidence was also dismissed.

R v Amery [2011] QCA 383 (23 December 2011) – Queensland Court of Appeal

‘Malicious act with intent’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Pre-sentence custody’ – ‘Sentencing’

Charge/s: Malicious act with intent.

Appeal Type: Appeal against sentence.

Facts: In breach of a domestic violence order made that morning, the appellant returned to his de facto partner’s house and hit her head twice with a sledgehammer while she was sleeping, causing substantial injuries. The applicant pleaded guilty to a malicious act with intent and was sentenced to 8 years’ imprisonment, with no parole eligibility date set. No adjustment of the sentence was made for time already served in pre-sentence custody.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The Court noted that the head sentence was not outside the permissible range. The offending was very serious, was not a spontaneous response, and was committed in breach of the DVO. Also, he had a serious criminal history, including a similar breach of a domestic violence order. However, the trial judge erred in not adjusting the sentence for pre-sentence custody and not imposing a parole eligibility date. As such, also taking into account the (albeit late) plea of guilty, the sentence was reduced to seven years, seven months’ imprisonment, with the appellant becoming eligible for parole after three years.

R v Rowe [2011] QCA 372 (16 December 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Burglary with violence’ – ‘Common assault’ – ‘Damaging property’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Wilful damage’

Charge/s: Stalking with violence, burglary with violence, assault occasioning bodily harm, common assault and wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The appellant had been in a relationship with the complainant for 6 years and had one child. The relationship ended, at which point the stalking began via telephone and text messages. There had been some conflict in the relationship about the care of the child. He broke into her home, demanded to see her phone and punched her on the head multiple times. He pushed a lighted cigarette on her leg, causing burns. He threatened to kill her. He tackled her to the ground to prevent her from seeking help and punched her again multiple times. He drove her to the hospital after she had cleaned up at his request. He yelled and threatened her while in the car, drove dangerously, and backhanded her to the side of her face. All of this occurred in front of their two year old child. Once the complainant was released from hospital he attended her workplace and caused significant damage to her car. He had a criminal history, including previous break and enter and assault occasioning bodily harm offences. The sentencing judge noted that the stalking was not prolonged, but it was very intense and violent. It was also noted that the child and the complainant must have been terrified.

The applicant pleaded guilty to the above offences, and was sentenced to three years’ imprisonment for stalking with violence, two years’ imprisonment for burglary with violence and assault occasioning bodily harm and 12 months’ imprisonment for common assault and wilful damage. The sentences were to be served concurrently. He was on parole at the time for a prior violent offence. This resulted in a head sentence of three years which was cumulative on an existing term of three years imprisonment, with parole eligibility set at one year after the cumulative term had been served.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that as the head sentence was reduced for the totality principle, the sentencing judge must have used a starting point of over three years which was not consistent with the comparable authorities. This was rejected. While the offending was short, it was intense, and was accompanied by actual and threatened violence, in the presence of a terrified child. The applicant’s stalking was more serious than in any of the relevant comparable authorities, and a head sentence of three years was appropriate given the circumstances of the offending and the appellant’s history, including that he was on parole for prior offences. The parole eligibility date was also found to be appropriate, given the offender was already subject to an existing term of imprisonment.

R v. Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Deterrence’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Social abuse’ – ‘Verbal abuse’ – ‘Wounding’

Charge/s: Seven counts of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and various summary offences.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to the above charges. The offending included 8 episodes of domestic violence over a three year period, involving severe physical abuse such as punching, cutting off the tip of the victim’s finger, choking, wrestling, smashing objects on the victim’s head and verbal abuse. There were lasting physical impacts on the victim including nerve injuries, loss of sensation to her finger-tip and depression and anxiety. He was sentenced for the unlawful wounding offence to 3 years’ imprisonment, suspended after 741 days (the period already served) with an operational period of 5 years. He was sentenced to 2 years imprisonment for the remaining counts.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld, with the Court holding that the original sentence was manifestly inadequate. The Court noted that when concurrent sentences are imposed, it is important to ensure that the primary term adequately reflects the nature of each individual feature of the offending. This was not reflected in the trial judge’s sentence. The mitigating factors were not particularly powerful. For example, the absence of any prior history of violence was outweighed by the prolonged duration of the offences. The fact that the respondent was not subject to a domestic violence order was not a mitigating factor but merely a distinguishing feature from analogous cases. The Court noted that the original sentence should have been in the range of six to eight years. However, given that the defendant had commenced rehabilitation, it was deemed that imposing such a sentence on appeal would be inappropriate. Also, the respondent had no prior history of violence, and was not subject to any court order at the time of the offending. Nevertheless, the sentence was increased to 5 years with the same suspension period. Probation was added for another count.

See in particular the useful remarks of McMurdo P at [53], regarding the considerations the courts should take into account for sentencing domestic violence offences – ‘The dreadful effects of prolonged episodes of domestic violence are notorious…Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’

R v McMullen [2011] QCA 153 (1 July 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Threatening violence’

Charge/s: Assault occasioning bodily harm, deprivation of liberty, rape and threatening violence.

Appeal Type: Appeal against conviction.

Facts: The offences were committed against the appellant’s de facto partner. There was a current domestic violence order in place. The complainant alleged the appellant breached that order the night before he raped her.

Issue/s: Whether the primary judge erred in admitting evidence of the appellant’s previous history of domestic violence and drug use, as well as other discreditable conduct.

Decision and Reasoning: McMurdo P (with whom Cullinane J and Jones J agreed) held that the evidence of prior domestic violence was admissible to assist the jury in understanding the nature of their relationship, and was particularly relevant to the rape charges, where the lack of consent was the critical issue. However, her Honour noted that its admissibility remained ‘extraordinary and exceptional’ (at [83]) and warranted careful directions from the trial judge to warn the jury against propensity reasoning, applying the High Court decision of Roach v The Queen [2011] HCA 12. See in particular at [84], where her Honour referenced a model direction from the Queensland Supreme and District Court Bench Book. In this case, while the trial judge went ‘part way’ in warning the jury about the limits of the use of the evidence, he did not specifically give a warning against propensity reasoning. This amounted to an error of law. However, the appeal was dismissed pursuant to the proviso, with McMurdo P taking into account the ‘discerning’ verdicts of the jury on each count and the fact that defence counsel did not ask for a redirection during the trial.

R v Harold [2011] QCA 99 (17 May 2011) – Queensland Court of Appeal

‘Character’ – ‘Criminal history’ – ‘Cumulation of sentence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Manslaughter, assault occasioning bodily harm, various summary offences.

Appeal Type: Application for leave to appeal against sentence.

Facts: The circumstances of the offending included the applicant stabbing his de facto partner multiple times and striking her with a cricket bat (See further at [3]-[9]). The applicant had a substantial and relevant criminal history of violence against the deceased committed over a 10 year period. He was convicted a number of times for severe assaults (both common assaults and assaults occasioning bodily harm) on the deceased, including punching her and hitting her over the head with an iron bar. He had previously been the subject of multiple domestic violence orders in her favour, which he had often breached. The applicant was convicted for the manslaughter of the deceased and was sentenced to 14 years’ imprisonment, including 12 years for manslaughter. The extra two years took into account 9 summary offences and two counts of assault occasioning bodily harm to which he had pleaded guilty.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Martin J (with whom Chesterman JA and White JA agreed) held that the sentencing judge correctly made the 2 year sentence for the two charges of assault occasioning bodily harm cumulative because they were separate offences committed at different times, even though they were committed in a 10 year course of conduct. The total effective sentence was appropriate and within range. The sentencing judge observed this was a repetitive and prolonged attack with a knife making it a serious case of manslaughter.

R v Murray [2010] QCA 266 (8 October 2010) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Aggravated stalking’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Serious violent offence declaration’ – ‘Stealing’ – ‘Threatening to enter premises with intent to intimidate’

Charge/s: Aggravated stalking (two counts), assault occasioning bodily harm, stealing, grievous bodily harm with intent, breach of domestic violence order (two counts).

Appeal Type: Application for leave to appeal against sentence.

Facts: The offending involved continued harassment of the complainant (the former partner of the applicant), culminating in the charge of grievous bodily harm with intent. The applicant broke into the complainant’s home which she shared with her new partner and children. He hit her on the head with a frying pan, causing her to fall to the ground. He held a knife against her throat, tied her wrists and ankles and dragged her into the car. She then threw herself out of the car, at which point the applicant stabbed her in the left side then on her right side. He had a relevant criminal history, including prior offences of violence as well as a breach of a domestic violence order. Two of these offences involved violence against his mother as well as a former partner. Two psychiatric reports detailing the mental issues suffered by the applicant were put before the sentencing judge. The total effective sentence imposed at trial was 8 years’ imprisonment. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the sentencing judge erred in not giving reasons for making a ‘serious violent offence’ declaration.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused.

1.

In relation to the serious violence offence declaration, the applicant’s counsel at trial conceded that it would be impossible to submit that the declaration should not be made. The sentencing judge referred to this concession, in applying the ‘integrated approach to sentencing’ which is required in cases where a serious violent offence declaration is appropriate (See at [22]-[23]).

2.

Counsel for the applicant contended that 8 years’ imprisonment was manifestly excessive, as it was outside of the range established by comparable authorities and it did not have regard to the psychiatric problems suffered by the applicant. This argument was dismissed, with Cullinane J (Fraser JA and Chesterman JA agreeing) finding that eight years was not outside the permissible range. The mental health issues were considered at trial, as the sentencing judge expressly referred to them.

R v Clark [2009] QCA 2 (6 February 2009) – Queensland Court of Appeal

‘Attempted murder’ – ‘Circumstantial evidence’ – ‘Damaging property’ – ‘Directions and warnings for/to jury’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Attempted Murder.

Appeal Type: Appeal against conviction and sentence.

Facts: The appellant was convicted for the attempted murder of his former wife. There were cross domestic violence orders in place against each other. He was sentenced at trial to 16 years’ imprisonment. The case turned on purely circumstantial evidence. See further at [3]-[38].

Issue/s: Whether the trial judge made errors by -

1.

Not issuing a Shepherd v R [1990] HCA 56 direction which deals with the how the jury must use pieces of evidence individually.

2.

Allowing the jury to consider evidence of the history of the relationship between the parties.

The other issue was whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. The Court noted that in a case turning on circumstantial evidence alone, it is not necessary that every intermediate conclusion of fact made by the jury be proven beyond reasonable doubt. There may be some instances, as McMurdo P observed (at [40]) if it is necessary to ‘reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt’. However, generally, only the offence as a whole needs to be proven beyond reasonable doubt. In regards to the relationship evidence, the primary judge directed the jury to the effect that such evidence was not directly relevant to the alleged offence, but only to put the relationship between the parties in context. The Court held that this direction was adequate. The Court also refused leave to appeal against sentence, finding that the premediated nature of the offending and the lack of mitigating factors meant that this was at the highest end of the scale of attempted murders.

R v Chong; ex parte Attorney-General of Queensland [2008] QCA 22 (22 February 2008) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Breastfeeding mother’ – ‘Exceptional circumstances’ – ‘Hardship on children’ – ‘Mitigating factors’ – ‘Orders affecting children’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Unlawful wounding’

Charge/s: Unlawful wounding, breach of intensive correction order.

Appeal Type: Appeal against sentence.

Facts: The complainant was the respondent’s mother. They lived on the Aboriginal and Torres Strait Islander community of Mornington Island. Following an argument, the respondent stabbed the complainant three times, causing no lasting injuries. The respondent was sentenced to two and a half years’ imprisonment with immediate court ordered parole for the wounding offence.

Issue/s: Whether the sentence was manifestly inadequate, particularly in relation to the order of immediate parole.

Decision and Reasoning: The appeal was dismissed. The respondent had a substantial and relevant criminal history. In mitigation, the respondent had performed well on the intensive correction order, had pleaded guilty and was committed to looking after her seven children, including breastfeeding a baby and ensuring that those of school age attend school. She was an Aboriginal and Torres Strait Islander woman who had suffered abuse as a child. Atkinson J (with whom Keane JA and Fraser JA agreed) held that the head sentence was not manifestly inadequate. In considering whether the immediate parole order was appropriate, her Honour considered various factors, including the respondent’s disadvantage associated with her Aboriginality. Her Honour observed that, ‘The fact that the respondent is an Aboriginal and Torres Strait Islander woman living on Mornington Island is relevant to the question of the effect on her family’. (See at [36]). While the Court noted that the effect on an offender’s children can only be one relevant circumstance in determining sentence, the Court considered that exceptional circumstances were present. The respondent was a breastfeeding mother. Imprisonment would necessitate moving to the mainland, which would remove any practical means of maintaining the breastfeeding of the baby and personal contact with her other children. Her Honour quoted various secondary sources which discuss the substantial effect of incarceration on families, particularly on Aboriginal and Torres Strait Islander families. (See at [37] – [42]). The original sentence sufficiently incorporated deterrent and punitive elements, while the immediate parole allowed for rehabilitation.

R v Sauvao [2006] QCA 331 (1 September 2006) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Community protection’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Serious violent offence declaration’

Charge/s: Attempted murder, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence order. The couple had separated. The complainant initially obtained an apprehended violence order in 2003 in New South Wales, which was then registered in Queensland upon moving to that state. In May 2005, at a railway station, the applicant attempted to stab the complainant with a small knife. The knife snapped on the complainant’s jacket, causing her no harm. He continued to punch and kick her, and hit her head into a chair and a pole. He was then stopped by bystanders. He admitted that if they had not intervened he would have persevered. He surrendered to police and made full admissions. He gave a full account and added details to his disadvantage. It is unlikely without his interview that anyone would have known about the use of the knife (the complainant herself was not aware of it), or about the applicant’s intention to kill as opposed to assault the complainant. The applicant’s only relevant criminal history was a breach of the domestic violence order in the preceding year, when he attended the house of the complainant. The applicant was sentenced to nine years’ imprisonment. A ‘serious violent offence’ (SVO) declaration was made.

Issue/s: Whether the ‘serious violent offence’ declaration should have been made.

Decision and Reasoning: Firstly, the Court held that the head sentence was ‘unremarkable’. However, Holmes JA (with whom McPherson JA and Douglas J agreed) upheld the appeal. The applicant showed profound and sincere remorse and the case involved ‘unusual’ mitigating factors. The Court found the SVO declaration should not have been made for two reasons. Firstly, there was nothing in the offence itself in terms of, ‘duration, its force or its consequences which took it out of the ordinary run of cases’. The offender had almost no criminal history. There was no element of community protection as the likelihood of repetition was remote. Secondly, he had cooperated utterly. However, the only sentence reduction he received for this cooperation and remorse was 9 and a half months (the difference between the nine year sentence with an SVO declaration, and a 10 year sentence). This was a minor reduction in the circumstances and made the SVO declaration manifestly excessive.

R v HAC [2006] QCA 291 (11 August 2006) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Torture’ – ‘Verbal abuse’

Charge/s: Torture, assault occasioning bodily harm, rape.

Appeal Type: Appeal against conviction.

Facts: The appellant held a longstanding belief in his wife’s infidelity. The acts relied on to constitute the offence of torture included abusive and humiliating acts such as: insisting that the children refer to the complainant as a slut or a whore rather than Mum, not allowing the children to show physical or verbal affection to her; forcing her to chew and swallow chillies in the appellant’s presence and forcing her to lick her vomit up; insisting that she perform sexual acts on his friends for money; insisting that she sleep outside the house without amenities; demanding that she drink his urine and attempting to persuade her to engage in a sexual act with a dog. The assault occasioning bodily harm conviction occurred when the appellant broke the complainant’s arm after she denied having sexual dealings with a neighbour. The rape conviction involved the appellant inserting the wooden handle of a ‘gaff hook’ into the complainant’s vagina. He was sentenced to 10 years’ imprisonment for torture, two years’ imprisonment for assault occasioning bodily harm and five years’ imprisonment for rape. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the directions given by the trial judge in respect of torture were inadequate.

2.

Whether the proviso should be applied.

Decision and Reasoning: The appeal was dismissed in respect of issue 2.

1.

It was accepted that the directions given by the trial judge were not consistent with McMurdo P’s judgment in R v LM [2004] QCA 192 which requires that when more than one act in a series is relied upon to prove the elements of torture, the jury must be unanimously satisfied beyond reasonable doubt that the appellant committed at least one of the particularised acts. In this case, the trial judge’s directions, ‘effectively permitted the jury to convict of torture even though the jury might not have been unanimously satisfied as to which act or series of acts were intentionally inflicted to cause severe pain or suffering’ (see at [2]).

2.

The Court held that notwithstanding this error, no substantial miscarriage of justice occurred and the proviso should be applied. Jerrard JA (Holmes JA agreeing) held that it was clear which acts amounted to torture and this evidence was substantiated by unchallenged evidence from the complainant’s daughters. Williams JA (Holmes JA agreeing) held (despite some initial concerns with applying the proviso) – ‘The offence of torture was clearly established beyond reasonable doubt by the evidence; the relevant particulars being the conduct sworn to by the complainant, supported by the evidence of her daughters, and admitted by the appellant’ (see at [11]).

R v Friday [2005] QCA 440 (30 November 2005) – Queensland Court of Appeal

‘Physical violence and harm’ – ‘Sentencing’ – ‘Wounding’

Charge/s: Wounding.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant were in a de facto relationship. While intoxicated early in the morning, an argument started after the applicant alleged that she was seeing other men. The applicant got off the bed then stabbed her through the upper arm and side of the chest. The wound did not damage internal organs, but required deep and superficial stiches. He had a criminal history, consisting of various violent offences, and one offence of breaking and entering and committing an indictable offence. He pleaded guilty to wounding and was sentenced to three years’ imprisonment with no recommendation for post-prison community based released. This sentence was made cumulative upon an existing six month sentence that he was already serving. The sentencing judge referred to the need to deter others from obtaining a knife and stabbing someone just because of an argument. This conduct was prevalent on Palm Island, where the offence occurred. He was also sentenced for breaches of an intensive correction order and a domestic violence order.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The applicant submitted that if the sentencing judge had moderated the sentence for the mitigating factors (such as the guilty plea, the applicant’s age and an apology made to the complainant), then the starting point must have been four years, which is outside the permissible range of sentences for this type of offence. The Court agreed and suspended the three year sentence after nine months, with an operational period of three years.

R v Collins [2005] QCA 172 (27 May 2005) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm.

Appeal type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The applicant was convicted by a jury for the grievous bodily harm of his then partner. The applicant beat his then partner so severely that she suffered a ‘life-threatening subdural haematoma’ (See further at [2]). He was severely intoxicated at the time of the offence. The offence was committed in breach of a domestic violence order. The appellant also pleaded guilty to several other violent offences. These offences demonstrated a history of domestic violence committed against his then partner. He was sentenced to four years’ imprisonment, suspended after two years with an operational period of five years. This sentence for grievous bodily harm was ‘intended to reflect the applicant's criminality for all the offences to which he had pleaded guilty’ (See at [27]).

Issue/s:

1.

Whether the guilty verdict was unreasonable.

2.

Whether the sentence was manifestly excessive.

Decision and reasoning:

1.

The appeal against conviction was dismissed – see at [21]-[25].

Leave to appeal was refused. The applicant did not take his partner to hospital for treatment until one day after the injuries were sustained, which showed a complete disregard for her welfare. The fact that the offence was committed in breach of a domestic violence order was described as a ‘matter of concern’ (see at [31]). The applicant showed no remorse for the life-threatening injuries he inflicted on his partner, who is the mother of at least one of his children. Even though he had no memory of inflicting the injuries as a result of his intoxication, the Court stated that with ‘sober hindsight’ he ought to have been shocked at the injuries he caused (See at [31]). Deterrence was an important factor for the safety of the complainant as well as the interests of the community. The Court held at [37] that the applicant’s small prospects of rehabilitation were not such as to warrant a more lenient approach. The sentence for grievous bodily harm, when considered in isolation was not excessive. Therefore, considering the fact that it was a sentence intended to take into account all of the offending behaviour, it was actually at the lower end of the range of appropriate sentences.

R v Fairbrother; ex parte AG (Qld) [2005] QCA 105 (15 April 2005) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Denunciation’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against sentence.

Facts: Following being released from police custody subject to conditions imposed under the then Domestic Violence (Family Protection) Act 1989 that the respondent not have contact with the complainant (his domestic partner) and that he not go to her residence, the respondent returned to her home and threw boiling water onto her twice. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. He pleaded guilty on the second day of trial and was sentenced to 2.5 years imprisonment for assault occasioning bodily harm, wholly suspended with an operational period of four years.

Issue/s: Whether the full suspension of the sentence made it manifestly inadequate.

Decision and Reasoning: The appeal was dismissed. The injuries caused the complainant severe pain over a long period and also caused some mental health issues. The respondent had some history of domestic violence. This was a ‘reasonably bad’ (at [21]) example of the offence which occurred hours after the appellant had been removed from the complainant’s home by police. However, mitigating factors included his guilty plea, his good work history and his efforts at rehabilitation. Furthermore, the respondent was not sentenced at trial for deliberately pouring boiling water on the complainant. If it had been deliberate, he would have been sentenced to actual imprisonment of at least 12 months before suspension. This was nevertheless a ‘serious example of domestic violence’ with the sentence imposed at trial being a correspondingly ‘substantial penalty’ (See at [24]).

See in particular McMurdo P’s (Jerrard JA and Cullinane J agreeing) comments on the impacts of domestic violence and the approach to sentencing at [23] –

‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.’

R v Gill; ex parte Attorney-General of Queensland [2004] QCA 139 (30 April 2004) – Queensland Court of Appeal

‘Attempted rape’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking’

Charge/s: Aggravated stalking, attempted rape.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to aggravated stalking and attempted rape and was sentenced to two years and three years’ imprisonment respectively, to be served concurrently. There was no domestic violence order in place at the time of the offence. The Court recommended consideration of post-prison community based release after 12 months (See further at [2]-[3]).

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was dismissed by majority. Holmes J (with whom Davies JA agreed) discussed R v Stephens [1994] QCA 507 and noted that it is not correct to approach rapes occurring in an existing relationship more leniently. However, this is not to say that that in the circumstances of a particular case, a sexual assault committed by a current or former partner will necessarily be equivalent to a sexual assault committed by a stranger. In comparing this case to R v McNamara, her Honour stated at [16], ‘I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.’ As such, also taking into account the respondent’s plea of guilty and comparable cases, her Honour held that the sentence, while ‘lenient’ ([21]), was adequate. However, de Jersey CJ dissented. His Honour also discussed Stephens. His view was that the statement in Stephens about an ‘honest but unreasonable’ mistake as to consent in the relationship context as a mitigating factor did not apply. The complainant had made her lack of consent clearly known and had previously shown reluctance to let the respondent into the house. His Honour stated, ‘This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded’ (See at [5]). His Honour then went onto consider the respondent’s serious and relevant criminal history, including stalking offences as well as breaches of domestic violence orders (on four occasions over an eight year period with other partners). As such, having regard to this context, his view was that the sentence for attempted rape should be increased to four and a half years and that the order for community release should be removed. Nevertheless, he was in dissent and the appeal was dismissed.

R v AN [2003] QCA 349 (11 August 2003) – Queensland Court of Appeal

‘Cumulative sentencing’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Totality’

Charge/s: Stalking with circumstances of aggravation.

Appeal Type: Appeal against sentence.

Facts: The applicant met the complainant while on remand and they lived together for a short period until the relationship broke down. The stalking occurred over the phone and included death threats and threats to the complainant’s children. There was a psychologist’s report before the trial judge, indicating that the applicant presented with a borderline personality disorder and would not be able to alter his behaviour without counselling. The applicant had a long criminal history of stalking, stealing, breaches of domestic violence orders and other offences. The applicant pleaded guilty to the stalking of the complainant with circumstances of aggravation and was sentenced to three years’ imprisonment.

Issue/s: Whether the three year sentence offended the totality principle and was therefore manifestly excessive.

Decision and Reasoning: The Court allowed the appeal, reducing the sentence to two years. The effect of the conviction was that an existing suspended sentence for other offences was activated. The applicant had also been sentenced previously for common assault and wilful damage charges. The effect of this was that the applicant was liable to four years and two months imprisonment, becoming eligible for parole at eighteen months. There was no error in the cumulative term being imposed. However, the Court did conclude that the three year term offended the totality principle. In citing comparable cases, the Court found that a three year sentence is at the top of the range for offending of this nature. Lesser sentences were imposed in comparable cases which involved more serious stalking in the domestic context, such as surveillance, letters and attempts to run the victim off the road. Such conduct was not present in this case.

R v Foodey [2003] QCA 310 (25 July 2003) – Queensland Court of Appeal

‘Aggravated stalking’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Wilful damage’

Charge/s: Stalking with circumstance of aggravation (violence), wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant separated from his wife after an eight year marriage and fourteen year relationship. Temporary protection orders were in place against the applicant in favour of his ex-wife. In breach of those orders, he stalked her on a number of separate occasions by assaulting her, driving his car at her, making threats against her and their children and following her car. His criminal history involved drug offences committed a considerable time ago. He pleaded guilty. The sentencing judge noted that the applicant showed no remorse and his conduct was of such seriousness that a deterrent sentence was more important than is normally the case. He was sentenced to 12 and a half months imprisonment, suspended for five years.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. Jerrard JA (with whom Davies JA and Helman J agreed) stated at [11] that, ‘The applicant's behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.’ The sentence was upheld.

R v Layfield [2003] QCA 3 (29 January 2003) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’

Charge/s: Stalking with a circumstance of aggravation (threats of violence).

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was convicted of stalking his former fiancee with the aggravating circumstance that he threatened to use violence against her. A previous domestic violence order was obtained by the complainant and the relationship deteriorated about a year after this. The stalking occurred over a period of less than one year. It occurred over the telephone, as well as by following and loitering outside of her place of employment. He was sentenced to two years imprisonment.

Issue/s: Whether the trial judge should have exercised the option of suspending the sentence after twelve months, on the basis of several factors including the applicant’s youth, lack of criminal history and a strong support network.

Decision and Reasoning: Davies JA (with whom McPherson JA and Mullins J agreed), refused the application, holding that while the trial judge could have imposed the lesser sentence, it was not argued for at trial, and the sentence that was imposed did not demonstrate any error. Davies JA also noted the applicant’s lack of remorse as a relevant factor.

R v Millar [2002] QCA 382 (25 September 2002) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Irrelevant considerations’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Verbal abuse’

Charge/s: Stalking with circumstances of aggravation, common assault, and dangerous operation of a motor vehicle.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant for nine months. They then lived together as a married couple for two weeks until the complainant moved out due to physical and verbal abuse by the applicant. The complainant indicated that she wished to cease all contact with the applicant. There was a domestic violence order in place, which was subsequently breached by the applicant. The stalking (committed when the order was in place) ‘involved menacing telephone calls, banging on her door, threats and letters and other items left at her residence culminating in the applicant's attempting to run the complainant off the road during the day’. This caused the complainant to veer to the wrong side of a busy rode. He then drove his car into hers and assaulted an off duty police officer who was trying to help the complainant. The applicant’s criminal history was comprised of dishonesty offences which had resulted in prison terms. Concurrent sentences of two years imprisonment (with the full activation of an unrelated nine month suspended sentence) were imposed. The complainant indicated that she was still in fear for her safety.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. The applicant submitted, inter alia that his criminal history was confined to dishonesty offences, he was young and a psychological report indicated he was remorseful. He stressed that the comparable decisions before the Court concerned situations where there was no emotional relationship between the complainant and the offender, so that in his case, a more lenient penalty should have been imposed. This argument was rejected. de Jersey CJ (with whom Helman J and Jones J agreed) held – ‘I would say for my part that that (the presence of an emotional relationship between the offender and the victim) is not a feature which should necessarily lead to a lower penalty being imposed, where the stalking follows the break-up of an emotional relationship.’

R v M [2001] QCA 166 (1 May 2001) – Queensland Court of Appeal

‘Assault’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Circumstantial evidence’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Indecent assault’ – ‘Intent’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual and reproductive abuse’

Charge/s: Burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of aggravated indecent assault and assault.

Appeal Type: Appeal against conviction and sentence.

Facts: One week prior to the offences the victim had removed her former partner’s name from their joint lease, terminating his right to enter. He (the appellant) then broke into the victim’s house, after cutting the telephone wires. He then pulled her into the bedroom, punched her, tied her up and forced her to perform oral sex on him at knife point on two separate occasions. He waved his knife at her and said that if the police were called, he would cut off her breasts and have anal sex with her. He then raped her. The appellant was the subject of a domestic violence order obtained by the complainant a month before the offences were committed. He was sentenced to 9 years’ imprisonment.

Issue/s:

1.

Whether the sentence was manifestly excessive.

2.

Whether the trial judge erred in allowing the jury to infer that it was the appellant who cut the telephone lines.

3.

Whether the trial judge erred by failing to direct the jury that they needed to be satisfied that the appellant cut the phone lines beyond reasonable doubt.

4.

Whether evidence of a domestic violence order being in place could be a relevant factor in determining whether the appellant had the requisite intent to commit an offence when he entered the house.

5.

Whether the appellant could rely on the defence of an honest and mistaken belief for the purposes of consent.

Decision and Reasoning:

1.

McPherson JA noted that a sentence of less than seven years could not have been expected – the appellant had a substantial history of domestic violence (including against the complainant’s mother) and breaches of these orders.

2.

McPherson JA held that the judge was correct in allowing the jury to infer that the appellant had caused the damage. There was uncontradicted circumstantial evidence to this effect.

3.

This argument was dismissed. Only each element of the offence needs to be proven beyond reasonable doubt, not every piece of circumstantial evidence.

4.

The Court held that evidence of a domestic violence order being in place could be a relevant factor for the jury to determine intent for the purposes of the burglary charge.

5.

This argument was dismissed. In fact, the trial judge had omitted the requirement of a ‘reasonable’ belief, which was favourable to the appellant.

R v Matamua; ex parte Attorney-General (Qld) [2000] QCA 400 (28 September 2000) – Queensland Court of Appeal

‘Assault’ – ‘Deterrence’ – ‘Going armed in public in such a manner as to cause fear’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm while armed’

Charge/s: Unlawful assault, unlawful assault causing bodily harm while armed, going armed in public in such a manner as to cause fear.

Appeal Type: Appeal against sentence.

Facts: The respondent became involved in an argument with the complainant, with whom he was in a de facto relationship. The respondent smashed a stubby of beer on his forehead which broke. He then pushed the complainant onto the bonnet of a car and held the broken bottle on her throat and threatened to slice her with it. Another argument ensued, at which point the respondent swung an axe at the complainant. He hit her on the back of the head with the handle while yelling abuse at her. She was knocked to the ground. Then, he swung the axe to the ground so that the axe head became stuck in the ground next to the complainant’s head. After a struggle, he winded the complainant and held the axe to her throat, while threatening to kill her. He was severely intoxicated. The relationship ended after the offences. The complainant experienced severe pain, but suffered no permanent physical injury. However, she suffered lasting psychological injuries. The respondent’s criminal history consisted of drug and traffic offences, as well as one offence of behaving in a threatening manner. He was sentenced to a total effective sentence of 18 months’ imprisonment, wholly suspended with an operational period of two and a half years. A $1000 fine and $1000 compensation was also ordered.

Issue/s: Whether the sentence was manifestly inadequate. In particular, whether a custodial sentence was required.

Decision and Reasoning: The appeal was upheld. Pincus JA (with whom Thomas JA and de Jersey CJ agreed) held that the degree of violence was such as to warrant a term of actual imprisonment. A deterrent sentence was needed. His conduct was prolonged. The axe could quite easily have gone through someone’s head. It involved other people as well as his partner. The sentence was increased on the principal charge of assault occasioning bodily harm to 18 months’ imprisonment with a recommendation for parole after six months. It was recommended that the respondent receive counselling for his alcohol problems.

R v MacKenzie [2000] QCA 324 (11 August 2000) – Queensland Court of Appeal

‘Battered wife syndrome’ – ‘Manslaughter’ – ‘Negligent manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Where the offender is also a victim’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction and sentence.

Facts: The applicant was married to her husband for 39 years and was subjected to severe domestic violence during that time. She pleaded guilty to the manslaughter of her husband. She was sentenced to 8 years imprisonment with a non-parole period of 3 years. (See further at [26]-[30]).

Issue/s:

1.

Whether a miscarriage of justice occurred because of advice the appellant was given to plead guilty to manslaughter, instead of pleading not guilty to murder and seeking an acquittal on the basis of self-defence.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning:

1.

This argument was dismissed – the applicant never claimed she was acting in self-defence, and there was minimal evidence to that effect. However, McPherson JA did note that evidence of ‘battered wife’s syndrome’, can be relevant as expert evidence for the purposes of self-defence (or provocation), as demonstrating the heightened awareness and arousal which may be experienced by ‘battered women’, which would be relevant to whether they had reasonable grounds to use the level of force they did.

2.

The appeal against sentence was upheld. McMurdo P (Dutney J concurring as to the orders made) held that notwithstanding that the applicant’s conduct was negligent and not a willed act, a substantial period of imprisonment was required to deter people from handling guns negligently, particularly in the context of domestic violence. Such conduct was not excused by the ‘grim history’ of domestic violence the appellant suffered. Nevertheless, this history did impact upon the appellant in that it contributed to (as a psychologist who interviewed her put it at [21]), ‘ineffective problem solving behaviour and a perception by [the applicant] of the narrowing of her options over time. A perception of narrowed options can often result in decisions made by the abused woman that from the outside look like poor judgment.’ This grave history of abuse was therefore an additional mitigating factor which partly explains how her behaviour came about. As such, taking into account all of the unusual circumstances, the sentence was reduced to 5 years, with a non-parole period of 1 year. McPherson JA agreed that the sentence should be reduced but proposed a slightly longer term.

R v Lane [1998] QCA 167 (8 May 1998) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Good behaviour bond’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Self-defence’ – ‘Where the offender is also a victim’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against the recording of a conviction.

Facts: The applicant was convicted of assault occasioning bodily harm. She was released and placed on a good behaviour bond for two years. For a number of years, the applicant had been the subject of severe physical and emotional abuse by her de facto partner. It is unclear whether at the time of the offence, there was a current or lapsed protection order in place between the applicant and her de facto partner. The incident involved the applicant hitting her de facto partner on the head with a heavy mortar bowl when he was sleeping. She later shot him, after a struggle for the gun. She was acquitted of the shooting charges on the basis that the jury found there was a reasonable doubt as to whether self-defence was available due to a reasonable fear of serious attack. However, she was convicted for the striking incident, with self-defence being excluded beyond reasonable doubt. The sentencing judge commented on the need for a ‘deterrent aspect in the element of sentencing in a case such as this’ (and noted) ‘Little point…would be served at this stage by not recording a conviction’ (See at page 6).

Issue/s: Whether the conviction should have been recorded.

Decision and Reasoning: The application was refused. Derrington J noted at [4] that the ‘(trial judge) made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.’

R v Stephens & Attorney-General of Queensland [1994] QCA 507 (28 November 1994) – Queensland Court of Appeal

‘Consent’ – ‘Indecent assault’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, indecent assault.

Appeal Type: Appeal against sentence.

Facts: The respondent was convicted of two counts of rape and one count of indecent assault of his de facto partner. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the respondent in favour of the victim. He was sentenced to three years imprisonment with a recommendation for parole eligibility after six months. The context of the relationship was one of intimidation and fear.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The Court upheld the appeal, holding that while the trial judge was correct to take into account the respondent’s youth, irrelevant considerations were taken into account. The sentence was increased to five years imprisonment with a recommendation for parole eligibility after two years. The Court found that the primary judge erred by approaching rapes occurring within an existing relationship in a more lenient way. The Court stated that generally, it is not correct to approach rapes occurring in existing relationships more leniently. There may be circumstances where the existence of such a relationship may be relevant to the sentence imposed due to the offender’s state of mind, in that, ‘there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender.’ (Note: This statement has been both distinguished and applied in subsequent Court of Appeal decisions - In R v Conway [2012] QCA 142, Henry J (with whom Muir JA and McMurdo P agreed) stated in obiter that Stephens is ‘of limited utility given its age'. However, the case has been discussed after Conway such as in R v Postchild [2013] QCA 227.) In Stephens itself, the Court of Appeal found that the circumstances of the relationship in that case did not give reason to distinguish it from a rape between strangers. There was a high degree of violence and the complainant made it clear through her protests and tears that she was not consenting.

R v Bell & Anor; ex parte Attorney-General (Qld) [1994] QCA 220 (20 June 1994) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful wounding’ – ‘Victim’

Charge/s: Unlawful Wounding.

Appeal Type: Appeal against sentence.

Facts: The respondent, an Aboriginal man, was intoxicated and following an argument with the complainant (his de facto partner), stabbed her in the thigh, punched her in the mouth twice and continued to shout and threaten her. He pleaded guilty to unlawful wounding and was sentenced to two years’ probation and ordered to perform 120 hours of community service, with no conviction recorded. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. The complainant was supportive of the respondent, but did not wish to see him in prison.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. The respondent was re-sentenced to a suspended period of imprisonment for one year, with an operational period of two years. A conviction was recorded. The Court of Appeal imposed a sentence of imprisonment of 1 year despite the wishes of the complainant, the fact that the relationship had resumed and the fact the respondent had returned to his community and returned to work. However, the operational period of the sentence was suspended. Fitzgerald P (at 6) made the following comments relating to how social and economic disadvantage (both generally and in remote Aboriginal and Torres Strait Islander communities) is relevant when sentencing domestic violence offenders –

“It was right for (the trial judge) to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.”

R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Battered woman syndrome’ – ‘Expert evidence - social worker’ – ‘Fresh evidence’ – ‘Murder’ – ‘Physical violence and harm’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of … Robyn Bella Kina on the charge of murder …’ of Anthony David Black.

Issue/s:

1.

The appellant did not receive a fair trial and a miscarriage of justice occurred because of problems of communication between the appellant and her lawyers which led to fundamental errors at trial.

2.

There was fresh evidence of such a nature that, had it been placed before the jury who decided the case, there was a substantial possibility of acquittal.

3.

The fresh evidence was of such a nature that refusal of it would lead to a miscarriage of justice.

Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.

In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:

“In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.

Supreme Court

Gardiner v Doer [2022] QSC 188 (11 November 2022) – Queensland Supreme Court

‘Civil claim for post-traumatic stress disorder’ – ‘Defendant acquitted at criminal trial’ – ‘Interference with the person’ – ‘Post traumatic stress disorder’ – ‘Tort law’ – ‘Trespass to the person’ – ‘What constitutes assault and/or battery’

Matter: civil claim for damages for assault/and or battery and post- traumatic stress disorder.

Facts: The defendant was found not guilty at a criminal trial. The plaintiff then sued him in tort.

The plaintiff and defendant had been married for 15 years and had two children together. The defendant had been verbally and physically abusive to the plaintiff. They had recently separated when the defendant told the plaintiff he would send someone to rape and sodomise her. That night, he broke into the house dressed in black including a black balaclava. He jumped on top of her, sat on her chest, covered her mouth, held her nose and started shoving the fingers of latex gloves into her mouth. She struggled and he forced her head off the couch and bumped her head on the tiled floor. He put cloth in her mouth and tape over it then did the same with her eyes. He started to tie her hands together with plastic bags. She struggled more and managed to pull off his mask. When he said that he would come for her family, he would burn down her mother’s house, he would come for her sister and that her family was evil, she recognised him as her husband the defendant. She called him by his name and after that the violence diminished.

Held: Judgment for the plaintiff in the sum of $967,113.40

Cooper J found the elements of the tort of battery made out [287]. Most of his judgment addressed the question of damages. His Honour included the following heads of damage in his assessment: General damages: $8,410; Past economic loss: $358,123; Interest on past economic loss: $58,302; Future economic loss: $343,081; Gratuitous services: $35,560; Special damages: $13,412.40; Interest on special damages: $1,899; Future special damages: $13,126, Aggravated damages: $50,000; Interest on aggravated damages: $17,600; Exemplary damages: $50,000: Interest on exemplary damages: $17,600 [389].

R v Peniamina (No 2) [2021] QSC 282 (25 October 2021) – Queensland Supreme Court

‘Allegations of infidelity’ – ‘Children’ – ‘Manslaughter’ – ‘No prior convictions’ – ‘Partial defence of provocation’ – ‘Provocation’ – ‘Reasonable belief’ – ‘Sentencing’ – ‘Weapon’

Charges: Manslaughter x 1, Murder x 1.

Proceedings: Sentencing.

Facts: The male defendant was found guilty of manslaughter following jury retrial (his conviction for murder having been set aside by the High Court in Peniamina v The Queen [2020] HCA 47 (9 December 2020)). The defendant was in a relationship with the female victim for 16 years and the couple shared four school aged children. In 2020, the defendant confronted the victim with allegations of infidelity. When the victim denied these allegations, the defendant struck her, before stabbing her 29 times and hitting her head with a cement bollard which resulted in her death [14], [11]. During the assault, the victim had armed herself with a kitchen knife and cut the defendant’s hand when he attempted to disarm her. The jury found that this act provoked the defendant’s murderous intention [10], accepting the partial defence of provocation. The jury had also found that the defendant’s belief about the victim’s infidelity was reasonable [7].

Decision and Reasoning: The defendant was sentenced to 16 years imprisonment, becoming eligible for parole after serving 80% of the sentence. Justice Davis declared that the offence was a serious violence offence and a domestic violence offence]. In sentencing, His Honour was guided by s 9 of the Penalties and Sentences Act 1992 (‘the Act’) and comparative cases [35]-[39]. His Honour noted the defendant’s early plea of guilty and genuine remorse [23], [25]. Due to the defendant’s lack of prior convictions, His Honour placed less importance on personal deterrence as a sentencing purpose [26]. His Honour took evidence of the defendant’s intention to kill his wife into account as a relevant sentencing consideration [40]-[41] and emphasised that domestic violence was an aggravating factor under s 10A of the Act.

Attorney-General for the State of Qld v Sagiba [2020] QSC 254 (21 August 2020) – Queensland Supreme Court

‘Contravention of supervision order’ – ‘Sentencing orders’

Charges: Contravening supervision order x 5; Assault occasioning bodily harm x 1 (DFV offence); Deprivation of liberty x 1 (DFV offence).

Proceedings: Contravention of supervision order.

Facts: The respondent was subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act (DPSOA). The applicant alleged the respondent contravened a supervision order and sought to extend the period of the supervision order. In early 2020, the respondent was reported to police for allegedly committing domestic violence. The respondent put his female domestic partner in a headlock, strangled and punched her, attempted to prevent her leaving the house and threatened to rape her. The respondent claimed he ‘did not commit an offence of a sexual nature’ on the basis that there was a sexual element to the latest offences, but they were not sexual offences. The psychiatric evidence was that the risk factors that were present when the original supervision order was made remain present.

Issues: Whether adequate protection of the community can be ensured by the release of the respondent subject to a supervision order.

Decision and reasoning: Supervision order extended for a further five years.

The respondent has not demonstrated that the adequate protection of the community – specifically from the commission by the respondent of a ‘serious sexual offence’ – can be ensured by his release without him being subject to supervision.

Johnson v Parole Board of Queensland [2020] QSC 108 (11 May 2020) – Queensland Supreme Court

‘Application for judicial review’ – ‘Attempted murder’ – ‘Good behaviour’ – ‘Improper exercise of power’ – ‘Murder’ – ‘Natural justice’ – ‘Parole application’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Rehabilitation programs’ – ‘Stepchildren in the family’ – ‘Weapon’

Offences: Murder x 4; Attempted murder x 1; Rape x 1

Proceedings: Application for judicial review

Issue: Whether parole should be granted.

Facts: The male applicant plead guilty to murdering his female partner and three of her four children from her earlier marriage. He also plead guilty to the attempted murder and the rape of the fourth child of that marriage. The applicant had used a hammer to inflict head injuries on the victims, and scalded the fourth child with boiling water. The fourth child was not found for five days and suffered permanent injuries. The applicant was convicted on all counts and sentenced to life imprisonment for the murder charges and 14 years’ imprisonment for the rape charge.

After serving 13 years in custody, the applicant became eligible for parole. He made several applications for a parole order, but all were refused. The applicant applied for judicial review of the latest decision refusing parole, contending that the decision was affected by an improper exercise of power because: the refusal was unreasonable, the Parole Board failed to take relevant considerations into account, and the Board applied a rule or policy without regard to the merits of the case. The applicant also contended that there was a breach of the rules of natural justice.

Held: The judge dismissed the applicant’s application for judicial review of the Parole Board’s decision. His Honour held that the Board’s decision, as evidenced by its statement of reasons, did not lack an evident and intelligible justification when all the relevant matters were considered, and therefore the decision was not unreasonable [35]. His Honour noted that "the Board is not compelled to grant parole to a prisoner who has served any particular length of timer in custody or in residential accommodation, who has completed any particular number (or all) of the available recommended rehabilitation programs or who has been of good behaviour for any particular length of time" [32] – what is important is whether the offender shows "internal change, in the sense of the development of an understanding by the offender of the pathways to offending, the triggers that lead along that path and the steps the offender can take …" [33]. In this case, the applicant had not, and still posed a risk to the community.

His Honour also held that the Board did not fail to take a relevant consideration into account, namely a program completion report, as the Board expressly referred to extracts from this report in its statement of reasons [39]-[40]. Nor did the Board apply the policy asserted by the applicant (that the Board followed the commissioned psychiatric opinion without considering alternate views by other experts) inflexibly as the Board’s statement of reasons demonstrated that it considered alternate views of a range of other experts [42], [48].

The judge further held that the Board’s decision was not affected by any breach of the rules of natural justice [55]. The applicant was invited to make submissions to the Board on multiple occasions, and no complaint was made that the applicant had inadequate time to effectively prepare [54].

R v Coman [2020] QSC 60 (3 April 2020) – Queensland Supreme Court

‘Dangerous operation of a vehicle’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘History of emotional abuse’ – ‘Judge only trial’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘People living in regional, rural and remote communities’ – ‘Perceived position of danger’ – ‘Victims as (alleged) perpetrators’

Offences: Manslaughter x 1; Dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance x 1.

Case type: Judge only trial

Facts: The female accused pleaded not guilty to manslaughter and the dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. The victim, her male fiancè, died of traumatic asphyxiation after the accused drove her motor vehicle over him as he lay on the ground. It was uncontroversial that the incident was preceded by an alcohol-fueled argument between the two parties. The accused felt threatened and decided to remove herself from what she believed to be a position of danger by attempting to drive away to a place of safety ([11]). The Crown alleged that the accused knew that the deceased was on the ground and deliberately drove her motor vehicle over the deceased, albeit without any intention to cause death or grievous bodily harm.

At the close of the Crown case, the accused’s counsel made a no case submission with respect to the count of manslaughter. In particular, it was submitted that there was no evidence from which an inference of knowledge or intention could be made. Given the fact that there had been an unexplained deviation of the accused’s car from the driveway to the position where the victim’s body was found, the no case submission was unsuccessful. The accused then elected to give evidence, and claimed that the victim ran into her car as she was driving away from the house. Two defences were raised, namely, unforeseen consequence and one of extraordinary emergency or compulsion.

Issue: Whether the accused was guilty of the offences charged.

Held: Burns J considered the significant body of evidence regarding the victim’s relationship with his former wife, his subsequent partner and the accused. The accused and victim lived in a semi-rural town and had been in a relationship for approximately 2 years. Like the victim’s prior relationships, his relationship with the accused was marred by frequent and excessive alcohol consumption. As a result of his "chronic drinking problem", there were regular outbursts of anger, emotional abuse (including belittling accusations, vile language and intimidation), and, on occasion, actual violence ([18]).

The accused was acquitted on the count of manslaughter. His Honour accepted the accused’s evidence as it was entirely consistent with the physical evidence found at the scene, as well as the nature and extent of the victim’s injuries ([36]), and found that she did not deliberately drive over the victim’s body ([52]). His Honour was also not satisfied beyond reasonable doubt that the accused substantially or significantly caused the victim’s death. The real and effective cause of his death was his decision to place himself in front of the accused’s moving car ([54]). The accused was also acquitted on the alternative count of dangerous operation of a vehicle ([65]).

R v Arumugam [2018] QSC 312 (14 December 2018) – Queensland Supreme Court

‘Arranged marriage’ – ‘Domestic violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’

Charges: Murder x 1

Facts: The offender met the victim, a Singaporean national living in Australia, through an arranged marriage website. The victim had reservations and formed another relationship. The offender threatened to kill himself if she did not marry him. The offender travelled to Australia from South Africa with the intention of killing the victim if she did not proceed with the arranged marriage. This was evidenced by a statement he made in South Africa to that effect. The offender stabbed the victim 32 times in a hotel room, and claimed that she asked him to kill her. The offender pleaded guilty to the charges. By doing so, he cooperated with the administration of justice because he saved the deceased’s family the trauma of a trial, as well as substantial court time and resources.

Issues: Sentencing

Decision and Reasoning: The offender was convicted of one count of murder, being a domestic violence offence, and was sentenced to life imprisonment. His Honour found that his conduct was planned and persistent ([20]), and involved a high degree of brutality and ferocity. Following his arrest, medical examinations found that, during his incarceration, he experienced periods of active psychosis, auditory hallucinations and paranoid and grandiose beliefs. Although the offender was diagnosed with schizotypal personality disorder, narcissistic personality disorder and borderline personality disorder, his Honour held that he was neither deprived nor impaired of full capacity at the relevant time.

R v Storie [2018] QSC 298 (30 November 2018) – Queensland Supreme Court

‘Damaging property’ – ‘Physical violence and harm’ – ‘Protection orders’

Charges: Murder x 1; Burglary by breaking, in the night, whilst armed x 1; Entering premises, doing wilful damage x 1

Facts: In the early hours of the morning, the offender drove to his ex-partner’s house. No one was home. He broke into the garage, slashed the front tyres of her car, stole a child’s bicycle and returned home. He later returned, entered her house and sliced her throat with a knife.

Issues: Sentencing

Decision and Reasoning: The offender was found guilty of ‘premeditated conduct of the very worst kind’ by taking the life of his former partner in a ‘brutal’ manner in circumstances where he was subject to a protection order ([4]). Eleven years prior he had been convicted of breaching a protection order that the victim had taken out. Premeditation was evidenced by numerous statements to the effect that his ex-partner would be ‘a dead woman’ and that the protection order would not stop him. The offender took active steps to dispose of the evidence of the murder, however later made admissions of his involvement in the victim’s death. Boddice J found that, by pleading guilty, he cooperated with the administration of justice because he saved the community the cost of a lengthy trial. He also facilitated the administration of justice by making extensive admissions to police after the discovery of the deceased’s body, which preserved police resources. He was convicted and sentenced to six years’ imprisonment for entering the premises and doing wilful damage, and to 10 years’ imprisonment for burglary by breaking, in the night, whilst armed.

R v Ney a[2011] QSC Indictment No 597 of 2008 (8 March 2011)/a sentence - unreported – Queensland Supreme Court

‘Diminished responsibility’ – ‘Expert evidence - psychiatrist - psychologist’ – ‘Manslaughter’ – ‘Post traumatic stress disorder’

Charge: Manslaughter

Proceeding: Sentencing

Facts: Ney killed her partner, Haynes, striking him in the head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder she pleaded guilty to manslaughter. She was sentenced to nine years imprisonment - eligible for release on parole after serving three years. In sentencing Ney, Dick AJ referred to the reports of a psychologist (Dr Sundin) and a psychiatrist (Associate Professor Carolyn Quadrio):

‘As you know, I have been given a number of psychiatric and psychological reports. The prosecution tendered the report of Dr Josephine Sundin. Dr Sundin has come to the opinion that as a result of the multiple traumas you have suffered in your life since your young teenage years and the series of violent intimate relationships that you have endured since that time, and the fact that you have suffered physical, sexual and psychological abuse over a long period of time, you suffer chronic post-traumatic stress disorder and borderline personality disorder.

The connection between those two matters is explained in her report and in other reports. Associate Professor Carolyn Quadrio, spells it out in her addendum report. She said, "Trauma and abuse have profound effects on mental processes and on psycho-social and psychological functions so that a disorganisation of personality occurs and leads to lasting disorder. Similarly, substance abuse which commonly develops in the context of adolescent trauma, also has a profound effect on mental and psycho-social processes and secondly, incapacitates the person so they are rendered highly vulnerable to further traumas and abuse thus creating a vicious cycle…

I have been assisted by the addendum report of Associate Professor Quadrio where she says that, "At times, however, she returned when she may have been able to escape because she experienced him as someone who loved her. This is explained as traumatic attachment relationship. Further it is also the case that in chronic or complex post-traumatic stress disorder there is both paralysis of initiative whereby the person is greatly compromised in her capacity to take action and there are alterations in perception so they have difficulty perceiving themselves accurately or others and thus in perceiving the true nature of the relationship with an abuser."

Later on she says, "If this psycho physiological disturbance is sustained over time and especially when it occurs in the crucial development years of childhood and adolescence, it eventually leads to disorganisation of personality, sustained hyper vigilance and hyper reactivity become chronic and irreversible."

Further on, "The inability to leave can be explained, partly, as a manifestation of personality disturbance but it is also the case that in domestic violence a woman feels trapped and unable to leave and knows it is not safe to leave so she remains captive and experiences more abuse and trauma and undergoes more personality disorganisation."

I have also noted from the report of Associate Professor Quadrio that those matters which are described as chronic or complex PTSD personality disorder with poly substance dependence or abuse, she says, "These disturbances reflected a lifetime of trauma, a highly chaotic and unsustainable lifestyle and both past and present intimate partner violence."

R v Falls, Coupe, Cummings-Creed & Hoare a[2010] QSC (3 June 2010)/a summing up - unreported – Queensland Supreme Court

‘Abused person’ – ‘Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Murder’ – ‘Self defence’

Charge: Murder.

Result: Acquitted.

Facts: In May 2006, the accused, Susan Falls, shot and killed her husband, Rodney Falls. Throughout their relationship, Susan Falls was subject to significant physical and emotional abuse. This included: numerous incidents of physical violence, beating one of the family’s dogs to death; numerous incidents of sexual violence and rape; threatening to kill her or harm the couple’s children. Susan Falls drugged the deceased and shot him twice as he dozed in a chair. She was charged with murder. Both self-defence, ss 271(2), 273 Criminal Code 1899 (Qld) and the defence of killing for preservation in an abusive domestic relationship, s 304B Criminal Code 1899 (Qld) were raised at trial. Two forensic psychiatrists (Dr Lawrence and Associate Professor Quadrio) were called by the defence and gave evidence about the history of violence and its effect on the offender. (Note Coupe, Cumming-Creed and Hoare were charged with being accessories to the murder but were also acquitted).

Applegarth J, summing up (3 June 2010):

‘Evidence of what, for want of a better expression, is referred to as "battered woman syndrome", is admitted, not because battered woman syndrome is a disorder, or because battered woman syndrome is a defence. Battered woman syndrome isn't a defence. The fact that someone is battered for years doesn't automatically give them a defence. Whether they have a defence depends on whether they acted as they did in circumstances that the law provides is a defence.

However, what is conveniently, and perhaps somewhat inaccurately, described as "battered woman syndrome" is relevant to legal defences.

It doesn't have to be a psychological disorder to be relevant to behaviour and to the defences in this case. It's relevant to the mental state of Ms Falls, and whether she exhibited hyperarousal and other symptoms that are recognised in such cases.

I won't repeat it. You will remember the evidence of Dr Lawrence and Associate Professor Quadrio about the mental state of persons who are subjected to prolonged abuse, their vigilance and so on. Associate Professor Quadrio summed it up pretty simply in saying they're “revved up all the time”.

The behaviour of people, be they soldiers or civilians who are subjected to trauma, has been the subject of organised study. It's not every form of behaviour that is or needs to be the subject of expert evidence. Someone's grief reaction when a loved one dies, or the anxiety that most of us feel when we talk in public, or the anxiety that most people experience when they sit exams, these are things that are familiar to us because we might remember sitting exams or we've had children who sit exams. So we don't need expert evidence to tell us about how people become anxious in certain circumstances, when they're going for an exam or a driver's licence or something of that kind, that we all know about or most of us know about. But because battered wife syndrome is relatively rare it is a legitimate matter for expert evidence and it is the proper subject for expert evidence because, without the assistance of expert evidence, ordinary people who don't know or study these things, might find the behaviour perplexing, counterintuitive or unreasonable.

It might seem odd why there would be a bond between the abuser and the abused. Why there might be, what Dr Lawrence referred to as, an ambivalent relationship, or what Associate Professor Quadrio referred to as a traumatic attachment. The behaviour of someone with a vulnerability because of past abuse who remains with their abuser.

Dr Lawrence and Associate Professor Quadrio, who are experts in their field, were able to address what was described as the "cycle of violence". How, over time the situation worsens. How often it's the case that the abuser isolates the partner. The common symptoms of a variation in mental state. The loss of self-esteem. The belief that the person who is being abused is somehow at fault. The shame they feel when they return, contrary to the advice of police. The belief that in those circumstances the police won't help them again. The reasons they don't leave: children; lack of support; lack of financial support; threats to the woman; threats to people they love; threats over the custody of children.

And apart from giving you evidence about those characteristics and observed behaviours, Dr Lawrence and Associate Professor Quadrio gave you evidence about the fact that victims of prolonged abuse can have quite correct perceptions as to the risks that are posed to them if they try to leave….

Battered wife syndrome isn't a psychological disorder. As Dr Lawrence and Dr Quadrio explained it's a pattern of behaviours. It's been the subject of research, and it's a field of study by practitioners and scholars whose research and reports are open to contest, as you'd expect scientific inquiry and research to be in a proper field of scientific study.

Dr Quadrio described how there is what she described as a "learned helplessness". How abused women are afraid to leave because they correctly assess that they're at risk. That there may have been past attempts to leave. She referred to the triggers that occur for a violent response. That the level of risk is perceived to increase or has in fact increased. Often there are threats to harm children, and the threats become specific in terms of how, when and where they will be carried out.

District Court

EJB v Commissioner of Police [2023] QDC 246 (30 January 2024) – Queensland District Court

‘Appeal’ - ‘Breach of protection order’ - ‘Parole’

Charges: Contravention of protection order x 1.

Proceedings: Appeal against sentence.

Facts: The male applicant was convicted on his own plea of guilty for contravening a protection order and sentenced to three months’ imprisonment (served cumulatively upon a nine months’ imprisonment imposed on other domestic violence offences). [2] The contraventions were committed whilst on parole after serving a sentence for other domestic violence related offences.

Appeal: The appellant contends that the three month sentence was manifestly excessive. [3]

Decision and Reasoning: Appeal dismissed. District Court Judge Farr SC had regard to the appellant’s ‘very lengthy criminal history’, and the fact that the offending occurred while the appellant was released on parole. [6]–[8] Accordingly, the sentence was not excessive in the circumstances. [18]

The King v ADP [2023] QDC 183 (5 October 2023) – Queensland District Court

‘Judge alone trial’ - ‘Physical violence and harm’ - ‘Sexual and reproductive abuse’ - ‘Rape’ - ‘Honest and reasonable mistake’ - ‘separation’ - ‘Strangulation’ - ‘deprivation of liberty’

Charges: Assault occasioning bodily harm x 2; deprivation of liberty x 2; strangulation x 1; common assault x 2; rape x 2.

Proceedings: Trial by judge alone.

Facts: The male defendant pleaded guilty to offences — excluding rape — committed against his former female partner, throughout their eight month relationship. [1]

The defendant was physically abusive, barricading her in a room after she had packed her bags to leave, biting and pushing her and strangling and rendering unconscious the complainant on multiple occasions. [4]–[7] The defendant often threatened to self-harm or commit suicide. [11] The complainant alleges the defendant raped her twice at his house one afternoon. [12]

Issue: Whether the prosecution can prove the complainant did not consent, and if so, whether the prosecution can exclude beyond reasonable doubt that the defendant did not honestly but mistakenly believe she consented. [10]

Decision and Reasoning: Not guilty of two counts of rape. The complainant was ‘an honest witness’. However, certain features of her evidence ‘reflect adversely on her reliability’; [35] namely, the complainant not challenging the defendant’s recollection of consent during a pretext call: [36]

For example, she did not challenge defendant’s recollection by suggesting to him that she had told him to stop a number of times, that she said no, that she pushed him away when he was trying to have sexual intercourse, that she was crying before he stopped having sex with her or that he had admitted to her later that day that he had raped her [36]

Accordingly McGinness DCJ was not satisfied that the complainant ‘reliably recalled when and how she communicated to the defendant that she was not consenting’. [38]

Further, McGinness DCJ was not satisfied that the prosecution that excluded beyond reasonable doubt the defence of honest and reasonable mistake: evidence of the defendant indicated his honest belief that he did not rape the complainant. [52]–[54]

SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65 (17 April 2023) – Queensland District Court

‘Aboriginal and torres strait islander person’ – ‘Appeal against protection order made after childrens court sentencing’ – ‘Child perpetrator’ – ‘Child victim’ – ‘Choking’ – ‘Couple relationship’ – ‘Couple relationship between children’ – ‘Necessary or desirable’ – ‘Physical violence’ – ‘Protection order’ – ‘Relevant relationship’ – ‘Section 37 domestic and family violence protection act 2012 (qld)’ – ‘Threats’ – ‘Weapon’

Proceedings: Appeal against temporary protection order.

Grounds:

1.

The magistrate did not have jurisdiction to make a protection order.

2.

The appellant was not afforded procedural fairness in terms of representation and an opportunity to be heard.

3.

The learned magistrate did not provide adequate reasons for the decision.

4.

The children are not in a “relevant relationship” being a “couple relationship” within the meaning of the Act.

5.

A domestic violence protection order was not necessary or desirable.

Facts: The appellant was a 12-year-old boy who had been found to be in a ‘couple relationship’ with his 12-year-old ‘girlfriend.’

After sentencing the appellant in the Childrens Court in relation to a series of offences for assaulting the aggrieved, including choking her, striking her with a broom handle and threatening her the learned Magistrate heard and determined the protection order application on a final basis, when it had only been listed for mention.

The Commissioner conceded that the learned Magistrate failed to give proper reasoned consideration to the s 37 Domestic and Family Violence Protection Act 2012 (Qld) factors pre-requisite to the making of the order.

Reasoning and decision: Appeal allowed, application for protection order dismissed.

Morzone KC, DCJ observed:

[7] However, in my respectful opinion that hearing, and determination was premature and deeply flawed in several ways.

[8] Firstly, the proceeding was only set for “mention” on that day and was neither intended nor ready for a final hearing and orders. The material consisted of the initiating application with some narrative of the circumstances attested to by the investigating police. Nevertheless, the hearing morphed into final orders without adequate reasons.

[9] Secondly, the appellant child was not afforded procedural fairness due to inadequate representation absent a guardian and not being afforded any reasonable opportunity to be heard. I do not accept that the child can be said to have retained the duty lawyer, instead the representation was effectively appointed by the court ad hoc and in the nature of amicus curiae. After taking account of court procedures, I estimate that the child had barely 5 minutes with the duty lawyer via the video-link between the courtroom and the youth detention centre. The appellant child did not have the benefit of a guardian or parent. The learned magistrate proceeded as if the appellant consented to final orders, despite both parties urging the court to adjourn the hearing pending completion of the probation order. The duty lawyer’s submissions fell well short of informed consent, and any final orders were premature and ill-founded.

[10] Thirdly, the reasons for the decision below were inadequate.

[11] Fourthly, and in any event, there was and is insufficient and inadequate evidence to establish a requisite “couple relationship” between the two children. At best, the immature relationship between the children could be colloquially described as ‘puppy love’ and falling well short of the characteristic maturity of a ‘couple relationship’ caught by the Act.

[12] Fifthly, a domestic violence protection order is neither necessary nor desirable under the Act. Instead, “necessary or desirable” orders were, and remain, available under the Youth Justice Act1992, which provides appropriate safeguards and considerations pursuant to the youth justice principles. The Childrens Court sentence proceedings may be re-opened to amend the conditions of the appellant’s probation order, but that is beyond the remit of this appellate court.

[13] Sixthly, in the absence of any proper and sufficient evidentiary basis for the making of a protection order – neither the temporary nor final order (as amended) should have been made, nor should the application be entertained where the Youth Justice Act1992 caters for the circumstances. All orders should be set aside, and the application should be dismissed.

Queensland Police Service v KBH [2023] QDC 26 (16 February 2023) – Queensland District Court

‘Allegations of infidelity’ – ‘Breach of protection order’ – ‘Children’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘History of domestic and family violence’ – ‘Manifestly inadequate’ – ‘Protection order’ – ‘Sentencing’ – ‘Separation’ – ‘Use of children in abuse’

Charges: 4x breaches of protection order.

Proceedings: Sentencing appeal pursuant to section 222 Justices Act 1886.

Grounds: The penalty of $300 for the first two counts, and $200 for the remaining charges, was manifestly inadequate.

Facts: The respondent man and aggrieved woman had been in a relationship but had separated. The offending involved multiple breaches/contraventions of a protection order, where the aggrieved was the person protected. On the first occasion, the respondent approached the aggrieved at a football match and used derogatory language before later letting himself into her house and refusing to leave until police were called. On another occasion he called their child and asked to speak to the aggrieved, accusing her of drinking and seeing other men. The final incident was when he was invited to the aggrieved’s home on the condition he leave after dinner and then refused to do so until police were again called.

The respondent had previously been sentenced to a term of imprisonment for contravention of a protection order.

Decision: The original sentence was set aside as an erroneous exercise of sentencing discretion and the respondent was resentenced to three months imprisonment.

Coker DJC found that the Magistrate had erroneously misconstrued the offending as minor breaches, evidencing a ‘total misunderstanding of the nature of domestic violence and the nature of control and dominion exercised in relation to a former intimate partner’ [25]. Where the respondent knew of his obligation not to approach the aggrieved and continued to do so, attending her home when he had been specifically directed not to, accusing her of seeing other men and refusing to leave her house when asked, the breaches were not inconsequential [25], [27], [29].

Coker DJC characterised the breaches as controlling and coercive, being ‘significant indications of a lack of appreciation or respect by the respondent of the orders previously made, and of the opportunities given to change the direction of his ways,’ particularly given the repetition of conduct for which he had previously been sentenced [28], [30].

The ‘lenient’ fine was manifestly inadequate and unreasonable in all of the circumstances [31]. Coker DJC emphasised the need to impose penalties reflecting the importance of ensuring that controlling domestic violence behaviours do not continue [32] and that while not a serious act of domestic violence, the repeated conduct of the respondent and 10 previous domestic violence convictions justified significant penalty [34].

Coker DJC stated: ‘Again, these are by no means minor matters that arise in relation to the breaches. They are controlling. They are coercive and, most importantly, they are significant indications of a lack of appreciation or respect by the respondent of the orders previously made, and of the opportunities given to change the direction of his ways.’ [28]

Wylie v AMN [2022] QDC 241 (26 October 2022) (26 October 2022) – Queensland District Court

‘Appeal’ – ‘Civil’ – ‘Court's own motion’ – ‘Failure to give reasonable opportunity to consider and respond to summary dismissal’ – ‘Police officer alleged perpetrator’ – ‘Protection order sought against serving police officer’ – ‘Summary dismissal of application for protection order’ – ‘Whether magistrate has jurisdiction to hear protection order application by police protection notice if notice not filed in the district’

Proceedings: Appeal against summary dismissal of application for protection order.

Facts: Senior Constable Wylie filed an application for a Police Protection Order under the Domestic and Family Violence Protection Act 2012 (DFVP Act). Notice was served at the Caboolture police station but filed in the Pine Rivers Magistrate’s Court. The DFVP Act s 111(1) states that Notice must be filed in the local Magistrate’s Court. The respondent argued that the case had been commenced in the wrong court so proceedings were a nullity.

The magistrate dismissed the proceedings summarily without either party raising this or having an opportunity to make submissions on this [14]. The Magistrate was concerned that the matter be decided quickly as the respondent was a serving police officer and referred repeatedly to the potential for the proceedings to waste the court’s time [17].

The aggrieved had been married to the respondent for 2.5 years and they had one son. The aggrieved applied for a protection order on the basis that the respondent had threatened to jump in front of a truck holding the child; had told her to remember that he carried a gun all day at work; and had said that no one would believe her over him, among other things.

Grounds

(a)

Jurisdiction: Whether the learned Magistrate had erred in assuming she had jurisdiction to hear the application where the Police Protection Notice initiating the proceeding was served at the Caboolture Police Station, but was filed in the Pine Rivers Magistrates Court; and

(b)

summary dismissal: Whether the Magistrate erred in dismissing the application summarily, without giving the appellant/applicant the opportunity to cross examine witnesses for the respondent.

Decision and Reasoning: Appeal upheld; order for summary dismissal set aside; matter remitted for rehearing by a different magistrate.

On jurisdiction, Porter KC DCJ held that jurisdiction should be interpreted broadly [40] and resolved a conflict between ss 136 and 111 of the DFVP Act by upholding the precedence of s136 which gives courts jurisdiction to ‘hear and decide any application made to the court under this Act’ (s136(1)(a)).

On summary dismissal, his Honour found that the Magistrate had erred in three ways:

1.

Her Honour should have declined to consider the application for summary dismissal until the evidence before her was tested at trial [76].

2.

She erred in placing weight on the fact that the respondent was a serving police officer when deciding to dismiss the application [78].

3.

She initiated the dismissal of the application of her own volition. The one day’s notice given failed to accord procedural fairness [79].

He referred to the Domestic and Family Violence Protection Rules 2014, Rule 22, which gives plenary power to determine applications. This is subject to Rule 23, which sets out a list of conditions to which this power is subject. Relevant here are that ‘each party is entitled to a fair hearing’ (Rule 23 (2)(b)) and ‘each party must be given a reasonable opportunity to lead evidence and cross examine witnesses’ (Rule 23 (2)(i)). [60]

His Honour continued at [61]:

Turning to the Act itself, apart from s. 51, there does not appear to be any statutory provision which expressly, or by necessary implication, authorises hearing and determination of an application for a (final) protection order other than by “trial” of the application. It is to be noted of course that the Act does not expressly say that a protection order is to be determined by trial. However, where the Act creates a right and confers civil jurisdiction on a court to hear and decide an application to enforce that right, it must necessarily imply that the application be determined by procedurally fair process apposite to a hearing which results in a final order. At the least, that must include a reasonable opportunity to lead evidence, cross examine and otherwise test another party’s evidence and address the Court on the findings of fact that the Court should make on the evidentiary record and the law that applies to those facts.

He held that the Magistrate did not have an express statutory power summarily to dismiss the application [66]. While statutory courts do not have inherent jurisdiction, they have implied powers to do whatever is necessary to perform their function [67]. While a court would have jurisdiction summarily to dismiss frivolous or vexatious cases that amount to an abuse of process, this power does not extend to cases ‘where there is a real question of fact to be determined’ [72].

LJV v Commissioner of Police [2022] QDC 220 (13 September 2022) – Queensland District Court

‘Appeal’ – ‘Appeal against conviction and sentence’ – ‘Appeal against conviction dismissed’ – ‘Appeal against sentence upheld’ – ‘Appellant convicted of contravening a domestic violence order’ – ‘Criminal law’ – ‘Whether magistrate interfered with evidence of a witness’ – ‘Whether magistrate's involvement in conduct of trial went beyond their role as trial judge’ – ‘Whether the appellant received a fair trial’

Matter: appeal against conviction and sentence.

Facts: The applicant was subject to a domestic violence order and due to attend court for a breach thereof when he sent the following text to the respondent:

You will need to pick up the kids from school today as I need to prepare for court tomorrow morning to contest the bogus claims you have laid against their father in yet another alienation attempt. I will pick up the children as normal from school on Friday depening [a typographical error, I infer] on the decision from the judge.

The prosecution argued that the text breached the requirement for the applicant to be of good behaviour and not commit domestic violence and the requirement not to contact the respondent except concerning parental or contact issues.

Grounds:

1.

The Magistrate’s examination of the aggrieved was a miscarriage of justice as it led evidence on her behalf on which the accused had no notice [15]. His Honour’s examination of the applicant relied on knowledge of previous actions before the court and risked his being identified with one of the parties [20]. The trial was unfair and the conviction should not stand.

2.

The sentence was manifestly excessive.

Held: Appeal against conviction dismissed; appeal against sentence upheld; sentence set aside; order that the offender be convicted but that no conviction be recorded and the offender not be further punished.

Porter QC DCJ found that a portion of the text message breached the requirement in the domestic violence order not to contact the respondent except concerning parental or contact issues [22]. His Honour deliberately did not make a finding as to whether the requirement to be of good behaviour was breached due to the unfairness of the trial on that issue [21]. He agreed with the prosecution submission that the sentence of one month’s imprisonment suspended after serving 5 days was manifestly excessive [23].

HFL v PLL [2022] QDC 219 (5 August 2022)- Queensland District Court

‘Appeal against variation of protection order to include named persons’ – ‘Appeal and new trial’ – ‘Appeal pursuant to s222 of the justices act 1886 (qld)’ – ‘Appeal unopposed’ – ‘Application to vary domestic violence order’ – ‘Costs’ – ‘Criminal law’ – ‘Grounds for interference’ – ‘Protection order’ – ‘Whether the magistrate erred by varying a protection order to include two named persons where parties had agreed that aspect of the proceedings would not proceed’

Case type: Appeal pursuant to s222 of the Justices Act 1886 (Qld).

Facts: The applicant appealed against an order by a magistrate under s 52 of the Domestic and Family Violence Protection Act 2012 (Qld) including two named persons as protected persons in a domestic violence protection order where the respondent (to the current action) had withdrawn the issue. The respondent did not attend the appeal hearing in order to save costs.

Grounds:

1.

The learned magistrate erred by varying a 2019 domestic violence order to include two named persons where the respondent indicated she was no longer seeking to have the two named persons included; no evidence was given by them about a complaint about the appellant; the court proceedings were conducted without addressing the issue; and there was no other basis to vary the 2019 order to include them;

2.

The magistrate failed to give adequate reasons for including the two named persons; and

3.

The magistrate failed to afford procedural fairness, particularly to the appellant, by failing to allow opportunity to address his Honour about whether the order ought to have been varied.

Held: Appeal allowed.

Deardon DCJ held that the lack of reasons given and the failure to afford procedural fairness were legal errors [10]. The errors should be remedied in light of the consequences of the Magistrate varying the order: the appellant was at risk of being charged with a criminal offence if he tried to contact the named persons or approached within 100 m of where they live, work or are [13]-[14]. His Honour further ordered that the respondent pay a fixed amount of costs and granted her an indemnity certificate.

DLM v WER & The Commissioner of Police [2022] QDC 79 (6 April 2022) – Queensland District Court

‘Child custody’ – ‘Coercive control’ – ‘Credibility’ – ‘Protection order’ – ‘Technology facilitated abuse’

Proceedings: Appeal against protection order.

Facts: The appellant man and first respondent woman separated after living together with their child for several years [9]. In September 2020, a Magistrate granted a protection order with non-contact conditions in the first respondent’s favour and dismissed a temporary protection order that had been granted in the appellant’s favour in July 2019. In October 2020, the appellant appealed the decision and applied to adduce ‘fresh’ evidence to establish that the first respondent had perpetrated acts of domestic violence [1]-[2].

Decision and Reasoning: Appeal dismissed.

Justice Cash considered the evidence adduced at trial and affirmed the Magistrate’s findings that ‘there had been no acts of domestic violence by the first respondent’ and that ‘there had been acts of domestic violence by the appellant’ [80]. Accordingly, His Honour affirmed the Magistrate’s decision to award a protection order in the first respondent’s favour and dismissed the appellants application to adduce evidence.

His Honour affirmed the Magistrate’s findings as to the appellant’s lack of credibility. The Magistrate had not accepted the appellant’s evidence, having found that the appellant’s claim that the first respondent deliberately had nightmares to antagonise him ‘seriously undermined [his] credibility’, which did not improve during cross-examination [36], [70]. His Honour affirmed the Magistrate’s finding that the appellant had engaged in acts of domestic violence. Firstly, the appellant had limited the first respondent’s access to their child in a manner that was manipulative and controlling [42], [70]-[72]. Secondly, the appellant had taken sexually explicit photographs of the first respondent without her knowledge or consent [38]. His Honour stated that this was an act of domestic violence that was sexually abusive and done in an attempt to ‘dominate’, ‘control’ and ‘punish’ the first respondent by causing her to fear that the images would be released during court proceedings, as the appellant had previously done [38], [42]. His Honour continued: ‘The appellant had by his conduct demonstrated a pattern of domestic violence. There was the real prospect of future domestic violence, especially where the parties shared a child, and it was likely they would have to maintain some contact’ [72]. Therefore, ‘there was no error in the Magistrate’s conclusion that a protection order should be made in favour of the first respondent’ [72].

FLC v MRT [2021] QDC 264 (1 November 2021) – Queensland District Court

‘Adverse inference’ – ‘Emotional abuse’ – ‘Failure to provide adequate reasons’ – ‘Protection order appeal’ – ‘Rule in jones v dunkel’

Proceedings: Appeal pursuant to s 164 of Domestic Violence and Family Protection Act 2012 (Qld) against the making of a protection order.

Facts: The appellant man is the respondent man’s uncle. The 29 year-old respondent gave evidence he was diagnosed with autism in 2017. The respondent’s mother (the appellant’s sister) has a lengthy history of serious mental illness and alcoholism and the respondent resided with the appellant and his partner for a time when he was a child. In the circumstances the appellant has provided a degree of support to the respondent from time to time. There was vague evidence in relation to ongoing Supreme Court proceedings in relation to trusts and the estate of the appellant’s father/respondent’s grandfather between the respondent and his siblings.

The respondent gave evidence of what he said were multiple incidents over a number of years where the appellant was emotionally and psychologically abusive towards him. The appellant’s evidence disputed many of the respondent’s allegations. There were submissions made by the respondent’s counsel at trial that it would be inappropriate to draw Jones v Dunkel ((1959) 101 CLR 298) inferences in relation to the failure to call the respondent’s mother and sister and the magistrate did not indicate a decision in that respect. The trial magistrate seemed to make findings on the basis of the demeanour of the respondent’s sister in circumstances where she was not called as a witness.

Issue: Whether the learned Magistrate failed to give sufficient reasons for the decision to grant the application for a protection order; whether the learned Magistrate took into account extraneous matters including the demeanour of the respondent’s support person; whether the learned Magistrate failed to properly consider or direct himself in line with the principle from Jones v Dunkel; whether the learned Magistrate erred in failing to make sufficient findings of fact and in failing to explain how he concluded that the requirements for making a protection order had been established.

Decision and Reasoning: Orders set aside, matter remitted for rehearing by a different Magistrate.

The trial Magistrate’s reasons failed to sufficiently address any of the conflicting versions of the appellant and respondent, the legal issues as to whether domestic violence arose and if so what kind and whether an order was necessary.

Porter QC DCJ observed:

[58] ….[W]here there are contested facts, and the circumstances are such as to make both the identification of acts of domestic violence and the need for an order open to serious question, it is necessary for properly considered reasons to be given. Those reasons must, at a minimum, cover the following matters:

(a)

The Court must make findings of fact on the principal contested factual issues with some explanation of the basis for the finding by reference to the evidence;

(b)

The Court must identify expressly what acts are found to comprise acts of domestic violence and why;

(c)

The Court must explain the basis for concluding that an order is necessary and desirable in the light of the acts found and the other relevant circumstances;

(d)

The Court must explain why the principal submissions made by the unsuccessful party on these issues have been rejected.

[59] The reasons in this case failed to address any of those matters.

SHW v ABC [2021] QDC 151 (13 August 2021) – Queensland District Court

‘Coercive control’ – ‘Credibility’ – ‘Cross-applications’ – ‘Emotional abuse’ – ‘Failure to report’ – ‘Police officer victim’ – ‘Protection order’

Matter: Appeal against dismissal of application for protection order.

Ground: The Magistrate erred in determining that no act of domestic violence had been committed by the respondent against the appellant.

Facts: The appellant police officer woman and respondent man were in a relationship which had broken down. The appellant usually had access to assets and records of the respondent’s company. The appellant’s evidence included several alleged incidents:

•

The respondent did not talk to the appellant after the appellant’s sister died;

•

The respondent had taken the appellant’s Mercedes Benz, which was company property;

•

The respondent did not allow the appellant access to the company finances;

•

The respondent attended a joint property in Paluma at a time they had agreed only she would access the property and disconnected solar panels and gas bottles;

•

The respondent refused to hand over the appellant’s furniture (despite police being present), and handed over the wrong keys to his solicitors so that when the appellant did attend Paluma, she would be unable to enter the cabin.

The appellant was a police officer. Her failure to report any abuse despite her occupation was considered by the Magistrate as evidence that the alleged domestic abuse had not occurred.

Decision and reasoning: Appeal allowed, protection order issued. The Magistrate erred in finding that it was not necessary or desirable to protect the appellant from future domestic violence, and the appeal was allowed.

While the respondent’s behaviour in relation to the appellant’s sister’s death, the company Mercedes Benz, and the company finances were all explicable by innocent reasons, his conduct in relation to the Paluma property, the furniture, and the keys were all evidence of ‘controlling and emotionally abusive behaviour that has the potential to be repeated during the course of the property settlement’, during which ‘contact [between the parties] is inevitable’. [37]

QKL v Queensland Police Service [2021] QDC 195 (18 June 2021) – Queensland District Court

‘Cross-examination’ – ‘Denial of natural justice’ – ‘Evidence’ – ‘Natural justice’ – ‘Necessary or desirable’

Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1.

Proceedings: Appeal pursuant to s 164 of Domestic Violence and Family Protection Act 2012 (Qld) against the making of a protection order.

Facts: The appellant (respondent) and aggrieved were sisters. The Magistrate hearing the application, pursued by police, did not allow the appellant sister a hearing or opportunity to cross-examine witnesses, in particular the aggrieved sister and both the appellant and aggrieved had submitted that they did not believe a protection order was necessary. The decision was made upon the papers and the appellant was not afforded the opportunity to give evidence as to her insight and the need for the orders. The appellant’s solicitor sought a listing for half-day hearing on counsel’s instructions, but the Magistrate proceeded to hear the matter on the papers. The Magistrate in his decision acknowledged that in the absence of evidence he was unable to make a determination as to whether the aggrieved was a particularly vulnerable person requiring extra consideration, or give weight to the aggrieved’s request an order not be made without explanation why the aggrieved did not see the order as necessary or desirable. The Magistrate made adverse findings against the appellant, finding the extensive differences between the appellant and aggrieved’s affidavit evidence indicated a lack of insight in the appellant, which suggestion the appellant was not given any opportunity to respond to. Adverse findings were made which seemed to have no basis in evidence, but if there was evidence of those matters they were not put to the appellant and she did not have an opportunity to respond to them.

Grounds:

1.

The magistrate erred in finding the matter without a hearing resulting in a denial of natural justice; and

2.

The magistrate erred in finding a domestic and family violence protection order was desirable in the circumstances.

Decision and Reasoning:

1.

Appeal allowed;

2.

Order of the Magistrate of 10 September 2020 set aside;

3.

Application remitted for hearing to the Brisbane Magistrates Court;

Burnett AM DCJ held that the ruling was made before the appellant’s solicitor was able to obtain instructions from counsel, and at the very least the matter ought to have been stood down to obtain instructions from counsel. The appellant has been denied natural justice as there were critical disputed matters going to the only issue in the matter, whether a protection order was necessary or desirable, which cross-examination of the parties could have resolved. The appellant was also denied the opportunity to put relevant evidence before the court.

Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99 (9 June 2021) – Queensland District Court

‘Appeal’ – ‘Orders made by consent’ – ‘Protection order’ – ‘Protection order appeal’ – ‘Solicitor party’ – ‘Systems abuse’

Proceedings: Appeal pursuant to s 164 of the Domestic & Family Violence Protection Act 2012 (the Act) against the making of a protection order.

Facts: The respondent husband (a solicitor) appealed against the making of a protection order which the Magistrate purported to make by consent, arguing he had not consented to the making of the order. He was represented at the hearing by a barrister on a direct brief and it was apparent his counsel understood the nature of the proceedings and matters before the court. The appellant argued that nothing in the hearing transcript indicated the appellant’s personal consent to the orders, and he was silent throughout the hearing, although his counsel did engage in discussion in relation to what is understood to be a standard set of orders.

Issue: Whether the Magistrate complied with the requirement of s84(2) Domestic & Family Violence Protection Act 2012 that a Magistrate about to make an order where the respondent is present “must ensure” the respondent understands the listed matters.

Decision and Reasoning: Decision appealed from confirmed, appeal dismissed.

Dick SC DCJ was satisfied that the Magistrate ensured the appellant consented or did not object to the orders because he was present in court, the Magistrate engaged in discussion with counsel and Dick SC DCJ did not believe the appellant’s counsel would not have obtained instructions on the orders handed down from the bench to counsel.

Dick SC DCJ noted:

[41] In this case the following points must be recognised.

•

The Act does not require that the Magistrate engage personally with the respondent.

•

Sub-section 84(4) of the Act provides that a court can use services or help from other persons to assist the court in discharging its obligations under s 84. Some examples are provided and for the most part, if not all, the person giving the explanation is not a legally qualified person.

•

The Appellant is a qualified solicitor.

•

The Appellant was represented in court by competent counsel.

•

The Appellant was in court at the time the order was made.

•

There was a discussion between the bench and the two barristers concerning the order.

•

The order was made by consent or without objection.

•

Section 85 of the Act provides the court must include with a copy of the orders served on the respondent, a written explanation containing the relevant material that is referred to in s 85.

NJB v Commissioner of Police [2021] QDC 42 (4 March 2021) – Queensland District Court

‘Appeal against conviction and sentence’ – ‘Breach of protection order’ – ‘Credibility’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Victim experience of court processes’

Charges: Contravening a domestic violence order.

Proceedings: Appeal against conviction and appeal against sentence.

Facts: The critical issues that had to be determined by the magistrate below were whether the male appellant, as stated by the female respondent, punched her to the side of her head after a series of arguments or, whether because of her lengthy and serious history of seizures, the court could not be satisfied beyond reasonable doubt that the injury was not the consequence of the respondent having a seizure, falling and thereby injuring herself. The appellant was found guilty and sentenced to four months imprisonment, with a parole release date set after two months.

Grounds of appeal:

Appeal against conviction:

1.

The magistrate’s findings of the respondent’s credibility or reliability were unreasonable or could not be supported by the evidence (Grounds 1 and 2).

2.

The magistrate erred in permitting the appellant to be asked about bad character without leave being sought and granted, and against objection (Ground 3).

Appeal against sentence: The sentence was manifestly excessive.

Held:

Appeal against conviction dismissed.

Grounds 1 and 2 were dismissed. Contrary to the appellant’s submission that the respondent was intoxicated on the night of the offending, the evidence supported the fact that she was no more than ‘tipsy’. The argument that the respondent had a motive to lie about the assault was also unclear and implausible.

The appellant further submitted that the magistrate failed to give sufficient weight to the respondent’s evidence minimising the frequency of her seizures. In dismissing this argument, his Honour said:

“It can be accepted that at times, the respondent did tend to downplay the frequency of those seizures. That, of course, is not to her credit. That said, the nature and extent of the seizures were clearly distressing to her and, quite likely, a source of embarrassment. That the respondent might tend to downplay her condition does not, in my view, materially damage her credit. Further, the cross-examination of the respondent on this topic was not only distressing for the respondent, it was also, at times, quite confusing. That may also be another reason which goes some way to explaining the conflicting evidence on this issue.”

There was no room for a reasonable doubt that the injury suffered by the respondent was the result of the respondent having a seizure and falling or otherwise sustaining the injury as a result thereof. It followed that the court was satisfied beyond reasonable doubt that the appellant was guilty of committing the offence charged.

Ground 3 was also dismissed. The cross-examination of the respondent and the evidence led from the appellant by his solicitor clearly left it open for the prosecutor to raise an alleged prior incident and put it to the appellant. In any event, the appellant denied the matter and the magistrate observed that that was as far as the matter could go.

Appeal against sentence allowed.

His Honour recognised that the cross-examination of the respondent about her medical history was prolonged and distressing, however this had to be seen in light of her somewhat confusing evidence. His Honour recognised that: “I have no doubt that the cross-examination could have been carried out much more efficiently and greatly shortened both the length of the cross-examination and the distress caused to the respondent.” That said, it was wrong to describe the cross-examination as largely unnecessary and irrelevant.

None of the appellant’s favourable antecedents were mentioned or given weight by the magistrate (appellant’s strong work ethic, employment, character references, and relationships with his mother and children). This was an error in the exercise of the sentencing discretion. The sentence imposed was manifestly excessive and the appellant re-sentenced to 30 days imprisonment.

PRH v LPL [2021] QDC 17 (3 February 2021) – Queensland District Court

‘Appeal against orders made in a domestic violence proceeding’ – ‘Ouster condition’ – ‘Protection orders’

Proceedings: Appeal against orders made in a domestic violence proceeding.

Facts: The appellant was prohibited from entering, remaining, approaching etc within 500 metres of the first respondent’s (aggrieved) usual place of residence and from following or approaching within 500 metres of the aggrieved. The appellant was also prohibited from entering, remaining, approaching etc to within 200 metres of premises where the named person usually lived, worked or frequented. The magistrate further ordered that the first respondent have sole right of occupancy of the Buddina residence.

Grounds of appeal: 15 grounds of appeal centred around the court below denying procedural fairness to the appellant by refusing to permit evidence to be led and wrongfully accepting false and misleading evidence given by the first respondent.

Held: Appeal dismissed, subject to a number of variations.

In particular, the imposition of a seven-year ouster condition was neither necessary to protect the first respondent nor desirable. The first respondent did not want to move as the property “was her home, she felt safe there”. However, the appellant was the registered proprietor of the property. The first respondent had had the benefit of the ouster condition for two years and three months. She also had the financial capacity to purchase alternative premises/rent.

MB v Queensland Police Service [2020] QDC 325 (18 December 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Breach bail conditions’ – ‘Breach protection orders’ – ‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Wilful damage’

Charges: Contravention of a police protection notice x 1; Wilful damage (domestic violence offence) x 1; Breach of bail condition x 7; Contravention of a domestic violence order x 4.

Proceedings: Appeal against sentence.

Facts: The male appellant repeatedly breached orders protecting his former female partner and her son. The appellant pleaded guilty and was sentenced to 2 years’ probation and ordered to pay $611.70. Convictions were recorded on all counts.

Grounds of appeal: Fresh evidence was sought to be admitted arguing that recording a conviction would have a significant effect on the appellant’s employment overseas, and the sentence was manifestly excessive.

Held: Application to admit fresh evidence was refused and the appeal dismissed.

It was appropriate to record convictions in light of the number of convictions and their serious nature (prolonged over 4 months, including more serious examples, continuation after release from custody). As at [57]: “When one considers s 12 of the Penalties and Sentences Act, the seriousness of the offences in combination outweighed any economic effect or wellbeing effect of the recording of convictions.”

The sentence could not be said to be manifestly excessive. Despite being given many chances, the appellant had “continued to ‘thumb his nose’ at the bail conditions and the domestic violence order”. Aggravating features included that these were instances of domestic violence and “the emotional harm done to the victims and the damage, loss and injury caused.” Voluntary intoxication was no excuse. The guilty pleas were sufficiently taken into account (at [59]-[61]).

It was noted at [22], [26]-[28]:

“Charge 12 occurred on 27 August 2020 which was a contravention of domestic violence order. The appellant updated his profile status making threatening comments about the complainant, SH. The post named SH and contained threats and disclosed her sexual preferences to several friends. This had a significant emotional impact on the complainant SH. The appellant was interviewed on 29 August 2020 and said he didn’t remember posting the comment but went on to say it was true.

“A victim impact statement was tendered as Exhibit 4. The offending caused distress and inconvenience to the complainant SH. She had to move regularly as a result of the conduct of the appellant and suffered defamation to her character. She alleged that total out of pocket expenses was $16,748.84.”

GRP v ABQ [2020] QDC 272 (28 October 2020) – Queensland District Court

‘Appeal against order not to grant a temporary protection order’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Step-children’ – ‘Strangulation’ – ‘Systems abuse’

Proceedings: Appeal against order not to grant a Temporary Protection Order (TPO).

Facts: The appellant man and respondent woman were in a domestic relationship, and each had children from previous relationships. There was a prior history of protection orders ordered against the appellant, with the respondent as the aggrieved. In June 2019, a protection order was made against the appellant to protect the respondent with mandatory conditions and no contact conditions except with the respondent’s written consent. The parties continued to have contact. In August 2019, following a complaint by the respondent to police, the appellant was charged with breach of a domestic violence order, common assault and choking/suffocation/strangulation x 2 (domestic violence offences). He was released on bail. This appeal concerned the appellant’s cross-application for a TPO. In November 2019, the appellant filed a private application for a protection order against the respondent. Four incidents of emotional abuse and one incident of physical abuse (scratches from August 2019) were alleged. The Magistrate declined to make a TPO.

Grounds of appeal:

1.

The Magistrate wrongly decided and erred in law by not granting a TPO.

2.

The Magistrate wrongly decided and erred in fact and law by determining that the appellant’s allegations of domestic violence against the respondent did not satisfy the definition under the Act.

3.

The Magistrate erred by failing to give adequate reasons for not granting the TPO.

4.

The Magistrate erred in fact and law in that he allowed extraneous or irrelevant matters to guide or affect his decision; mistook the facts; and did not take into account material considerations.

Held: An error of law occurred as the Magistrate did not provide adequate reasons namely, the Magistrate’s reasons only referred to the four incidents of alleged verbal abuse, but did not refer to the incident of physical violence alleged in the appellant’s application of November 2019 ([26], [30]). Further, the Magistrate erred when he stated he heard from both the appellant and the respondent in June 2019, as the appellant was not present ([31]). Her Honour set aside the Magistrate’s order.

There was sufficient evidence to warrant granting a TPO in favour of the appellant. Having regard to the temporary nature of the order, her Honour considered that the evidence of alleged physical violence was sufficient to be satisfied of the respondent committing domestic violence against the appellant (at [38]-[40]). A date for the hearing of whether a protection order should be made was already set in the Magistrates’ Court.

ARTE v Nugent & Anor [2020] QDC 268 (23 October 2020) – Queensland District Court

‘Appeal against grant of protection order’ – ‘Miscarriage of justice’ – ‘No prior history of domestic or family violence’ – ‘Ouster condition’ – ‘Protection order’ – ‘Suicide threat’

Proceedings: Appeal against making of a protection order; whether the protection order was necessary or desirable; whether the Magistrate erred in imposing an ouster condition; whether the Magistrate’s conduct amounted to a miscarriage of justice.

Facts: A protection order was made on 3 February 2020 against the male appellant after a contested hearing, including an ouster condition in relation to his female former partner’s usual place of residence.

The first respondent (the police prosecutor applicant for the order at first instance) opposes the appeal but concedes (1) the Magistrate’s reasons for judgment disclose a House v The King (1936) 55 CLR 499 error and (2) it is appropriate for the order to be varied such that the ouster condition is removed.

The second respondent (protected person) is supportive of the appeal and the relief sought. The appellant and protected person were married for 32 years. Prior to 11 October 2019, there had been no previous incidences of domestic violence. The parties were in financial stress after the collapse of a business. On 11 October 2019 the protected person called 000, telling the operator: ‘My husband has gone to the gun cabinet to do a murder suicide…He’s got a gun to kill us.’ The second respondent locked herself in a bathroom. The operator heard the second respondent yell: ‘Get away, get away’. A Police Protection Notice was issued on 11 October 2019, with a condition that the appellant surrender his weapons licence and firearms. An application for a protection order to benefit the protected person was made by the first respondent on 11 October 2019. No ouster condition was sought in the application. On 15 October 2019, the application was adjourned; a temporary protection order was made in the favour of the protected person with the standard conditions.

A protection order was made on 3 February 2020 against the appellant after a contested hearing, including an ouster condition in relation to the protected person’s usual place of residence.

The appellant contended:-

•

The appellant’s conduct did not meet the definition of domestic violence - there was no threat of violence; rather the second respondent was intoxicated, stressed and emotional which resulted in her overacting to a bad joke made by the appellant; and

•

In the alternative, a protection order is not necessary or desirable (i) appellant and protected person lived in the same residence during the term of the TPO and no domestic violence had occurred; (ii) prior to 11 October 2019, there had never been any other act of domestic violence in 32 years of the relationship; (iii) the risk of future domestic violence was remote and not sufficient to establish a need for protection.

On 3 February 2020, the Magistrate heard the application and made the order, delivering ex tempore reasons revealing that each limb of section 37(1) was satisfied and it was appropriate to impose an ouster condition. Central to the Magistrate’s reasoning were three findings:-

1.

the appellant was engaging in victim shaming;

2.

the appellant had not taken any steps to address the underlying reasons for the incident on 11 October 2019; and

3.

the relationship between the appellant and second respondent involved a power imbalance such that the later would subjugate her wellbeing to that of the former.

Grounds of appeal

1.

Did the Magistrate err in holding that it was necessary or desirable to protect the second respondent from domestic violence? Error 1

2.

Did the Magistrate err in imposing an ouster condition under s.63? Error 2

3.

Whether there were irregularities in the conduct of the trial that occasioned a substantial miscarriage of justice? Miscarriage of justice

Held: Order set aside; application remitted to the Magistrate’s Court for a new trial before a different Magistrate.

Error 1 – Did the Magistrate err in finding a protection order was necessary or desirable?

Observing Horneman-Wren SC DCJ in ACP v McAulliffe [2017] QDC 294, s.37(1)(c) invokes a very wide and general power and is to be construed liberally, having regard to s.37(2) and the s.4 principles of the Act. This required the Magistrate to have regard to the wishes and views of the people who fear or experience domestic violence to the extent appropriate and practicable (s.4(2)(b)) [at 27].

At [29], His Honour reflected on the reasons for judgment and stated that the Magistrate was satisfied s.37(1)(c) was engaged because the second respondent was not adversely affected by alcohol and the 11 October 2019 incident was a very distressing one. His Honour noted the reasons did not disclose if the considerations mandated by section 37(2) were taken into account. His Honour found this to be an error of law and warrants the order being set aside.

His Honour also found the Magistrate’s assertion of the existence of the power imbalance and reference to the Duluth model and the power and control wheel had no application to this case and amounted to an error of law.

The first respondent submitted, despite the errors in the reasons for judgment that there was in any event sufficient evidence to find the order was necessary or desirable in the circumstances. His Honour did not agree, finding, at [34], that the evidence going to this very issue is incomplete (see [65] to [85] – no sworn affidavit of the second respondent and there was no application to lead fresh evidence in this appeal).

Therefore, this should be determined in a new trial.

Error 2 – Did the Magistrate err in imposing an ouster condition?

In finding an error had been made by the Magistrate, His Honour noted that an ouster condition had not been sought by the first respondent in the initial application and that the views and wishes of the “aggrieved” had not been sought, as was required by s.64(1).

His Honour considered s.57(1)(a) and s.63 and the mandatory considerations in s.64(1)(a) and (b) regarding whether the aggrieved can safely live in the residence if the ouster is not made and any views or wishes of the aggrieved.

His Honour, at [40], did not accept the Magistrate correctly assessed the risk of future violence occurring and the need for an ouster condition because:

1.

The Magistrate’s earlier finding in relation to the significant power imbalance, in the absence of evidence (an irrelevant consideration); and

2.

The second respondent was not afforded the opportunity to express her wishes by way of sworn evidence (a mandatory consideration).

The exercise of discretion to impose an ouster order miscarried [at 41]. Both errors represent a proper basis for interfering with the exercise of discretion in the manner contemplated by House v The King (this was conceded by the first respondent in relation to (1) above).

Miscarriage of Justice

His Honour agreed there were five irregularities in the conduct of the trial at first instance such to establish a substantial miscarriage of justice:-

1.

The Magistrate spoke about, and directly to, the appellant in terms that were pejorative, and unnecessary, having regard to the evidence in proper context, (at [46] eg accusing the appellant of “bad manners”, calling him the respondent’s “gun-toting husband”);

2.

The Magistrate permitted unfair cross-examination of the appellant, (at [47] not allowing the recording to be replayed at the appellant’s request to clarify his understanding of the question and then describing this as being demonstrative of an uncooperative witness);

3.

The Magistrate was unnecessarily aggressive towards the appellant’s legal representative which adversely impacted upon the proper presentation of the appellant’s case, (at [54] accusing the appellant’s solicitor of professional discourtesy which was not borne out in the transcript);

4.

The Magistrate materially interfered with the conduct of the second respondent’s case, ( at [65] by refusing the second respondent leave to file an affidavit on the day of the hearing);

5.

An exchange between the solicitor for the first respondent and the Magistrate regarding a domestic violence stakeholders group meeting, taken with the other irregularities, is indicative of a reasonable apprehension of bias on the part of the Magistrate.

Osborne v Commissioner of Police [2020] QDC 249 (30 September 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Appellant's belief that his girlfriend and her children were victims of domestic violence perpetrated by the complainant’ – ‘Effect of deportation / visa cancellation on sentencing’ – ‘Non-fatal strangulation’ – ‘Vigilantism’

Charges: Forcible entry x 1; Wilful damage x 1; Assault occasioning bodily harm x 1.

Proceedings: Appeal against conviction and sentence (appeal against conviction abandoned).

Facts: The appellant believed that Ms MB was his girlfriend. Ms MB was in fact in a relationship with the complainant. On the date of the offence the complainant telephoned the appellant and told him that he (the complainant) was in a relationship with Ms MB. The appellant then went to the complainant’s house. He banged on the front door and said, “I’m going to kill you, cunt”; “You want war, brother? You got war.” The complainant approached his front door holding a knife which he had been using to prepare food. A verbal argument ensued, the appellant became enraged and ripped the screen door off the hinges. He lunged at the complainant grabbing him around the shirt. Both the appellant and complainant were cut with the knife during the struggle. The appellant put his left elbow and forearm around the complainant’s neck and pressed it into the complainant’s neck, choking him. The appellant continued to threaten the complainant saying, “I will kill you, cunt”. He did not stop his attack until police arrived. Prior to the incident, Ms MB and her children had told the appellant that there had been episodes of domestic violence committed by the complainant towards her. The appellant said that he went to the complainant’s house to talk to him about his behaviour and to protect the children. The appellant made full admissions to the police. The appellant was admitting to a mental health unit following the incident.

Issues: (1) Whether the sentence was excessive; (2) Whether the magistrate failed to take into account the appellant’s guilty plea and mitigating factors.

Decision and reasoning: Appeal allowed. Appellant resentenced.

The respondent concedes that the magistrate failed to take into account a number of relevant mitigating factors including: the appellant’s mental health condition, the appellant’s physical health, his mistaken belief and the likely consequence of the appellant’s conviction on his visa (see [39]-[41]). The respondent further concedes that the sentence imposed was excessive. There was no reference to any mitigating factors in the reasons of the magistrate, which tends to suggest that he failed to take those factors into account.

ATD v TBC [2020] QDC 236 (17 September 2020) – Queensland District Court

‘Appeal against protection order’ – ‘Domestic violence’ – ‘Female partner respondent subject to protection order’ – ‘Male partner aggrieved party under protection order’

Proceedings: Appeal against protection order.

Facts: The appellant (wife) filed a private application for a protection order against her husband. The respondent (husband) filed a cross application against his wife. In September 2018, a temporary protection order (TPO) was made naming the respondent (husband) as the aggrieved and the appellant (wife) as the respondent. In February 2019, the appellant was described as ‘paranoid, delusional, denigrating towards the respondent, and neglectful of the children’. The appellant also published a number of Facebook posts accusing the respondent of abducting the children and accusing him of being abusive and corrupt. In February 2019, the TPO was amended to prevent the appellant from attending the respondent’s home. In March 2019, the Federal Circuit Court made orders requiring the children live with the respondent, the appellant have two hours of supervised visitation per week, and the appellant commence therapeutic care with a Consultant Psychiatrist. In March 2019, the TPO was amended to prevent the appellant from contacting the respondent or publishing adverse comments about him online. In March 2019, the police referred the appellant to the Acute Care Team due to concerns they held regarding her mental health after she made over 100 unsubstantiated police complaints accusing the respondent of protection order breaches and other criminal behaviour. In May 2019, the appellant breached the TPO by publishing a post on Facebook which suggested the respondent broke into her house and placed a water pistol in her cupboard ‘as a threat that [she] will be killed’. In June 2019, the appellant pleaded guilty to breaches of the TPO. A full list of the appellant’s abusive communications and unsubstantiated allegations are set out in para [15]-[16] of the judgment.

Issues: Whether the magistrate’s decisions making a protection order naming the male former partner as the aggrieved and the female partner as the respondent and dismissing the appellant’s application for a protection order should be upheld.

Decision and reasoning: Appeal dismissed.

There was a proper basis for the Magistrate finding that a protection order was necessary and desirable to protect the respondent from domestic violence.

[74] The appellant has committed numerous acts constituting domestic violence against the respondent over the relevant period. Section 8 of the Act defines domestic violence for the purposes of the Act. It includes behaviour by a person towards another person which is emotionally or psychologically abusive, and behaviour that torments, harasses or is offensive. During the relevant period, the appellant sent abusive and intimidating messages to the respondent, published abusive and malicious Facebook posts, and sent numerous messages denigrating the respondent to others. The email and text communications between the appellant and the respondent clearly show a pattern of the appellant harassing and denigrating the respondent. I have summarized some of examples of these earlier in this judgment. The appellant did not and could not challenge that she had sent the relevant material to the respondent and others. The appellant sent some of this material in breach of a Temporary Protection Order and after being convicted of earlier breaches of the Temporary Protection Order.

…

It is clear from reading the transcript of the original hearing that the appellant continued to express resentment and animosity towards the respondent. Under cross-examination, the appellant refused to accept that she was in any way at fault for sending or posting the abusive and false material. The appellant’s state of mind at the time of the original hearing was relevant as to whether it was necessary or desirable to make a protection order.

[75] At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.

[76] With respect to the appellant’s application for a protection order against the respondent, the appellant has failed to show the Magistrate erred by concluding she could not be satisfied that the respondent had committed any act of domestic violence … other than some verbal abuse during the incident of 29 January 2018. It was open on the evidence for the Magistrate to prefer the respondent’s evidence over the appellant’s evidence. The evidence supported her conclusion that the respondent’s behaviour on that one occasion was out of character. In my view, although the respondent’s verbal outburst on 29 January 2018 may well have constituted emotional or psychological abuse under section 8(1)(b) of the Act, there was no credible or reliable evidence that, prior to or since that date, the respondent behaved in any way which could satisfy a court that it was necessary or desirable to make a protection order against him. The uncontested evidence was that the respondent had made no contact, directly or indirectly, with the appellant except in compliance with Family Court orders.

SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208 (1 September 2020) – Queensland District Court

‘Appeal against making of protection order’ – ‘Appeal against refusal to grant protection order (cross application)’ – ‘Breach of protection order’ – ‘Person most in need of protection’ – ‘Protection order’ – ‘S. 4 of the domestic and family violence protection act 2012’ – ‘Threats to kill’

Proceedings: Appeal against making of protection order and refusal to grant protection order (cross application).

Facts: The appellant and the second respondent were in an intimate relationship for a period of three months between October 2018 and January 2019. Following an incident on 21 January 2019, a Police Protection Notice (PPN) was issued and on 23 January 2019 a temporary protection order (TPO) was made against the appellant. On 29 January 2019, the appellant pleaded guilty to two charges of contravening the PPN.

At the mention of the police application on 17 June 2019, the appellant made a number of serious allegations against the respondent to the effect that she has conspired to have him murdered. The appellant then made an application for a protection order and temporary protection orders were made in each application. At the hearing of the applications on 19 August 2019, the police commissioner was legally represented in relation to the application for the benefit of the second respondent; the appellant was self-represented; and the second respondent did not appear. The Magistrate made an order, pursuant to s.151(2) that the appellant may not cross-examine the second respondent and that this would be the rules of engagement for the resumed hearing on 2 December 2019.

At the resumed hearing on 2 December 2019, the appellant tendered affidavits containing screen shots of various Facebook messages as evidence of his allegations against the second respondent that she had conspired to have him murdered. The second respondent gave short oral evidence by phone, being questioned solely by the magistrate. The magistrate granted the protection order in favour of the second respondent and refused the appellant’s cross application. In making the decision, the magistrate was not satisfied the second respondent was responsible for the threats and accepted the second respondent’s version of events over the appellant’s version.

Issues: Whether the magistrate was correct in determining that, upon identification of the person most in need of protection, it followed that a protection order could not then also be made against that person; whether the cross-applications should be granted.

Held: Appeal against making of protection order dismissed; appeal against refusal to grant protection order (cross application allowed).

The case clarifies the interpretation of s. 4 of the Domestic and Family Violence Protection Act 2012 (the Act). The Act does not exclude orders being made in both cross applications. Cross applications require the consideration of the matters referred to in s.37 and should not be decided on the basis of the principle in s.4(2)(e) (the identification of the person most in need of protection).

Decision on cross applications:

Her Honour considered the evidence and found it clear there was an event of domestic violence perpetrated towards the second respondent by the appellant and was satisfied the circumstances justified a protection order was necessary against the appellant, even when accepting the second respondent was not a reliable witness and prone to exaggeration. This appeal against the making of the protection order was dismissed.

Her Honour then considered the appellant’s application for a protection order against the second respondent, namely the allegations of the threats contained in Facebook messages. Her Honour stated she had no reason to doubt that the messages alleged to have been sent by the second respondent were in fact sent by her. In any event, their authenticity was not challenged. Her Honour found the messages satisfied the requirements of the definition of domestic violence in s.8(1) and s.37(1)(b). In her view, the magistrate should have found it necessary or desirable to protect the appellant from domestic violence and should have made a protection order. The second respondent did not swear any affidavit in response to the appellant’s affidavit alleging serious matters.

EKL v Commissioner of Police & PEL [2020] QDC 194 (12 August 2020) – Queensland District Court

‘Complainant a protected witness’ – ‘Procedural fairness’ – ‘Trial proceeded without the appellant present’

Matter: Protection order appeal.

Facts: Discussion between the magistrate and the prosecutor about the protection order took place in the absence of the appellant and/or his legal representative. The prosecution made an application for the complainant to be a protected witness under the Domestic and Family Violence Protection Act (DFVP Act). The appellant’s legal representative informed the court that they did not have instructions in relation to any matter other than to request an adjournment, which application was refused by the magistrate. The appellant’s representative sought leave to withdraw. The magistrate granted the protected witness application.

Issues: (1) The appellant was not afforded procedural fairness; (2) the Magistrate erred in failing to comply with the DFVP Act; (3) the Magistrate erred in finding that the protection order was ‘necessary or desirable’ in the circumstances.

Decision and reasoning: Appeal allowed, protection order set aside. Application for protection order remitted to magistrate’s court before a different magistrate.

(1) The discussion of substantive matters by the magistrate in the absence of the appellant is a ‘clear breach of the obligation of procedural fairness’ [20]. (2) In prohibiting the appellant from cross-examining the complainant, the magistrate did not comply with the pre-conditions in s 151 of the DFVP Act which include ‘requiring the court to inform the respondent that he could not cross-examine the aggrieved’ [33]. (3) Unnecessary to consider.

R v RT (No 2) [2020] QDC 158 (13 July 2020) – Queensland District Court

‘Assault’ – ‘Judge-only trial’ – ‘Strangulation’ – ‘Weapon’

Charges: Choking x 1.

Proceedings: Judge-only trial.

Facts: The defendant man was charged with unlawfully choking without consent while he and the female complainant were in a domestic relationship.

The complainant’s daughter’s partner intervened. Later, the complainant attempted to pursue a DFV protection order but ‘none of the police to whom she spoke did anything’. The complainant and defendant later reconciled. In December 2017, the defendant is alleged to have ‘put his right forearm across her neck and applied pressure’, pinning down the complainant so that she could not breathe. After the incident, the police attended the house.

1.

During the complainant’s initial conversation with police, she ‘did not describe being choked by the defendant’. The defendant stated that he did not choke her but had held her by her arms/shoulders to ‘settle her down’.

2.

When meeting with a doctor after the incident, the complainant told the doctor she felt safe at home. The doctor gave expert evidence that the complainant’s injuries were consistent with the alleged choking.

3.

The relevant Constable testified that it was not until May 2020 that they were made aware of any allegation of domestic violence prior to December 2017. When asked about allegations of earlier violence, the complainant said that she had raised this with police on numerous occasions. The police were not able to get in contact with the complainant’s daughter’s partner who witnessed the January 2015 incident.

Issues: Whether the evidence of the complainant can be accepted beyond reasonable doubt.

Decision and reasoning: Not guilty.

The defendant argued that there were:

[39] a constellation of features inconsistent with [the complainant’s] account being truthful. These included her demeanour when speaking to police that night, her failure to immediately mention being choked and her preparedness to remain living at the house and tell the Doctor she felt safe.

The judge held that:

[39] The first and last of these matters do not in my view undermine the credit of the complainant. We are far past the days where the law expected an immediate and uncontrolled emotional reaction to an assault, and adversely viewed the credit of those who did not behave as expected. And, as noted above, staying in the house is understandable for other reasons.

However, the judge was not satisfied beyond reasonable doubt that the defendant choked the complainant in December 2017 as alleged. The fact that the complainant did not mention choking at that time raised doubts about the accuracy of her evidence.

[41] … it seems to me to be very surprising that if the complaint had been choked she did not mention that in her first interactions with police on the night. This is especially so if she had been violently assaulted by the defendant in the past, including by being choked or strangled … it seems to me unlikely that a person in the position of the complainant would have failed to mention being choked to the extent and for the duration alleged when first asked to give an account of the events … There is no reason apparent to me why she could not have mentioned or demonstrated the alleged choking at this point.

[42] I do not mean by what I have written to imply there can be any universal judgement as to how alleged victims of domestic violence should behave.

[45] It is impossible to think that an experienced police officer investigating an allegation of choking in 2018 would ignore a claim that a similar event occurred, in front of witnesses, less than three years before … [It is] unlikely that the absence of reference to the earlier incidents was the product of deliberate choice by the police officer, rather than omission by the complainant. It is reasonable to conclude that, having realised failing to refer to the other incidents at an earlier time was to her disadvantage, the complainant sought to deflect this by suggesting it was the fault of the police. That she was prepared to do so substantially damages her credit.

MNT v MEE [2020] QDC 126 (20 May 2020) – Queensland District Court

‘Animal abuse’ – ‘Appeal’ – ‘Coercive control’ – ‘Necessary or desirable’ – ‘Ouster order’ – ‘Protection order’

Matter: Appeal against making of protection order.

Grounds:

1.

A finding of economic abuse was not open on the evidence.

2.

The learned Magistrate failed to properly consider whether it was necessary or desirable to make a domestic violence order.

3.

The learned Magistrate erred in law by making an ouster order.

4.

The learned Magistrate erred in law by failing to provide adequate reasons.

Facts: There was evidence that the respondent’s property had been misused and misappropriated by the appellant since she left the home to live with her son. Examples include removing the respondent’s go-cart from the home and placing it in the weather, telling the respondent which chairs she could sit on, moving the respondent’s clothing and other property from the residence to the garage and into the weather; and having work done on the house without approval from the respondent.

Further, the appellant got into a bed already occupied by the respondent at a time after they had commenced living apart on the one property. The appellant also unilaterally forgave a debt owed by the appellant’s son and the respondent alleged he applied unnecessary force to a horse.

Decision and Reasoning: Appeal dismissed. The way in which the appellant dealt with the respondent’s property, including his failure to rectify damage to the respondent’s property, was considered controlling behaviour in the overall context of the relationship and contributed to the respondent’s fear for her own wellbeing and safety. The various behaviours were aspects of “controlling behaviour or emotional or psychological abuse”. [75-79] The respondent’s account of the incident with the horse was accepted but the court was not satisfied that it constituted violence directed at the respondent.

HBY v WBI and Anor [2020] QDC 81 (14 May 2020) – Queensland District Court

‘Application to set aside interlocutory order’ – ‘Availability of documents at trial’ – ‘Judicial discretion’ – ‘Order that appeal be heard afresh in whole’ – ‘Protection order’ – ‘Unjust order’

Proceedings: Second respondent’s application to set aside interlocutory order that the appellant’s appeal be heard afresh in whole.

Facts: The male appellant and female first respondent (LAP) were in a domestic relationship. The second respondent (WBI), a police officer, issued a protection notice to the appellant in favour of LAP and a protection order was subsequently issued by a Magistrate. The appellant filed a notice of appeal and also applied for an order that the appeal be heard afresh in whole, contending that certain documents were not available at trial that showed that statements made by LAP regarding her financial position were not true (a matter going to her credit). The appellate judge allowed the application. WBI subsequently applied to the Court of Appeal for leave to appeal that order, contending that the documents were in the possession of the appellant at the time of the trial, could have been obtained with reasonable diligence or would not have had an important influence on the rest of the case. The Court of Appeal struck out the application for want of jurisdiction (WBI v HBY and Anor [2020] QCA 24). WBI then made an application for an order that the order that the appeal be heard afresh in whole be discharged and in substitution thereof it be ordered that the appeal be decided on the evidence and proceedings before the court that made the decision being appealed.

Held: Moynihan QC DCJ allowed the application, setting aside the interlocutory order that the appellant’s appeal be heard afresh in whole with the result that the appeal has to be decided on the evidence and proceedings before the court that made the decision. His Honour held that he had jurisdiction to review and set aside an interlocutory order concerning a procedural matter where there was a mistake or irregularity and it would be unjust not to set it aside [12]. In this case, the exercise of the Judge’s discretion (to issue the interlocutory order) miscarried because he took into account facts which were in part erroneous (that is, the Judge was mistaken as to the availability of the documents at trial and the appellant’s opportunity to obtain disclosure of them) [12]. It would be unjust not to set aside the order where the mistake was material and led to such an extraordinary order [12].

His Honour further held that there was "no good reason" (see R v A2 (2019) 373 ALR 214) to order that the appeal be heard afresh in part [21]. The documents would have been available to the appellant at the time of the trial with reasonable diligence, or he was in fact in possession of the documents at the time of the trial [22]-[23].

HDI v HJQ [2020] QDC 83 (14 May 2020) – Queensland District Court

‘Abuse of Process’ – ‘Appeal’ – ‘Non-fatal strangulation’ – ‘Parenting proceedings’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Systems abuse’ – ‘Variation of protection order’

Proceedings: Appeal of a decision to order a permanent stay of an application to vary a protection order.

Issues:

•

Does a Magistrate have power under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) to order a stay of an application under the Act as an abuse of process?

•

Should the application to vary the protection order be allowed, dismissed or referred back to the Magistrates Court for further hearing?

Facts: The male appellant respondent (appellant) and female respondent aggrieved (respondent) were married for 23 years and had two children together. They separated after an alleged incident of choking, the respondent applying for a Protection Order under the DFVP Act. A Temporary Protection Order, including the children as named persons, was granted and the matter was set down for a hearing. The respondent then applied to vary its terms, seeking an order ousting the appellant from the former matrimonial home (this was later dismissed). The appellant then filed a cross application seeking a Protection Order against the respondent, but this was later withdrawn. At the hearing, the Magistrate accepted the respondent’s evidence and rejected the applicant’s version of events regarding the choking incident, making a two-year Final Protection Order. Two applications were then made to vary the Final Order, one by the appellant (to set aside the Order) and one by the respondent after the appellant breached the Order, in response to which a Magistrate made a Second Temporary Order against the appellant. The appellant then made a second application for a Protection Order against the respondent.

At the hearing of these last three applications, the Magistrate ordered that: the appellant was guilty of breaching the Final Order, the appellant’s application to vary be dismissed, the Second Temporary Order be revoked and replaced with a Varied Order, and the appellant’s Second Application for a Protection Order be adjourned. The appellant appealed these orders. At the hearing for the appellant’s Second Application for a Protection Order, the respondent sought that the application be estopped or stayed for abuse of process. The Magistrate agreed that the application constituted an abuse of process and it was permanently stayed.

The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oral application to permanently stay the application to vary on the basis it was an abuse of process, and b) not allowing the application to vary to proceed to full hearing.

Judgment: The judge held that the Magistrate had no jurisdiction to order a permanent stay and therefore that the order to stay had to be set aside as a nullity. Her Honour found that the DFVP Act and Rules provide expressly or by implication for applications that are an abuse of its process to be summarily dismissed by the Magistrates Court, but there is no express reference to a power to stay such proceedings on these bases [75], [77], [83]. After examining several pieces of legislation, Her Honour also found that there was no explicit power to order a stay of an application under the DFVP Act [91], and that such a power did not need to be implied for the effective exercise of the jurisdiction to summarily dismiss applications that are an abuse of court process [94].

However, Her Honour noted that, as an appellate court, it had the power to allow, dismiss or refer the application to vary back to the Magistrates Court [99]. Reviewing all the material before her, Her Honour held that, while there was no basis to allow the application in full, two variations ought to be made to the Varied Order, both minor [103].

Rathbone v Commissioner of Police [2020] QDC 76 (30 April 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Manifestly excessive’ – ‘Mitigating factor’ – ‘People with mental illness’ – ‘Rehabilitation’ – ‘Separation’ – ‘Threats of suicide’

Offences: Contravention of DVO x 7; Wilful damage; Obstruct police officer; Serious assault; Attempted stealing

Proceedings: Appeal against sentence

Issue: Whether the appellant’s sentence was manifestly excessive.

Facts: The appellant man committed a series of offences in the course of an attempt to commit suicide by having police officers shoot him. The offences occurred in the context of the recent and highly distressing breakdown of his marriage. The appellant approached a police officer and assaulted her from behind, restraining her, pushing her against the police vehicle and attempting to remove her firearm from her holster (Attempted stealing). Other police officers intervened and restrained the appellant. He was arrested and later released on bail. After his release, he attended the police station and provided a personal apology and a gift, recognising the distress he caused to the officers.

While the appellant was in custody, his wife obtained a Temporary Protection Order which included a condition that he have no contact with her. He contravened this order and sent his wife short emails or text messages expressing affection for her and his desire to continue their relationship.

The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oThe appellant entered early pleas of guilty to all charges, was convicted and received the following sentences:

•

Contravention of a domestic violence order offences – fined $750 and no conviction was recorded

•

Wilful damage – convicted but no further penalty imposed

•

Obstruct police officer – fined $500 and no conviction was recorded

•

Serious assault – 2 months’ imprisonment, wholly suspended, for an operational period of 9 months and the conviction was recorded

•

Attempted stealing – 3 months’ imprisonment, wholly suspended, for an operational period of 9 months and the conviction was recorded.

The appellant appealed the sentences for Serious Assault and Attempted stealing on grounds that they were manifestly excessive, and the sentencing judge erred by not giving sufficient weight to the sentencing principle of rehabilitation.

Held: The judge allowed the appeal and referred the matter back for re-sentencing, holding that the imposition of a period of imprisonment was manifestly excessive. His Honour accepted that rehabilitation was a significant consideration in this case and the sentencing judge did not appropriately include it in his determination of a proper sentence [68]. Rather, the sentencing judge, by imposing a custodial sentence, "negatived [the rehabilitation considerations], in that they were excluded specifically with regard to their value" [69] and therefore the judge did not "fully consider and balance the issue of rehabilitation, in relation to the penalty imposed" [70].

In considering whether the appeal should be allowed, His Honour accepted a psychiatrist’s report that confirmed a "causal relationship between the appellant’s acute adjustment disorder with suicidal ideation upon the sudden breakdown of his marriage which led to the commission of the offences" [12]. His Honour also accepted that the appellant had exemplary antecedents and there was a negligible need for deterrence and punishment. The appellant further had a reduced moral culpability (having regard to the principles in R v Yarwood [2011] QCA 367).

His Honour ultimately accepted that the appellant’s rehabilitation and employment were likely to be adversely affected by a sentence of imprisonment and the recording of a conviction due to his inability to travel internationally to complete his PhD studies, and his vulnerable psychological state would be adversely impacted by such a sentence [13]. His Honour further concluded that "It was significant that [his two step-daughters – ie: children of his former wife] constituted part of the appellant’s support network available to the appellant" [32].

DYN v Queensland Police Service [2020] QDC 47 (27 March 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Error of law’ – ‘Guilty plea’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Persistent menacing conduct’ – ‘Sentencing considerations’ – ‘Separation’ – ‘Threat to kill’

Charges: Contravening a domestic violence order (aggravated offence) x 2.

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to 2 charges of contravening a domestic violence order (aggravated offence) and was sentenced to 18 months and 12 months imprisonment respectively, to be served concurrently with each other, but cumulative on a term of imprisonment that he was already serving. At the time of the offending, he was separated from the complainant, and was subject to a protection order which required him to be of good behaviour, not to approach the complainant woman within 50m and not to contact her. During their 8-year relationship, they had a child.

Issue: The issues on appeal were whether the sentence imposed was manifestly excessive because the learned magistrate erred by:

•

Placing too much weight on the appellant’s criminal history;

•

Failing to properly take into account the appellant’s plea of guilty by not setting a parole eligibility date at a point sooner than one half;

•

Miscalculating the setting of the parole eligibility date; and

•

Failing to take into account the principles of totality such that the sentence imposed was proportionate to his offending.

Held: Morzone QC DJC allowed the appeal and substituted the terms of imprisonment with 12 months for Charge 1 and 15 months for Charge 2. The appellant contravened the domestic violence order by texting and calling the complainant excessively, and by engaging in physically intimidatory and aggressive behaviour by going to the complainant’s home at night, rushing at her, bashing the window and later making a death threat over the telephone despite police interest. Whilst the offending did not involve physical violence, it was serious in that it involved "persistent menacing conduct in serious breach of the no contact and geographical limiting conditions" of the protection order. His Honour acknowledged the prevalence of domestic violence in the community, and was particularly concerned about the continuation of violence despite police or court intervention by protection orders ([22]-[23]). Further, the appellant’s previous convictions for like offences, especially against the complainant, were found to be an aggravating factor as it showed that his attitude of disobeying the law was not isolated ([26]). His Honour therefore held that imprisonment was the necessary punishment, and that 12 and 15 months imprisonment would provide "appropriate moderation according to the sentencing considerations and balancing aspects of specific deterrence, and further rehabilitative processes serving out the sentence within the community under the auspices of parole" ([31]).

R v Skey [2020] QDC 27 (9 March 2020) – Queensland District Court

‘Choking’ – ‘Evidence’ – ‘Evidence by video-link’ – ‘Pre-recording evidence’ – ‘Special witness declaration’ – ‘Strangulation’ – ‘Support person’ – ‘Victim experience of court processes’

Proceedings: Application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before the commencement of the trial.

Issue: The correct interpretation of s21A of the Evidence Act 1977 (Qld)

Facts: Defendant man was charged with choking his female partner without consent and was convicted and sentenced to imprisonment. A week before trial, the prosecution made an application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before commencement of the trial. The defendant opposed the victim giving evidence over video-link and the pre-recording of her evidence.

Judgment: Cash DCJ made orders permitting the complainant to testify at the trial over video-link and with a support person.

The Court rejected the Prosecution’s submission that "by not enacting a requirement to show likely disadvantage or trauma in section 21A(1)(d), parliament intended there to be a presumption of disadvantage which is itself sufficient to warrant departure from normal procedures". This submission was rejected for two reasons. First, the common law principle "that the defendant in a criminal trial should be confronted by their accuser in order to challenge their evidence was not displaced by s12A". Second, "there is nothing in s21A which compels the conclusion that any of the measures permitted by section 21A(2) are to be adopted automatically for any special witness" [9].

Regarding the order to permit giving evidence via video-link, the judge was satisfied that the capacity of the complainant to give evidence would be improved if she did not give the evidence in the defendant’s presence. The Court rejected the defendant’s submission that the defendant would suffer ‘impermissible disadvantage’ if evidence was given over video-link and provided that there is research to suggest that an average person’s ability to detect lies based on ‘demeanour’ is little better than chance.

The judge rejected the Crown’s request to pre-record the evidence as His Honour "not prepared to assume that a retrial would be such a likely outcome as to justify the order sought" [20].

EPN v Queensland Police Service [2020] QDC 34 (4 March 2020) – Queensland District Court

‘Appeal against sentence’ – ‘Contravening domestic violence order’ – ‘Female offender’ – ‘People affected by substance misuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with poor literacy skills’ – ‘Plea of guilty’ – ‘Property damage’ – ‘Separation’

Charges: Contravening domestic violence order x 1; dangerously operating a motor vehicle x 1

Case type: Appeal against sentence

Facts: The appellant wife offended by contravening a domestic violence order and dangerously operating a motor vehicle, whilst being adversely affected by an intoxicating substance. Both offences arose out of the same incident at the residence of the complainant, the appellant’s estranged husband. The appellant migrated from Thailand and could not read or write in English. On the date of the incident, the appellant attended the complainant’s residence in contravention of the protection order and caused extensive damage to the property by driving her car into the front wall of the house. The appellant pleaded guilty and was ultimately sentenced to 18 months’ imprisonment and 18 months driving disqualification.

Issue: The appellant appealed the sentence on the grounds that it was manifestly excessive because:

•

The learned Magistrate mischaracterised the nature and extent of the offending conduct;

•

The learned Magistrate misdirected himself by considering that appellant offending fell within in the same broad category of the comparative cases; and

•

Taking into account the period of pre-sentence custody, the period of time to be served in actual custody was excessive.

Held: Morzone QC DCJ found that the learned Magistrate mischaracterised the offending as falling in the most serious of categories. Although the appellant used the vehicle as a weapon, it did not fall within ‘the most serious of categories where an offender weaponises a vehicle in a direct personal attack with potential serious injury of an unprotected victim’. The offending occurred in the context of a volatile marriage breakdown, where she moved out of the matrimonial home and went on ‘a rage of wilful destruction of matrimonial assets whilst intoxicated’. The appellant willingly caused extensive damage, with the potential of indirectly causing injury to the complainant. Morzone QC DCJ held that the offending was aggravated by her intoxicated state, domestic violence and contravention of the protection order ([33]).

Further, the learned Magistrate referred to 5 cases in his decision as to the appropriate penalty. Morzone QC DCJ considered each case in light of the appellant’s offending ([40]-[50]. The cited cases were distinguishable from the appellant’s offending as they involved the serious feature of a direct personal attack with a vehicle being used as a weapon on an unprotected victim. As the applicant’s offending did not fall within the same serious category, such cases could not provide any comparative guidance ([50]).

Morzone QC DCJ also held that the learned Magistrate erred by failing to take into account some material considerations and the suitability of a suspended sentence ([64]). His Honour considered the nature and extent of the offending and mitigating factors, such as lack of criminal history, good character, guilty plea, demonstrated remorse, and cooperation with police. Whilst the appellant clearly ‘deserved’ a prison sentence, which would further the sentencing principles of punishment, and personal and general deterrence, the learned Magistrate ought to have considered the possibility of a suspended sentence. The appellant’s conduct was contextual and situational, she did not require close supervision upon release into the community, and she actively took steps to self-rehabilitate and refrain from alcohol ([63], [71]).

Consequently, Morzone QC DCJ allowed the appeal and varied the sentence by making the prison term partly suspended after the appellant serves 60 days imprisonment.

BKA v Commissioner of Police [2020] QDC 10 (19 February 2020) – Queensland District Court

‘Breaches of protection orders’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Lengthy criminal history’ – ‘Protection order’ – ‘Sentencing considerations’

Charges: 1 x contravention of a Domestic Violence Order (DVO)

Case type: Appeal against sentence

Facts: The appellant man was convicted, on his own plea of guilty, of one offence of contravention of a DVO, and was sentenced to a term of 6 months’ imprisonment, cumulative on the terms of imprisonment he was then serving relating to domestic violence offences against the same woman. The contravention in question was attending the home of his former partner (the protected person) when subject to a protection order. She was clearly scared, being found by attending police hiding in a manhole in the ceiling. The present offending occurred whilst on parole and very shortly after being granted parole ([16]).

The appellant had an ‘unenviable criminal history’ and had been imprisoned for drug and violent offences, and had been re-sentenced on numerous occasions for breaches of bail, suspended sentences and an intensive correction order ([8]).

Issue: The sentence was manifestly excessive. Three specific errors were alleged:

•

The learned Magistrate erred by not inviting submissions on a cumulative sentence

•

The learned Magistrate failed to take into account the totality when setting the parole eligibility date; and

•

The learned Magistrate erred by setting a parole eligibility date at the full-time date of the appellant’s current sentence.

Although the submissions largely focused on the parole eligibility date, it was also contended that the head sentence should have been ordered to be served concurrently ([2]-[4]).

Held:

Byrne DCJ allowed the appeal, set aside the order of the sentencing Magistrate insofar as it related to the appellant’s parole eligibility, and ordered that the appellant be eligible for parole on the date of the delivery of the judgment instead ([27]). Byrne DCJ accepted that it was an error to impose the cumulative sentence without first inviting submissions as to that possibility. It was noted at [18] that the Magistrate raised concerns about imposing another suspended sentence given the appellant’s past history of breaching such orders, but did not raise the possibility of ordering that the term be served cumulatively on the current period of imprisonment. According to Byrne DCJ, if the Magistrate did this, it would inevitably have elicited submissions as to the appropriate point for parole eligibility. It could not be said that this was an ‘error without consequence’.

The offending clearly affected the aggrieved’s safety and welfare, although the appellant did not inflict any actual physical violence on her on that occasion. Given that the offending occurred so soon after the appellant had been released on parole for offending involving the same woman, and in light of the need for specific deterrence given the appellant’s history for breaching court orders, Byrne DCJ held that a head sentence of 6 months cumulative on the period of imprisonment the appellant was already serving was appropriate ([19]). However, the extension of the parole release date was excessive, especially in light of the head sentence of 6 months. His Honour considered that this in itself would be sufficient grounds to allow the appeal ([21]). The lengthy deferral of the parole eligibility date failed to reflect the appellant’s guilty plea, that he did not inflict any physical violence and that he had served about 3 months of pre-sentence custody that could not be declared as time already served under the sentence ([24]).

Baker v Queensland Police Service [2019] QDC 258 (17 December 2019) – Queensland District Court

‘Animal abuse’ – ‘Domestic violence order’ – ‘History of contravention’ – ‘Mitigating factors’

Charges: Contravention of a domestic violence order (aggravated offence) x 1; Possessing dangerous drugs x 4; Failure to appear in accordance with an undertaking x 1.

Case type: Appeal against sentence

Facts: The appellant was convicted and sentenced for contravening a domestic violence order during the operational period of a suspended sentence. He was also sentenced in relation to other drug and violence offences. The appellant hit the aggrieved (whom the order was made in favour of) during an argument. The strike caused a small cut to her lip. The appellant then left the address but shortly returned holding a crate and threatened to bash her dog. The couple had another argument later in the evening before the aggrieved escaped and called police. The appellant denied being at the address and hitting the aggrieved when later questioned.

The appellant filed his notice of appeal five weeks late. The delay was not significant and was caused by the appellant’s attempts to seek legal advice.

Issue: Whether the sentence imposed was excessive.

Decision and reasoning: The court found that the sentence was not excessive and dismissed the appeal.

The appellant relevantly argued that the contravention offence was his first breach of a domestic violence order against this particular complainant however, Fantin DCJ observed at [41] ‘The fact that this was the appellant’s first contravention against this particular woman is not a matter in his favour. What is relevant is that he had previously been convicted on earlier occasions of breaching domestic violence orders and of domestic violence offences, but continued to reoffend.’

CTC v Commissioner of Police [2019] QDC 250 (29 November 2019) – Queensland District Court

‘Domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical harm and violence’ – ‘Pregnant people’ – ‘Separation’ – ‘Sexual and reproductive abuse’

Charges: Contravention of a domestic violence order

Case type: Appeal against sentence

Facts: The complainant and applicant were married but did not live together. The complainant was pregnant with their second child at the time of offending and there was a domestic violence order in place preventing the applicant from engaging with the complainant in any way without her consent. On the day of the offending, the applicant had become enraged and assaulted the complainant after finding communications between her and another male on her phone. The attack left the complainant with a swollen and cut lip.

The applicant pleaded guilty to the charge and was originally sentenced to three months imprisonment wholly suspended for two years with the conviction recorded.

•

The sentence was manifestly excessive;

•

The learned magistrate erred in failing to have proper regard to the principles of ‘parsimony’; and

•

The learned magistrate failed to give due weight to the appellant’s mitigating circumstances.

Issues: Whether the sentence was manifestly excessive and whether the magistrate erred in his reasoning.

Decision and reasoning: Jarro DCJ concluded that the sentence imposed was not excessive.

Ground 1: ‘The applicant came before the court with a relevant criminal history. He is a mature man. He used actual violence and a physical injury was sustained by the complainant, albeit of a limited nature. The offending was aggravated as the complainant was 23 weeks pregnant at the time and the violence was unprovoked’ (pg 5). In considering these aggravating features and the need for general deterrence to be reflected in the sentence given the prevalence of domestic violence in the community, Jarro DCJ considered the sentence imposed to be within the appropriate range.

Ground 2: Jarro DCJ provided that ‘the principle of "parsimony" is not a governing principle used in the exercise of discretion in sentencing and therefore the sentencing judge was not in error by not having regard to the principle.

Ground 3: Jarro DCJ found that the magistrate appropriately balanced the applicant’s mitigating circumstances against the applicant’s aggravating factors and the need for deterrence.

AMB v TMP & Anor [2019] QDC 100 (21 June 2019) – Queensland District Court

‘Children’ – ‘Emotional and psychological abuse’ – ‘Insults’ – ‘Protection order’

Charges: Domestic violence charges, resulting in a Domestic and Family Violence Protection Order

Case type: Appeal against making of order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)

Facts: The appellant challenged a decision made pursuant to s 37 Domestic and Family Violence Protection Act 2012, granting the aggrieved a protection order for 5 years. The order was made after a contested hearing. The aggrieved claimed that she was not in a relationship with the appellant, but that they had a daughter. Her affidavit provided details about her contact with the appellant, which involved insults by him and several unpleasant interactions, including via text ([16]).

Issue: The appellant appealed the decision on the ground that the learned magistrate erred in finding that 1) the appellant committed domestic violence against the aggrieved within the meaning of Part 2, Division 2 of the Act; and 2) the protection order was necessary or desirable to protect the aggrieved from domestic violence pursuant to s 37 of the Act.

Held: The appellant submitted that the evidence did not support a finding of domestic violence, and that the magistrate erred in relying on the evidence as the credit of the aggrieved was fatally damaged ([23]-[24]), [35]).

Kent DCJ dismissed the appeal. The magistrate’s analysis relied on uncontentious matters. Given the fact that the appellant did not deny sending the various text messages and that they clearly showed insulting language, the credit of the aggrieved was not central to the analysis and result ([35]). It was somewhat difficult to assess whether the events constituted domestic violence in the form of emotional abuse because there appeared to be a mutual exchange of insults between the parties ([36]). Where the communication between the parties involves the ‘trading’ of insults, it is more difficult to conclude that mere insults amount to ‘emotional abuse’. In his Honour’s opinion, insults ‘fall on a continuum of seriousness, from completely trivial to very serious; and at a certain point on the continuum it becomes clear that emotional abuse is involved’ ([37]).

The Court held that there was no appealable error by the magistrate. There was no error demonstrated in any step set out in MBE v MLG in that: 1) there was a risk of future domestic violence, which was more than a mere possibility; 2) there was a need to protect the aggrieved from that risk; and 3) an order was necessary or desirable, particularly considering the factors in s 4(1) ([41]).

CSN v The Queensland Police Service [2019] QDC 43 (3 April 2019) – Queensland District Court

‘Imprisonment’ – ‘Obstruct police’ – ‘Protection orders’ – ‘Sentencing’

Charges: Obstruction of a police officer x 1.

Case type: Appeal against sentence.

Facts: The appellant pleaded guilty to one charge of obstructing a police officer, for which he was sentenced to 4 months’ imprisonment with immediate parole release. It was alleged that the appellant made previous threats to kill his ex-wife and daughter. When the police came to his house to serve him with a police protection notice, he became aggressive and verbally abusive. The police feared a risk of serious injury, even though the appellant was not armed. He fled the property, maintaining that ‘he was not going to be served with anything and was throwing his phone away’. When he returned to the property, he continued to be abusive towards the officers. He was restrained and arrested for obstructing police ([5]-[9]). The Magistrate regarded the offence to be ‘amongst the most serious of obstruct police charges, given the facts presented here and the escalation of the situation’, and sentenced the appellant to 4 months’ imprisonment with an immediate parole release ([20]-[21]). The appellant appealed against the sentence on the ground that it was manifestly excessive and that the Magistrate had overestimated the seriousness of his offending behaviour.

Issue: The issue is whether the sentence that the Magistrate imposed was excessive having regard to the circumstances of the offending, the appellant’s antecedents, his prior criminal history, his mental health issues, his endeavours to rehabilitate and other relevant sentencing principles and guidelines ([29]).

Held: McGinness DCJ noted the appellant’s extensive criminal history, which commenced when he was a child and included breaching domestic violence orders, common assault and stalking ([10]). The offence was found to have serious features, including the nature of the appellant’s verbal abuse, his actions of leaving the property and saying he would continue to refuse service of the protection order. However, the Magistrate’s finding that the offence was ‘amongst the most serious of obstruct police charges’ was an error which led to the sentence imposed being excessive ([31]). The appellant did not physically struggle with the police, and complied with police directions once he returned to the house. He also was not armed. His Honour noted that the offending must be viewed against the appellant’s mental health issues at the time of offending, and childhood histories of sexual abuse at the hands of authoritative figures in a custodial setting. Other relevant factors include his genuine efforts to receive treatment and rehabilitate ([32]). Therefore, because of his criminal history, financial circumstances and his continuing efforts to rehabilitate, a probation or community service order would have been within range. His Honour allowed the appeal, and varied the sentence to 2 months’ imprisonment suspended forthwith for operational period of 2 months. Even though, at first glance, this order could be mistaken for ‘tinkering’, his Honour maintained that reducing the sentence to 2 months was substantial ([33]).

JWD v The Commissioner of Police [2019] QDC 29 (8 March 2019) – Queensland District Court

‘Bail’ – ‘Breach protection order’ – ‘Double jeopardy’ – ‘Double punishment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Technology facilitated abuse’

Charges: Four charges including stalking and using a listening device in breach of a domestic violence protection order, and breach of a bail condition.

Case type: Appeal against conviction. Application for extension of time.

Facts: The applicant and complainant had previously been in a relationship. The first charge related to the use of a listening device to record a private conversation, which the applicant installed in the complainant’s vehicle during the course of their relationship. The final three charges occurred when the relationship had apparently ended. As the complainant prepared to go to sleep one night, she noticed the applicant standing on her patio, peering through a bedroom window. The behaviour was in breach of a domestic violence protection order and constituted stalking. Further, it was aggravated by being in breach of court orders ([9]-[12]).

The Magistrate took into account the fact that the applicant was 47 years old, had no relevant criminal history and was a New Zealand native. He obtained a tertiary qualification and stable employment. He also had a number of positive references attesting to his good character and sought counselling while in custody. Her Honour placed the applicant on three years’ probation. No conviction was recorded, except for the offence of unlawful stalking, as it was the most serious charge ([14]-[16]).

The applicant sought an extension of time within which to appeal, arguing that the delay was attributable to administrative error and was relatively short ([5]). It was argued that the three concurrent probation orders in relation to the stalking, contravention of the domestic violence order and breach of bail, amounted to double punishment contrary to s 16 of the Criminal Code (Qld).

Issues: Whether the sentence was manifestly excessive and offended the prohibition on double punishment for the same act.

Decision and reasoning: The Court allowed the appeal and granted the extension of time. The Court held that the Magistrate’s conclusion as to recording of a conviction was free from appealable error. The probation orders for the contravention of a domestic violence order and breach of bail condition were set aside as double punishment. The applicant was convicted and not further punished. Moreover, the sentencing discretion was found to have miscarried in relation to the offence of using a listening device – an offence with a maximum penalty of only two years’ imprisonment and which was relatively minor in the circumstances. The sentence imposed for that offence was reduced from three years’ probation to two years’ probation, with no conviction recorded ([22]-[25]).

CBC v Queensland Police Service [2019] QDC 3 (30 January 2019) – Queensland District Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Female perpetrator’ – ‘History of domestic violence’ – ‘Parole eligibility date’ – ‘Parole release date’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Victim as (alleged) perpetrator’

Charges: 1 x grievous bodily harm, 1 x assault occasioning bodily harm, 1 x contravention of a Domestic Violence Order (DVO), and a further contravention of a DVO (aggravated)

Case type: Appeal against sentence

Facts: In 2016, the appellant, an Aboriginal woman, was convicted on her guilty plea to domestic violence related offences, namely, grievous bodily harm, assault occasioning bodily harm, contravention of a DVO and a further contravention of a DVO (aggravated offence). When the appellant was released from parole, she formed an intimate relationship with the aggrieved. Their relationship was characterised by alcohol-fuelled domestic violence, which led to its termination ([5]-[7]).

A protection order was issued in 2018, prohibiting the appellant from "following or approaching the aggrieved". The appellant breached this order by attending the aggrieved’s home while he was inside ([9]). The Magistrate sentenced the appellant to 1 month imprisonment to be served cumulatively upon a pre-existing 3 year sentence, with immediate release on parole. The prosecution applied to reopen the sentence on the basis that a parole eligibility date was required by s 160C Penalty and Sentences Act 1992 (Qld). The sentence was reopened in the appellant’s absence and without hearing further substantive submissions about the offending conduct and mitigating circumstances. The Magistrate amended the sentence by fixing a parole eligibility date in lieu of a parole release date ([12]). The appellant was arrested and returned to custody ([13]).

Issue: The appellant appealed the sentence on the grounds of manifest excessiveness. Other grounds were raised in her submissions, such as breach of natural justice and jurisdiction to reopen the sentence ([14]-[15]).

Held:

In Morzone DCJ’s view, the Magistrate ‘erred in exercising the sentencing discretion by initially mistaking the facts, then allowing erroneous or irrelevant matters to guide or affect him in re-opening the sentence without regard to matters of totality, and failing to take into account some material considerations as to the nature and extent of the offending’. The sentence was therefore unreasonable and plainly unjust ([37]). While the appellant had previous convictions for serious violent offences, and had reoffended while on parole for those offences, her offending was comparatively trivial and did not involve actual contact with, or any violence towards, the aggrieved ([42]). However, she has found herself in prison as a result of her ongoing alcohol mismanagement. The current offending was at the lowest end of the range, and imprisonment was found to be disproportionate to the seriousness of the offending and ‘too crushing’ on the appellant ([44]). Consequently, the appeal was allowed and the Magistrate’s orders were set aside. The appellant was convicted, but not further punished for the offence ([45]).

ODE v AME [2018] QDC 277 (13 December 2018) – Queensland District Court

‘Application for a stay of judgment’ – ‘Principles as to grant or refusal’ – ‘Stay of proceedings’ – ‘Systems abuse’

Appeal type: application for a stay of a judgment given in the Magistrates Court.

Facts: On 20 September 2018, Magistrate Strofield declined to grant a protection order for the benefit of the applicant (ODE) against the respondent (AME) on the basis that his Honour wasn’t satisfied that it was necessary or desirable to make one, as required under s 37(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [3]). ODE appealed that decision to the Queensland District Court; she filed a notice of appeal on 9 November 2018 and within it outlined seven grounds of her appeal (see [5]). On that same date, a stay application was brought in the form of an application for a temporary protection order pending hearing of the other appeal. Judge Richards stayed the decision of Magistrate Strofield on 9 November until 23 November 2018 at which time Judge Koppenol dissolved the stay order (see [6]-[7]). This was likely due to the fact he wasn’t satisfied the appeal was of any merit (see [6]-[7]). A further stay application was filed on 6 December 2018 with the aim of extending the temporary protection order until the appeal by staying Magistrate Strofield’s decision to refuse to make a final protection order ([8]).

Issues: The applicant sought a stay on two main grounds. First, her affidavit (filed on 6 December 2018) extended on the points raised in her notice of appeal concerning the merits of her appeal. Second, the respondent had perjured himself in the proceedings before the Magistrate.

Decision and reasoning: application dismissed, appellant restrained from making any application in relation to the proceeding without leave from the court, and the appellant was ordered to pay the respondent’s costs of the application.

As to the first ground of appeal, Porter QC DCJ explained to the applicant that where a party has applied for a stay but failed and then applies again, it is usually required that the party establish some new matter that has emerged since the last refusal to “justify a second bite at the cherry” ([11]). The applicant accordingly pointed to two matters. The first was that since the judgment on 23 November 2018, the respondent had committed further acts of domestic violence by not returning certain belongings to her (see [8]). Porter QC DCJ dispensed with that matter in stating that the respondent’s conduct didn’t comprise acts of domestic violence and noting the respondent’s actual willingness to return the belongings (see [13]). The second point was that the emails relating to the couple’s daughter and her recent experience in hospital indicate the respondent was involved in acts of domestic violence. After examining the relevant extracts in the circumstances of the case, Porter QC DCJ could see no way in which they would amount to domestic violence on the respondent’s part as defined in the DFVPA.

Finally, his Honour couldn’t see a way in which it could be concluded there was perjury arising out of the proceedings before the Magistrate.

CPD v Ivamy & Anor [2018] QDC 244 (5 December 2018) – Queensland District Court

‘Appeal against protection order’ – ‘Family law’ – ‘Necessary or desirable test’

Appeal type: appeal against a protection order.

Facts: On 28 October 2015, in seeking parenting and property orders, the second respondent brought Family Court proceedings against the appellant. An incident on 1 November 2015 led to the making of a temporary protection order on 3 November 2015; the second respondent and the couple’s two children were named as the aggrieved. The order included the respective usual conditions: a “no contact” condition and an “ouster” condition under ss 56, 57 and 63 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [21]). There was, however, an exception that allowed for communication via text between the appellant and second respondent with the appellant’s mother acting as the conduit between them (see [21]). The appellant soon applied to vary the order to remove the children’s names ([22]). The application was heard by the Magistrate on 9 December 2015; the second respondent consented to the variation but the police prosecutor denied ([24]). On 18 February 2016, following a mediation in the Family Court proceedings, a resolution as to the parenting and property orders was reached. 11 days later, final consent orders were made by the Family Court to the effect that the original exception to the order was removed and replaced with an allowance for direct communication via email. Both parties also agreed to try to remove the protection order. However, the police prosecution refused the second respondent’s application to remove the order. On 11 March 2016, the domestic violence hearing listed to commence on 14 March 2016 was adjourned so as to provide the appellant with the opportunity to make submissions for the discontinuance of the order. After a four-day summary trial, extending over March and April 2017, the Magistrate gave ex tempore reasons on 10 November 2017 and ultimately granted a five-year protection order against the appellant (see [34]-[47]).

Issues: the appellant’s grounds of appeal were two-fold. First, the Magistrate erred in finding that the emails sent by the appellant’s mother and the conduct of the trial by his counsel constituted further acts of domestic violence. Second, the protection order was not necessary or desirable to protect the second respondent and the children from the appellant.

Decision and reasoning: appeal allowed and the protection order was therefore set aside and the matter was remitted to another Magistrate for re-hearing.

His Honour, after reviewing the exchange of emails between the appellant’s mother and second respondent, concluded that the Magistrate’s finding that the appellant was behind the tone and wording of the emails was based on speculation and not open on the evidence (see [50]-[57]). As to the second part of this ground of appeal, his Honour expressed the view that counsel is entitled to exercise their discretion on how to handle a matter and the Magistrate’s characterisation of the appellant’s counsel’s cross-examination of the second respondent as an act of domestic violence was erroneous. The first ground of appeal was therefore allowed.

The second ground of appeal was allowed. His Honour felt that the Magistrate, in coming to their finding on the necessary or desirable condition, failed to consider the material matters such as the fact that the tension between the Magistrate’s courts undertakings and the Family Court had resolved in April 2017 and the appellant’s mother was no longer acting as a conduit and thereby no longer “inflaming” the relationship (see [66]). Accordingly, his Honour concluded that the Magistrate erred in granting the protection order.

NVZ v Queensland Police Service [2018] QDC 216 (12 November 2018) – Queensland District Court

‘Breach of domestic violence order while in custody’ – ‘Factors affecting risk’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Threat to kill’

Charges: Contravening a domestic violence order x 1.

Appeal type: Appeal against sentence.

Facts: During proceedings before the Magistrates Court in which a temporary protection order was made, the appellant threatened to kill the aggrieved and her children. The appellant pleaded guilty to one charge of contravening a domestic violence order. He was sentenced to nine months’ imprisonment with an immediate parole eligibility date and 36 days of pre-sentence custody declared as time served. The appellant appealed against the sentence on the basis that it was manifestly excessive.

Issues: The appellant submitted that the sentence was excessive having regard to his psychiatric condition, the principles of totality and the comparable case tendered by defence which, in combination with his personal circumstances, supported a shorter head sentence.

Decision and reasoning: The appellant relied on R v Goodger [2009] QCA 377 as justification for a reduction in sentence because of his reduced moral culpability. However, that case was not authority for the proposition that the sentence must be reduced by reason of a psychiatric condition [50]. Kefford DCJ held that there was no compelling evidence that the appellant’s condition at the date of sentencing meant that continued incarceration would have more of an impact on the offender than it would on a person of normal health. There was nothing to suggest that there was a serious risk that imprisonment would have adverse effects on the appellant’s mental health. Accordingly, the sentence imposed was not excessive in the circumstances, even though the offending occurred at a time when the appellant could not act on the threats made (as he was in custody) ([71]).

The appellant’s criminal history illustrated his general disregard for the law and court orders. An aggravating circumstance was the fact that he offended whilst in the confines of a court room, demonstrating disrespect not only for the complainant but also the Court ([72]). The sentencing principle of protection to the Queensland community from the offender was significant, given the appellant’s vulgar and bold threats to the aggrieved in the presence of the Court. No submissions were made that indicated that the appellant had taken steps towards rehabilitation. The Court made reference to Singh v Queensland Police Service [2013] QDC 037, but did not regard that the decision was evidence that the sentence in the present case was excessive. That case was distinguishable because there were no prior convictions for violence or contraventions of a domestic violence order. It also did not involve the aggravating feature of a threat to kill delivered to the aggrieved and her children in the presence of the court.

Caddies v Birchell [2018] QDC 180 (4 September 2018) – Queensland District Court

‘Assault’ – ‘Bail’ – ‘Extra-curial punishment’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Assault occasioning bodily harm x 1.

Appeal type: Appeal against sentence.

Facts: The appellant was convicted of assault occasioning bodily harm (domestic violence offence), following a two-day trial. Prior to sentencing, he lodged an appeal against conviction. Subsequently, the Magistrate sentenced the appellant to 18 months’ imprisonment on the basis that the appellant serve one half of that term in prison. The appellant appealed against this sentence and was granted bail pending the hearing. The grounds of appeal included that the sentence was manifestly excessive and that the Magistrate failed to (1) identify whether he took into account the extra-curial punishment the appellant received during the offence, in particular the broken foot caused by the complainant; (2) indicate how that extra-curial punishment was taken into account in the sentencing process (if he did take it into account); and (3) consider the appellant’s offer of compensation.

Issues: Whether the sentence was manifestly excessive; Whether the sentencing discretion should be re-exercised to take into account the appellant’s injuries; Whether the appellant’s injuries are capable of constituting extra-curial punishment; Whether the sentencing discretion should be re-exercised to take into account the offer of compensation.

Decision and reasoning: The Court was satisfied that the errors identified vitiated the sentence imposed by the Magistrate. There was no explanation as to the Magistrate’s consideration of extra-curial punishment and how it was taken into consideration with regard to the penalty that was imposed. There was also no explanation as to the basis upon which the Magistrate found that there was a complete lack of remorse. The Court concluded that the Magistrate fell into error when he determined that a sentence of 18 months’ imprisonment was the appropriate penalty. Having referred to comparable cases, such as R v RAP [2014] QCA 228, the Court held that the imprisonment term of 18 months was manifestly excessive. In R v RAP, Justice Wilson held that, in the case of a serious assault in a domestic setting, a sentence of imprisonment for two years or more is, ‘plainly within the proper sentencing range’ and ‘far from excessive’. Similarities between the two cases include the ages of the appellants, their prior criminal records and their otherwise good character ([47]). Although the complainants in both cases suffered physical and psychological injuries, the injuries sustained by the complainant in RAP were more significant. RAP also involved a plea of guilty, whilst this was a matter determined following two days of hearing. Reference was also made to a considerable number of cases with regard to the range that should be considered in relation to a penalty to be imposed, such as R v Pierpoint [2001] QCA 493, R v Johnson [2002] QCA 283, R v Von Pein [2001] QCA 385, R v Fairbrother; ex parte Attorney-General [2005] QCA 105, R v King [2006] QCA 466, R v George [2006] QCA 1 and R v Roach [2009] QCA 360. These cases clearly showed the considerable range of penalties and the need for an independent exercise of discretion. In light of the circumstances of this case, the appeal was allowed, the sentences set aside, the hearing adjourned for sentence on a date to be fixed and the bail enlarged.

RCK v MK [2018] QDC 181 (6 August 2018) – Queensland District Court

‘Adjournment of application for protection order’ – ‘Costs’ – ‘Procedural fairness’ – ‘Protection order’ – ‘Sufficient evidence to justify protection order’

Appeal type: appeal against a protection order.

Facts: At the first hearing of the proceeding, on 9 November 2017, the Magistrate considered it unnecessary to grant a temporary protection order and therefore remanded the matter to 16 November 2017. On that later date, the matter was listed for further mention and management on 18 January 2018. At this hearing, neither the parties nor their representatives were present with the exception of the aggrieved’s representative. Ultimately, the magistrate made a protection order for a period of five years in identical terms to an order made for a separate but related family matter involving the aggrieved and her brother (see [27]).

Issues: the significant grounds of the appeal, which turned upon matters of procedure, were two-fold. First, the Magistrate erred in not adjourning the application under s 39(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). Second, the Magistrate erred in finding that there was sufficient evidence to justify that the appellant had committed domestic violence against the respondent or that a protection order was necessary or desirable under s 37(1)(c) of DFVPA.

Decision and reasoning: the appeal was allowed. The protection order was set aside, the proceeding was remitted to the Domestic and Family Violence Court to be heard and determined according to law, and each party was ordered to bear their own costs in the appeal.

As to the first ground, the material question posed by Morzone QC DCJ was whether the respondent was denied the opportunity to be heard by the application proceedings in circumstances where it had been previously set for mention only. Applying the relevant authority on this particular issue of procedural fairness (see [37]), Morzone noted there was no adequate and reasonable explanation for the respondent’s absence. Furthermore, Morzone QC DCJ outlined six material elements of the case that his Honour believed the Magistrate ought to have considered in deciding whether to proceed to hearing or grant an adjournment (see [40]). In failing to consider these features of the case, the Magistrate was said to have misdirected herself in proceeding to hearing with the consequence that the orders ultimately made were unreasonable (see [41]).

Given the conclusion Morzone QC DCJ reached as to the above ground of appeal, his Honour considered it unnecessary to consider the second ground of appeal (see [43]).

Recognising that it would be inequitable for the respondent to bear the costs of the appellant’s success, Morzone QC DCJ ordered that each party ought to bear their own costs in the appeal (see [53]).

ECW v ECW [2018] QDC 166 (3 August 2018) – Queensland District Court

‘Child welfare’ – ‘Family law issues’ – ‘Hearing of the variation application according to law’ – ‘Lack of preparation’ – ‘Protection order’ – ‘Variation of a temporary protection order’

Appeal type: appeal against variation to temporary protection order.

Facts: A temporary protection order was issued against the applicant (Mr ECW) for the benefit of the respondent (Ms ECW) and the couple’s three children. A protection order was later made before Mr ECW applied to remove two of the children as named persons protected under the order and vary, among others, orders 3 and 8. The acting Magistrate made variations to orders 3 and 8 while dismissing the variation to the persons named in the order. Mr ECW appealed against this decision.

Issues: did the acting Magistrate fail to hear and determine Mr ECW’s application for a variation to the protection order according to law?

Decision and reasoning: the appeal was allowed and the matter was remitted to the Magistrate’s Court, to be heard and determined, according to law.

Horneman-Wren SC DCJ revealed a number of issues with the way in which the acting Magistrate heard and determined Mr ECW’s application.

As observed by his Honour, s 91(2)(a) of DFVPA provides that before a Court can vary a protection order, the court must consider the grounds set out in the application for the protection order. However, his Honour recognises that the opening remark of the Magistrate – “Okay. So, whose application is this?” – demonstrates that the Magistrate hadn’t read the grounds for the application or the materials filed by each party prior to the hearing. His Honour further noted that a plain reading of the transcript would highlight that the Magistrate didn’t read the application or affidavit materials at any stage during the hearing.

Horneman-Wren SC DCJ also recognises that the Magistrate erred in dismissing the proposal to remove the two children from the order on the basis that they were matters for the Family Court and not for her Honour (see [32]). His Honour clarifies that the matter was not a matter for the Family Court but for her Honour (see [33]).

The matter was remitted to the Magistrate’s court, as opposed to Horneman-Wren SC DCJ conducting the appeal as a fresh hearing, since his Honour was of the opinion that Mr ECW was entitled to have his application heard and determined in the Magistrates Court and to have appeal rights. Conducting the appeal as a fresh hearing would mean, by virtue of s 169(2) of the DFVPA, that Mr ECW would not have any such appeal rights (see [38]-[39]).

His Honour did not set aside the Magistrate’s variation of orders 3 and 8 since the parties agreed that those variations ought to remain in the interim ([41]).

JMM v Commissioner of Police [2018] QDC 130 (6 July 2018) – Queensland District Court

‘Appeal against sentence’ – ‘Breach domestic violence order’ – ‘Breach of procedural fairness’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive sentence’

Appeal type: appeal against sentence.

Facts: On 4 August 2016, a protection order was made under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) against the appellant for the benefit of the aggrieved, her de facto partner, and her three children. The order only contained the standard conditions pursuant to 56 of DFVPA including a condition that the appellant must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence. On 8 November 2018, one of the appellant’s children verbally provoked the intoxicated appellant and pointed a knife at her. The aggrieved disarmed the child, kicked him in the bottom and chased him across the street. Two witnesses recount the aggrieved and appellant hurling verbal abuse at the child. The appellant’s conduct fell within the definition of “domestic violence” under s 8 of the DFVPA since it could be classified as “emotionally or psychologically abusive” (see [45]). Accordingly, the appellant was later charged and convicted of contravention of the protection order in the Magistrate’s court. She was sentenced to 3 months imprisonment. The appellant appealed against this sentence.

Issues: the grounds of the appeal were two-fold: sentence was manifestly excessive and there was a breach of procedural fairness in the magistrate not inviting submissions on imprisonment.

Decision and reasoning: appeal allowed and the sentence was therefore set aside.

The second ground of appeal was allowed. His Honour stated that the magistrate erred in denying the appellant’s solicitor the opportunity to address her on the appropriateness of the sentence of imprisonment. Denying this opportunity and imposing the sentence nonetheless constituted a breach of the rule of natural justice (see [50]). This error, amongst other errors in the Magistrate’s exercise of the sentencing discretion, lead his Honour to set aside the sentence. Accordingly, it was necessary for the appellate court to exercise the sentencing discretion afresh, unless doing so lead to the conclusion that no different sentence should be passed (see [14]).

On the basis of the Court’s independent exercise of discretion and analysis of relevant cases, the sentence imposed was considered excessive. The respondent relied upon PFM v Queensland Police Service [2017] QDC 210 and TZL v Commissioner of Police [2015] QDC 171 in their submission that the sentence was appropriate since the offending in question was more serious than in each of those cases that yielded similar sentences (see [53]). In response, his Honour stated that the offending was not objectively more serious than in PFM and TZL and is not truly comparable and therefore of little assistance (see [54]-[58]). At the discretion of his Honour, two recent analogous cases were then considered. Taking into account those decisions and the material facts of the case, namely that the contravention involved no violence and was limited to a single instance of provoked verbal abuse, his Honour concluded that the sentence was outside the permissible sentencing range for the offender (see [64]-[65]) and ordered a sentence of probation for six months.

Queensland Police Service v JSB [2018] QDC 120 (28 June 2018) – Queensland District Court

‘Evidence’ – ‘Fines’ – ‘Following, harassing and monitoring’ – ‘Sentencing’ – ‘Sentencing options’

Charges: Contravention of a domestic violence order x 1; Possession of a dangerous drug x 1; Breach of a bail condition x 1

Appeal type: Appeal against sentence; Appeal by way of rehearing on the record

Facts: The respondent and appellant were in a relationship. The respondent pleaded guilty to three charges, one of which was contravention of a domestic violence order. He was fined $1,000.

Issues: Whether the fine of $1,000 was manifestly inadequate.

Decision and Reasoning: Fantin DCJ dismissed the appeal. Her Honour considered the respondent’s personal circumstances and criminal history, which included 28 breaches of domestic violence orders, 18 breaches of bail conditions and other court orders ([20]). Whilst the respondent’s previous breaches of domestic violence orders were clearly relevant and increased the need for personal and general deterrence, her Honour found that it should not outweigh the low level of gravity of the offence. Taking into account the relationship between the respondent and appellant, the fact that the contravention of the domestic violence order did not involve violence and was limited to one instance of verbal abuse, that the respondent was not charged with any other offence arising from the contravention, the respondent’s early plea and cooperation with police, that the respondent had spent three days in pre-sentence custody, the activation in full of a suspended sentence of two months’ imprisonment, it was open to the Magistrate to impose the fine of $1,000 for the contravention offence ([73]). She did, however, consider that the sentence may be regarded as generous and another judicial officer may have structured the sentences differently.

ATJ v SLK [2018] QDC 191 (23 April 2018) – Queensland District Court

‘Evidence’ – ‘Protection order’

Charges: Imposition of a domestic violence order x 1.

Appeal type: Appeal against imposition of a domestic violence order.

Facts: The respondent applied for a domestic violence order based on the appellant’s alleged behaviours, dating back several years and including a time prior to which a previous order was made. The application was served on the appellant two days prior to the hearing and the appellant did not attend the hearing. The only material placed before the Magistrate was the application itself. No oral evidence was given. The order was made. The appellant appealed against the decision to make the domestic violence order.

Issues: Whether the decision to make a domestic violence order could be set aside.

Decision and reasoning: Farr SC DCJ allowed the appeal, set aside the decision, and remitted the matter to the Magistrates Court. Whilst it appeared unlikely that the behaviour that occurred since the cessation of the previous order could justify and satisfy the test of domestic violence, even if that was the case, the Magistrate would need to take account of that prior behaviour to determine whether that might constitute domestic violence of a continuing nature, such that it is appropriate to make a second order based upon the same evidence. This was a question for that court to determine after hearing all of the appropriate evidence and submissions, and his Honour found that the present court was not in the position to make that decision ([19]).

S v T [2018] QDC 49 (29 March 2018) – Queensland District Court

‘Fair hearing and safety’ – ‘Management of application proceedings’ – ‘Protection order’ – ‘Systems abuse’

Case type: Application for costs after an appeal against a domestic violence order.

Facts: A protection order was made naming the respondent (T) as the aggrieved and the appellant (S) as the respondent. S successfully appealed against the order. S sought an order for T to pay her costs of the original hearing and the appeal ([1]).

Issues:

1.

Whether s 157(2) Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) applies to an award of costs after an appeal against a domestic violence order.

2.

Whether a costs order should be made in favour of S.

Decision and Reasoning: Richards DCJ made no order as to costs.

In relation to the first issue, the usual position is that each party to a proceeding for a domestic violence order bears their own costs unless the application for the protection order is ‘malicious, deliberately false, frivolous or vexatious’ (s 157(2) DFVPA). There is no equivalent section in the DVFPA in relation to appeals. However, r 142(2) DFVPA provides that the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) applies to appeals. Rule 681 UCPR states that costs follow the event unless the court orders otherwise. Richards DCJ held, applying GKE v EUT [2014] QDC 248, that the discretion to award costs should be exercised in light of s 157(2) DVFPA ([5]).

In relation to the second issue, Richards DCJ noted that there was some suspicion that T made the application for a domestic violence order in retaliation for S complaining to the police about him or to have some sort of leverage over her. However, his Honour was unable to find that the application was malicious, deliberately false, frivolous or vexatious ([6]).

MKA v WKT [2018] QDC 73(28 March 2018) – Queensland District Court

‘Change of venue’ – ‘Fair hearing and safety’ – ‘Legal representation and self-represented litigants’ – ‘Management of application proceedings’ – ‘People with mental illness’ – ‘Protection order’ – ‘Victim experience of court processes’

Appeal type: Appeal against domestic violence order.

Facts: A domestic violence order was made naming the respondent (WKT) as the aggrieved and the appellant (MKA) as the respondent ([2]). MKA appealed against the decision to grant the protection order ([3]). WKT applied to change the venue of the appeal from Cairns to Southport.

Issues: Whether the application for change of venue should be granted.

Decision and Reasoning: The application was granted.

WKT applied to transfer the proceedings on the grounds that:

•

she ordinarily resides in Coolangatta;

•

the proceedings at first instance were heard at Coolangatta;

•

she has been diagnosed with adjustment disorder with anxiety and depressed mood as a result of the domestic violence; and she has been unable to engage legal representation in Cairns ([12]); and

•

she cannot afford to pay her legal representation at the Gold Coast, but was hopeful of obtaining Legal Aid assistance ([13]).

MKA opposed the transfer on the basis that:

•

his legal representatives are based in Cairns;

•

he was put to the expense of flying and accommodating them at Coolangatta in the first instance proceeding;

•

there is no evidence that a timely hearing date would be available in Southport ([14]).

Morzone DCJ emphasised that the exercise of discretion to grant the transfer is governed by the objectives of the Domestic and Family Violence Act 2012 (Qld), one of which is to ‘…maximise the … wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives’. His Honour placed emphasis on WKT’s mental health condition, which is likely to be aggravated by the appeal proceedings ([25]-[26]).

ETB v Commissioner of Police [2018] QDC 26 (6 March 2018) – Queensland District Court

‘Aboriginal and Torres Strait Islander people’ – ‘Breach of protection order’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sentencing - double jeopardy’ – ‘Totality’

Charges: Contravention of domestic violence order (‘DVO’) x 2; Common assault x 1.

Appeal type: Appeal against sentence.

Facts: The appellant and respondent were in a relationship and raised 5 children together ([14]). The first contravention of DVO occurred when the appellant swore at the appellant and threatened to slice his own throat (‘June contravention of DVO’). The second contravention of DVO occurred when the appellant verbally abused the appellant (‘September contravention of DVO’). The aggrieved slapped the appellant and told him to leave. The common assault charge occurred when, in retaliation for the slap, the appellant punched the aggrieved in the head and ear (together, ‘September charges’) (see [10]).

The appellant was sentenced to 3 months’ imprisonment for the June contravention of DVO, 9 months’ imprisonment for the September contravention of DVO, and 9 months’ imprisonment for the common assault ([2]). The magistrate declared 39 days’ pre-sentence custody and set a parole release date after 2 weeks ([4]).

Issues: The appellant appealed on 4 grounds in relation to the September charges (see [7]-[8]):

•

first, that the sentence was manifestly excessive;

•

second, that the sentencing magistrate erred by failing to have proper regard to principles of totality;

•

third, that the sentencing magistrate erred by incorrectly applying relevant case law; and

•

fourth, that the magistrate erred by contravening s 16 of the Criminal Code 1999 (Qld) by imposing imprisonment on each of the offences of contravention of a domestic violence order and common assault.

Decision and Reasoning: The appeal was allowed.

In relation to the fourth ground of appeal, the Dearden DCJ held that the September charges could be appropriately separated, because the contravention of DVO was in relation to the verbal abuse, and the common assault was in relation to the physical punch ([18]). However, this meant that the respondent conceded that sentence of 9 months for solely verbal conduct was manifestly excessive ([20]). District Judge Dearden considered that the appropriate sentence for the September contravention of DVO should be 3 months ([21]).

The remaining issue was whether the sentence of 9 months imprisonment for the common assault charge was manifestly excessive ([23]). Considering case law and mitigating circumstances (the fact that the verbal abuse did not involve threats to harm the aggrieved and the assault was precipitated by the aggrieved slapping the appellant), Dearden DCJ held that the sentence was manifestly excessive ([23]-[30]). The appellant was re-sentenced to 6 months’ imprisonment ([32]).

ACP v Queensland Police Service (No 2) [2017] QDC 293 (8 December 2017) – Queensland District Court

‘Breach of protection order’ – ‘Interpretation of order’ – ‘Ouster order’ – ‘Particularise a charge’ – ‘Return condition’ – ‘Uncertain in its terms’

Charges: Breach of temporary protection order x 1.

Appeal type: Appeal against conviction.

Facts: A temporary protection order was made naming ACP as the respondent and MP as the aggrieved. Condition 4 of the order provided that ACP must vacate the family property, and condition 5 allowed ACP to return to the property to collect belongings in the company of a police officer ([10]). The order did not specify the time by which ACP must vacate the property, but ACP gave evidence that the Magistrate said that ACP must vacate the property ‘straight away’ ([58]).

MP returned to the property 3 days later, to find ACP loading belongings onto a truck. ACP had not yet vacated the property ([20]-[21]). ACP gave evidence that he understood the order to mean that he could vacate the property himself, and only needed police attendance to return to the property ([60]).

The bench charge sheet did not set out the particulars of which condition of the order the defendant was alleged to have contravened ([8]), contrary to s 177(4) of the Domestic Violence and Family Protection Act 2012 (Qld) ([19]).

Issues: Whether the temporary protection order was uncertain in its terms.

Decision and Reasoning: The appeal was allowed, and the conviction was set aside.

Judge Horneman-Wren SC concluded: first, that the charge was not adequately particularised; and second, that the order was uncertain in its terms. First, the charge sheet did not inform the defendant of the factual ingredients of the offence ([72]). Second, even though the order did not provide a timeframe within which ACP was to vacate the property, the Magistrate stated that ‘the order is quite clear on its face and I am satisfied that the appellant was aware that he was to get out straight away’ ([79]). This was an error because ‘straight away’ was not incorporated in the condition ([90]).

ACP v McAulliffe [2017] QDC 294 (8 December 2017) – Queensland District Court

‘Family law issues’ – ‘Necessary or desirable test applied to conditions’ – ‘Protection order’ – ‘Risk of future domestic violence’

Appeal type: appeal against a protection order.

Facts: The male appellant and the female aggrieved person (MP) were in a relationship. Commencing in October 2012, there were a number of ‘instances’ of domestic violence (see [28]-[38]). A temporary protection order was made on 15 February 2016. A year later, on 7 March 2017, a Magistrate made a protection order against the appellant for the benefit of MP and her three sons under the Domestic and Family Violence Protection Act 2012 (Qld)(DFVPA). There were five conditions stipulated under the order; the first and fourth were standard conditions under s 56 of DFVPA:

1.

Appellant be of good behaviour towards the aggrieved and not commit domestic violence against her.

2.

Appellant is prohibited from remaining at, entering or attempting to enter, premises or approaching the premises where the aggrieved lives or works.

3.

Subject to four exceptions, appellant is prohibited from contacting, attempting to contact or asking someone else to contact the aggrieved.

4.

Appellant be of good behaviour towards the named children and not commit associated domestic violence against them and not to expose them to domestic violence.

5.

Appellant is prohibited from contacting the named children subject to the same exceptions applicable under condition 3.

Issue: whether the protection order was necessary or desirable to protect the aggrieved from domestic violence?

Decision and reasoning: the appeal was allowed to the extent that a protection order was made but only with the standard conditions. Conditions 2, 3 and 5 were removed and condition 4 was renumbered as condition 2.

Before considering the issue on appeal, Horneman-Wren SC DC’s observed that the Magistrate did not expressly assess either of the first two steps of the three-step process considered by Morzone QC DCJ in MDE v MLG as the necessary approach to determining the requirement, under s 37(1)(c) of the DFVPA, that “the protection order is necessary or desirable to protect the aggrieved from domestic violence” (see [67]). His Honour then took the opportunity to emphasise the discretionary nature of this requirement and that Morzone QC DCJ’s view on how to determine whether an order is necessary or desirable shouldn’t be seen to mandate those three steps (see [68]-[69]). Indeed, his Honour later recognises that it was sufficiently clear from the Magistrate’s reasons that she answered the first question of the three-stage approach in the affirmative (see [76]-[78]).

In relation to the issue on appeal, his Honour considers the Magistrate’s finding that an order was necessary as unreasonable and reached in error. His Honour opined that evidence of risk of future domestic violence in the absence of a protection order (first step) is not a sufficient basis for concluding that the necessary condition is satisfied (see [80]). However, his Honour regarded the Magistrate’s finding that the protection order was desirable as one that ought to have been made (see [81]). In accordance with the requirement under s 37(1)(c) that the court must only be satisfied with one of the two conditions (see [88]), and as reflected in the orders of this appeal, his Honour therefore agreed with the Magistrate in her decision to make the protection order (see [88]).

Ultimately, it was the terms in which the Magistrate made the order that necessitated modification of the protection order. His Honour noted that under s 57(1) of the DFVPA, before the court may impose other conditions in addition to those set out in s 56, it must be satisfied that the condition is both necessary in the circumstances and desirable in the interests of the aggrieved, named person or the respondent. Having recognised this, his Honour then pointed out that the Magistrate failed to explain that she was satisfied that the imposition of other conditions was both necessary and desirable (see [89]-[90]). The order to remove conditions 2, 3 and 5 of the protection order reflect this view of his Honour that the Magistrate erred in imposing those other conditions.

MEG v Commissioner of Police [2017] QDC 302 (10 November 2017) – Queensland District Court

‘Appeal against sentence’ – ‘Breach domestic violence order’ – ‘Probation’ – ‘Procedural fairness’ – ‘Sentencing’ – ‘Sentencing submissions’

Charges: Contravention of a domestic violence order as an aggravated offence x 1; Assault or obstruction of a police officer as a domestic violence offence x 1; Possession of dangerous drugs x 1; Contravene direction x 1; Contravention of a domestic violence order simpliciter x 1; Authority for controlled drugs x 1; Failure to properly dispose of a syringe or needle x 1.

Appeal type: Appeal against sentence.

Facts: The appellant breached a domestic violence order naming the appellant’s mother as the aggrieved and her son as a named person in the order. The breach occurred when the appellant made threats to kill herself and her son, in the presence of her son ([17]).

The appellant pleaded guilty and was sentenced to six months’ imprisonment for the contravention of a domestic violence order as an aggravated offence and four months’ imprisonment for the contravention of a domestic violence order simpliciter. For the other charges, the appellant was convicted and not further punished ([2]).

At sentence, the Magistrate indicated that he was considering a prison probation order of 2 months’ imprisonment and 12 months’ probation ([5]). After hearing submissions on that sentence, the Magistrate asked the appellant whether she consented to the probation order. MEG asked, ‘what happens if I say no?’ The Magistrate interpreted this question to mean that MEG did not consent to the order, and immediately imposed the four- and six-month sentences of imprisonment ([29]).

Issues: Whether the appellant was denied procedural fairness, and whether the sentences were manifestly excessive.

Decision and Reasoning: The appeal was allowed, and the appellant was re-sentenced to two months’ imprisonment, which was time already served.

Judge Horneman-Wren SC held that the Magistrate erred in construing MEG’s question (‘what happens if I say no?’) as a refusal to consent. Further, the Magistrate erred in sentencing the appellant to a head sentence of six months without inviting further submissions on the sentence ([32]). The Magistrate did not give reasons for why six months was an appropriate head sentence, and did not refer to any comparable cases ([33]).

PFM v Queensland Police Service [2017] QDC 210 (11 August 2017) – Queensland District Court

‘Contravention of domestic violence order’ – ‘Extending protection order’ – ‘History of domestic violence offences’ – ‘Parole’ – ‘Post-separation abuse’ – ‘Re-sentence’ – ‘Totality’

Charges: Contravention of domestic violence order x 1.

Appeal type: Appeal against sentence.

Facts: The complainant had obtained a domestic violence order with the appellant as the aggrieved. The order contained a condition that the appellant was not to have contact with the complainant. In contravention of this condition, the appellant travelled to the complainant’s house, stood outside, and called out to her and her son ([16]). The appellant had a criminal history including 13 breaches of domestic violence orders, spanning 12 years to 2015. The appellant was sentenced to 4 months’ imprisonment.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed for two reasons: first, the sentencing judge erred in not applying the principle of totality; and second, the sentence was manifestly excessive.

In relation to totality, the appellant had previously been sentenced for a failure to appear, and was sentenced to 5 months imprisonment. Since the appellant was on parole, the imposition of the new sentence automatically cancelled his parole. Therefore, the effect of the sentence was to impose a 9-month sentence. The magistrate did not treat the matter in this way, and calculated the parole eligibility date as one third of the 4-month sentence ([40]-[41]).

In relation to the length of the sentence, the sentence was outside the appropriate range. Morzone QC DCJ stated that ‘it seems that the Court allowed the appellant’s previous offending to overwhelm other material considerations and the nature and seriousness of the offending subject of the sentence’ ([42]). The offending conduct was in the lower range, and would not normally attract a sentence of imprisonment. However, the nature of offending in the context of previous past breaches of domestic violence offences warranted a period of one month’s imprisonment ([64]).

The judge determined that the extension of the protection order to was ‘necessary or desirable for the order to regulate the parties’ communication and contact for that period. By that time, the parties’ parental relationship and need for contact will change as the child matures into his early teens.’ [70]

NAS v QPS [2017] QDC 173 (21 June 2017) – Queensland District Court

‘Appeal against sentence’ – ‘Partially suspended sentence’ – ‘People from culturally and linguistically diverse backgrounds’

Charges: Assault occasioning bodily harm whilst armed with an instrument x 1.

Appeal type: Appeal against sentence.

Facts: The appellant and complainant were married and had a 5-month-old baby. The appellant was from Papua New Guinea and was staying in Australia on a tourist visa ([2]). The offence occurred when the appellant became angry and threw an apple at the complainant, struck her with a broomstick, and struck the back of her head while she was holding the baby ([3]).

The appellant pleaded guilty on the following day and was immediately sentenced to 15 months’ imprisonment, suspended after serving a period of 2 months for an operational period of 3 years ([1]). He was represented by a duty lawyer ([5]).

The magistrate stated that the ‘only’ appropriate sentence was 15 months’ imprisonment ([11]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed.

Judge Reid held that the Magistrate erred by stating that 15 months was the ‘only appropriate term’ ([23]). Comparable cases, most relevantly R v Pierpoint [2001] QCA 493, indicated that a lesser sentence was also open ([25]).

On one hand, the offending was serious: it was somewhat protracted, committed against a female partner, and in the presence of a young child. On the other hand, the appellant had no criminal history, the appellant had ceased hitting the complainant before the police arrived, and there was no previous domestic violence order in place ([26]-[27]).

The appellant was re-sentenced to 9 months’ imprisonment, to be suspended in 10 days, after the appellant had completed serving the sentence of 2 months imprisonment ([30]). Had a pre-sentence custody certificate been provided, a wholly suspended sentence could have been imposed ([30]).

LDS v QRR [2017] QDC 199 (15 June 2017) – Queensland District Court

‘Cumulative sentence’ – ‘Manifestly excessive’ – ‘Natural justice’ – ‘Psychologist’ – ‘Sentencing’ – ‘Statistics’ – ‘Wilful damage’

Charges: Contravening domestic violence order x 3; wilful damage x 1; common assault x 1.

Appeal type: Appeal against sentence.

Facts: The complainant was the aggrieved in a domestic violence order taken out against the defendant. The breaches of domestic violence order and common assault charge occurred when the appellant punched and pushed the complainant to the ground on three occasions ([6]). The wilful damage charge occurred when the appellant stomped on her mobile phone while she was trying to contact the police ([7]). Following a plea of guilty, the Magistrate imposed cumulative sentences totalling 18 months’ imprisonment, with a parole release date after 6 months ([3]).

Issues: There were three grounds of appeal: first, that the Magistrate placed disproportionate weight on general community deterrence; second, that the Magistrate disregarded the appellant’s mental health issues; third, that the Magistrate erred in ordering the sentences to run cumulatively without consulting either party.

Decision and Reasoning: The appeal was allowed.

In relation to the first ground, the Magistrate described the appellant’s offending as a ‘reign of terror heaped upon the complainant’ ([16]). District Court Judge Muir described this statement as an exaggeration because the violence was at the lower end of the scale and the offences were committed within a short time period ([31]). The Magistrate also referred to statistics that 700 women would be killed in the next 10 years if nothing was done about domestic violence ([19]). District Judge Muir held that using statistics in this way indicated that the Magistrate did not place sufficient weight on the appellant’s mitigating factors.

On the second ground, the appellant asserted that he suffered from depression, post-traumatic stress disorder and schizophrenia. However, the psychologist’s letter tendered in evidence did not mention those conditions. The Magistrate enquired as to who gave the diagnoses, but more information could not be tendered ([27]). District Judge Muir held that the Magistrate was entitled to place little weight on the diagnoses.

On the third ground, Muir DCJ held that it was an error for the Magistrate to not invite submissions about the possibility of cumulative sentences ([36]).

On the whole, Muir DCJ concluded that the sentence was outside the appropriate range ([47]). The appellant was re-sentenced to an overall head sentence of 9 months’ imprisonment, with the appellant to be released immediately on parole after having served approximately 4 months in prison ([50]).

JC v KP [2017] QDC 175 (26 May 2017) – Queensland District Court

‘Consent’ – ‘Protection order’ – ‘Weapons licence’

Appeal type: Appeal against decision to grant protection order.

Facts: The appellant and respondent were brothers. A Magistrate ordered that a protection order be made against the appellant by consent (p 2), with the respondent as the aggrieved. The Magistrate represented to the appellant that the order would not affect the appellant’s weapons license (p 3). In fact, a protection order would limit the applicant’s weapon’s license for five years (p 5). The appellant appealed the decision on the ground that the appellant was induced to consent to the order being made (p 2-3).

Issues: Whether the order should be set aside.

Decision and Reasoning: The order was set aside. Judge Long of the District Court concluded that the appellant did not understand the full consequences of the order being made, and the matter was remitted to a contested hearing (p 6-7).

CDX v Queensland Police Service [2017] QDC 96 (5 April 2017) – Queensland District Court

‘Conflating factual issues’ – ‘Contravention of domestic violence order’ – ‘Exposing children’ – ‘Text messages’

Charges: Contravention of domestic violence order (DVO) x 1; Possess restricted items x 1; Possess explosives x 1; Assault or obstruct police officer x 1.

Appeal type: Appeal against sentence from Magistrates Court.

Facts: The appellant was subject to a DVO with the complainant named as the aggrieved ([12]). The appellant sent threatening text messages to the complainant, and took their child out of school ([12]). This formed the basis of Charge 1, contravening a DVO. When the police arrived at the appellant’s house, he refused to cooperate, and appeared to reach for a knife while holding the child ([12]). This formed the basis of Charge 4, obstruct police officer.

The appellant was sentenced to six months’ imprisonment with a non-parole period of two months ([1]).

Issues: The defendant appealed on the grounds that: the sentence was manifestly excessive; the Magistrate took irrelevant matters into consideration by relying on the documentation from the domestic violence order; the Magistrate fettered her objectivity; and the Magistrate conflated the facts of Charge 1 and Charge 4 ([2]-[3]).

Decision and Reasoning: The appeal was allowed. Horneman-Wren SC DCJ concluded that the Magistrate erred in conflating the factual issues in charges 1 and 4 ([42]). The other grounds of appeal were not made out. Horneman-Wren SC DCJ considered that a shorter sentence would have been appropriate, but since the appellant had been in custody for 7 weeks, his Honour recorded a conviction and did not further punish the appellant ([47]).

CED v HL [2016] QDC 345 (22 December 2016) – Queensland District Court

‘Children’ – ‘Protection orders’ – ‘Temporary protection order’ – ‘Vary’

Appeal Type: Appeal against variation to Temporary Protection Order.

Facts: A temporary protection order was made against the appellant which stipulated his former female partner, the respondent, as the protected person. The appellant and the respondent had a son together, K. The terms of the temporary protection order were varied twice. The first variation occurred after the respondent took K out of school (against K’s wishes). The appellant arrived to pick up K, at K’s request. An argument ensued between the appellant and the respondent. The temporary protection order was varied to name K as a protected person.

Second, the respondent reported that her father (the maternal grandfather of K) had made threats against the appellant in the presence of K. The temporary protection order was varied to prevent the appellant from permitting, encouraging or facilitating in-person contact between K and the grandfather. The appellant’s position was that he had never been threatened by the respondent’s father in that way and that K wanted to see his grandfather.

The appellant applied to a magistrate to have these terms varied and removed. The application was refused.

Issue/s: Whether the variations ought to be allowed?

Decision and Reasoning: The appeal was allowed. Kent J held that there were insufficient reasons given for the orders made refusing the variations. This was an error of law and the decision had to be set aside on that basis. Further, there was an insufficient evidentiary basis to prove that either of the contested conditions were necessary or desirable. First, K’s presence at the incident between the appellant and respondent was purely incidental. It was upsetting but no more upsetting than other separate actions of the respondent. It was not prolonged or dangerous and not wilfully brought about, or persisted with, by the appellant. Second, the grandfather’s threats against the appellant were out of the appellant’s presence and not initiated by the appellant. They were unlikely to be repeated and did not involve any violence against K. This was too tenuous to substantiate the challenged conditions (see [38]).

RWT v BZX [2016] QDC 246 (30 September 2016) – Queensland District Court

‘Costs’ – ‘Cross-application’ – ‘Cross-orders’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse’

Appeal Type: Appeal against a protection order and an order for costs.

Facts: The male appellant and the female respondent were married in India. It was an arranged marriage. They lived in Australia with their son and the appellant’s parents. Each applied for a protection order against the other, making serious allegations which were denied. There were also proceedings in the family court at the time of the protection order hearing.

The respondent’s application and affidavit set out particulars of domestic violence under several headings: verbal abuse, controlling behaviour, psychological abuse using the child, sexual abuse, financial abuse, threats and intimidation. She perceived an alliance against her (the appellant, his parents and the son). She annexed to her affidavit a transcript of a recording she made as she was packing to leave the family home to provide evidence of this. Conversely, the appellant alleged that the respondent had assaulted the child. He had previously taken the child to a doctor and reported the complaint.

The magistrate made an order in favour of the wife. He dismissed the appellant’s application and also made an order for costs. In doing so His Honour stated:

‘Sadly what I say in these proceedings can’t be used in the Family Court. These proceedings are private proceedings. I wish they could. I wish the Family Court could hear what I think about the reliability of [the appellant]. It’s been a scurrilous case. On my view, his application has been deliberately false and vexatious. I can say that, in 12 years as a magistrate, I have never ordered costs in a domestic violence case before. I intend to today for the first time in many hundreds of cases’.

Issue/s: Some of the grounds of appeal included –

1.

There was no proper basis on the evidence for the learned Magistrate to make a protection order under s 37 of the [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’);

2.

There was no proper basis for the learned Magistrate to order costs under s 157 of the Act against the appellant in favour of the respondent.

Decision and Reasoning: The appeal was dismissed.

Was there a proper basis for the order made against the appellant? (see [4]-[34])

1.

Devereaux SC DCJ held that it was open to the magistrate to conclude that the appellant had committed acts of domestic violence against the respondent: s 37(1)(b) of the Act.

(a)

The magistrate was correct to use the transcript of the recording made by the respondent as proof of her case and as relevant to the credibility of the appellant. The transcript showed the manner in which the appellant treated the respondent. Further, the ‘startling’ language and attitude of the child towards his mother in the transcript gave rise to the inference that the appellant had treated the respondent in such a way over a lengthy period in front of the child: see [12].

(b)

The magistrate, correctly, interpreted the transcript as confirmation of the respondent’s claim that the discussion was principally about money – the appellant’s demand that she deposit all her wages into the joint account: see [13]. Evidence of the respondent’s friend further corroborated the respondent’s evidence about financial abuse: see [18].

(c)

Devereaux SC DCJ agreed with the magistrate’s analysis of the transcript of the recording (see [14], [29]). It provided evidence of threats by the appellant, that the appellant would shout at her in front of the child, and that the child had been ‘coached and poisoned against his mother’ (see [15]-[24]).

(d)

His Honour further held that: ‘the passages I have referred to in this judgment from His Honour’s reasons reduce to the finding that his Honour rejected utterly the credibility of the appellant and accepted completely the credibility and reliability of the respondent. There is nothing in the materials which objectively suggests that those findings were not open to His Honour or that I should draw different inferences from facts in the record’ at [29].

2.

Devereaux SC DCJ also held that it was open to the magistrate to conclude that the protection order was necessary or desirable to protect the respondent from domestic violence: s 37(1)(c) of the Act.

(a)

Devereaux SC DCJ noted the magistrate’s conclusions about the appellant’s application, namely that it was ‘an outrageous case and pure nasty, vindictiveness on this woman because she wouldn’t hand over her money to a controlling, bullying husband. I don’t believe she has been anything other than a good mother to her child. I dismiss the [appellant’s] application …, as I said, but I do intend to make an order in favour of the wife’.

(b)

The magistrate continued: ‘[i]n my view, as I mentioned during submissions, the fact that property settlements in family law matters are still contentious and, indeed, the mother still isn’t even getting face-to-face contact with her own child at the moment, there is every opportunity for the husband to continue his bullying behaviour to try and manipulate the wife into caving in to his demands about the child, about financial affairs, and anything else that he might have a penchant to do in his bullying behaviour. She is absolutely in need of protection. He needs to be kept well away from her’ (see [26]).

(c)

Devereaux SC DCJ held that these statements could be properly understood as the magistrate’s reasons for being satisfied that the protection order was ‘necessary or desirable to protect the aggrieved from domestic violence’ (see [28]). This reasoning, that it was necessary or desirable for an order to protect the respondent from domestic violence in the setting of the continuing family court proceedings, was correct: GKE v EUT (see [32]).

Devereaux SC DCJ noted generally that ‘[i]t is advisable that a magistrate make specific findings with respect to the matters set out in s 37 of the DVFP Act’ (see [27]). However, here, ‘the manner in which His Honour reached and set out conclusions is sufficiently clear to be amenable to examination and review’ see [28].

•

The appeal against the costs order (see [35]-[68])

Devereaux SC DCJ held that the magistrate was entitled to thoroughly reject any of the appellant’s assertions. Having done so, it was open to the magistrate to conclude that the appellant’s application was brought to vex the respondent – ‘it was deliberately false and vexatious’, brought because ‘she wouldn’t hand over her money to a controlling bullying husband’’ (see [65]-[66]).

WJ v AT [2016] QDC 211 (19 August 2016) – Queensland District Court

‘Cross-application’ – ‘Cross-order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Purpose of the domestic and family violence protection act 2012 (qld)’ – ‘Risk’

Appeal Type: Appeal against the making of a protection order against the appellant and appeal against the decision of the Court to dismiss the appellant’s application for an order.

Facts: The male appellant and the female respondent were in a relationship. They had two children together, DJ and MJ (aged 3 and 2), and another daughter, LS (aged 8), from the respondent’s previous relationship. The appellant had been abusive to LS in the past. The parties had separated and the three children lived with the respondent. The respondent and the appellant each applied for a protection order against the other. There were also contact/care proceedings in the Federal Circuit Court.

The respondent’s case was that on 14 August 2015 the appellant spoke loudly and in an insulting way towards her. Many, if not all, of these statements were made in front of DJ and MJ, upsetting the children. The appellant rubbed his beard against the respondent’s eye area and continued to verbally abuse her. The respondent tried to ignore him. He took her phone and ran outside. There was a struggle. He pushed the respondent, she was thrown onto the car bonnet and the appellant sustained some scratches (see [6]-[32], [112]-[126]). Conversely, the appellant alleged that the respondent ‘went berserk’, pushed him around the balcony, grabbed and attacked him, and he ran away from her. She then physically assaulted him. He sustained scratches and a ripped shirt. He also alleged he was a victim of economic abuse (see [33]-[53]).

The Judicial Registrar (JR) made a protection order against the appellant in favour of the respondent. The JR dismissed the cross-application by the appellant (see [56]-[58]).

Issue/s: One of the grounds of appeal was that the decisions of the Judicial Registrar were made against the weight of the evidence, namely the making of a protection order against the appellant in favour of the respondent; including the two children, MJ and DJ, in the order; including the child LS in the order; and the refusal to make a protection order against the respondent in favour of the appellant.

Decision and Reasoning: The appeal was dismissed.

•

Should an order have been made against the appellant?

First, Smith DCJA held that a number of the acts committed by the appellant amounted to domestic violence as per s 37(1)(b) of the Act Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) – ‘the rubbing of the beard was physically abusive, the taking of the phone was physically abusive and the insulting words about the first respondent was in my view emotionally or psychologically abusive’ (see [131]).

Second, in considering whether a protection order was ‘necessary or desirable’ to protect the aggrieved as per s 37(1)(c), Smith DCJ noted that the reasoning of McGill SC DCJ in GKE v EUT applied here. McGill SC DCJ said:

‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’(see [32]-[33]).

Smith DCJA noted that ‘necessary’ is defined by the dictionary as ‘requiring to be done, achieved; requisite, essential’ and desirable is defined as ‘worth having’. There is therefore a ‘lower threshold when one is concerned with the term ‘desirable’. But both are focused on the need to protect the aggrieved from domestic violence’ (see [137]-[139]).

His Honour ultimately agreed with the JR’s reasoning that an order was both necessary and desirable to protect the aggrieved from respondent. At [140]:

‘There is no doubt that the parties are embroiled in Federal Circuit Court proceedings. There are children of the relationship about whom contact/care arrangements will need to be made. These will need to be dealt with in a civilised and appropriate fashion. I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence’.

•

Should MJ and DJ have been included in the order?

Section 53 of the Act provides that the court may name a child ‘if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from (a) associated domestic violence or (b) being exposed to domestic violence committed from the respondent’. Section 10 of the Act defines the meaning of ‘exposed to domestic violence’.

Smith DCJA was satisfied that the children were exposed to domestic violence (see [148]). Further, His Honour stated: ‘I do not consider there is any requirement they understand the words spoke, particularly bearing in mind they were spoken aggressively’(see [149]). Additionally, it was also necessary and desirable for the children to be included in the order because, as the JR found, there was a continued risk of exposure to domestic violence in the future. This was because the parties would continue to be in contact through the children of the relationship and proceedings were on foot in the Federal Circuit Court (see [150]-[151]).

•

Should LS have been included in the order?

His Honour held that:

‘[I]n all of the circumstances, bearing in mind that there is a real possibility of contact between the appellant and LS, and bearing in mind the acrimonious situation between the parties and the events of 9 July 2015 [when the appellant was physically abusive towards LS] and 15 August 2015, I consider the JR was right to add LS to the order to avoid the risk of her being exposed to domestic violence’ at [159].

•

Should an order have been made against the first respondent?

In this regard, Smith DCJA noted the respondent had tried to ignore the appellant and that the scratches sustained by the appellant could have been caused in self-defence or accidently by the respondent. In this regard, His Honour quoted the explanatory notes to the 2011 Bill at [166]:

‘Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship cannot be a victim and perpetrator of this type of violence at the same time. A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken’ (His Honour’s emphasis).

In light of this, Smith DCJA held that there was no ‘physical abuse’ of the respondent by the appellant. Also, on the totality of the evidence, the respondent was most in need of protection (see [167]-[172]).

EAV v Commissioner of Police [2016] QDC 237 (16 September 2016) – Queensland District Court

‘Alternatives to imprisonment’ – ‘Community based orders’ – ‘Contravention of a domestic violence order’ – ‘Cross-application for mutual protection orders’ – ‘Magistrates’ – ‘People with mental illness’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Previous breaches of domestic violence protection order’ – ‘Protection orders’ – ‘Sentencing’

Charge/s: Breach of a domestic and family violence order.

Appeal Type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. They were subject to a domestic violence protection order on 8 July 2015 for a period of two years. These were cross-orders. In October 2015, the appellant breached these orders and was fined $500. On 20 November 2015, police attended their address after reports of a dispute. The appellant told police that he and the complainant were in a heated argument, which the complainant had initiated. The appellant said he bumped into the complainant, causing her to stumble. The complainant slapped the appellant. He then grabbed the complainant, threw her on the bed, and restrained her with his body weight. He released her and the argument continued until police arrived.

In sentencing, the magistrate expressed significant concern about the chronology of events namely, that the domestic violence order had been made in July 2015, breached by the appellant on 27 October 2015, the appellant was sentenced for that breach on 11 November 2015, and he then breached the domestic violence order again on 20 November 2015. The appellant was sentenced to three months’ imprisonment, wholly suspended, with an operational period of 12 months.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. Dearden DCJ noted that the magistrate failed to give appropriate recognition to a number of relevant factors, namely at [22]:

•

‘there were mutual, cross-orders for domestic violence in place at the time of the offending;

•

‘the initial violence in the incident was, in fact, the complainant slapping the appellant;

•

‘the appellant’s violence, in response, was relatively low level (although nonetheless unacceptable);

•

‘the appellant had been in receipt of medical care in respect of a significant mental health issue, and importantly, had undertaken the Anglicare Living Without Violence Program, which was a substantial program, indicating on his part a significant willingness to change;

•

‘the appellant had expressed his remorse to police immediately after the event’.

His Honour noted that ‘magistrates dealing with breaches of domestic violence are, of course, under significant time pressures and the learned magistrates sentencing remarks are brief’. However, His Honour held that, ‘the transcript does not indicate that the learned magistrate in any way considered alternatives other than imprisonment in respect of this matter, and appears only to have taken into account the chronology (which is obviously significant) and to some very minor extent (referenced at the conclusion of her sentencing remarks) the steps that the appellant had taken in respect of receiving assistance from Dr Calder-Potts and Anglicare’ (see [24]).

The appellant was resentenced to 18 months’ probation with a special condition that he continue treatment and complete 100 hours of community service. No conviction was recorded.

IFM v Queensland Police Service [2016] QDC 140 (17 May 2016) – Queensland District Court

‘Breach bail condition’ – ‘Contravention of a domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Repeated contraventions’ – ‘Sentencing’

Charge/s: Contravention of a domestic violence order x 2, breach bail condition x 2, and a further contravention charge.

Appeal Type: Appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship. In relation to the first contravention of a domestic violence order, on 18 March 2015, the appellant pushed the complainant over and punched her to the jaw. No physical injury was alleged. After being arrested and charged, the appellant was released on bail. The second contravention of a domestic violence order occurred on 30 May 2015. The appellant grabbed the complainant by the throat and hit her, knocking her to the ground. He kicked her, dragged her to her feet and verbally abused her. The appellant then dragged her to a nearby park, knocking her to the ground again, hit her in the head, picked her up and continued to drag her. No physical injury was alleged. A head sentence of 15 months imprisonment was imposed on the second contravention of domestic violence order.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Counsel for the appellant submitted that a sentence of 12 months imprisonment with a release after four months was appropriate in light of the authorities of PMB v Kelly [2014] QDC 301 and Singh v QPS [2013] QDC 37. Durward SC DCJ distinguished both of these cases (see [20]).

Here, Durward SC DCJ was satisfied that a sentence of 15 months imprisonment was not manifestly excessive. This was in light of a number of factors. The appellant’s conduct involved significant aggravating circumstances namely, the first contravention of a domestic violence order was committed two weeks after the expiration of an earlier imposed sentence, the second contravention charge occurred while the appellant was on bail for the former offence, and the appellant had previous convictions for breaches of domestic violence orders (including one committed against the same complainant) (see [21]). Further, the conduct of the appellant in the second charge was ‘sustained and patently violent’. It occurred not only in a residence but in a public area (see [22]). Finally, the appellant had a significant criminal history (see [23]).

AJS v KLB v Anor [2016] QDC 103 (13 May 2016) – Queensland District Court

‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Risk of future domestic violence’ – ‘Whether a protection order was necessary or desirable to protect the respondent from domestic violence’

Appeal Type: Appeal against protection order.

Facts: The female respondent and the male appellant began a relationship in March 2014. The appellant gave her a false name, ‘Cray’, and other false details about his life. The respondent ended the relationship on 31 December 2014. From January to May 2015, the respondent received a series of text messages from the appellant. While at first these messages were consistent with someone trying to salvage the relationship, they became increasingly aggressive and abusive. Some included sexually explicit references.

The respondent contacted police in February 2015. The police made contact with the appellant. The appellant asserted that he was not ‘Cray’ and, in a series of phone calls, threatened the police and the respondent with legal action. He then sent the respondent a nine page threatening and intimidating letter. A temporary protection order was made in favour of the respondent. The appellant then instructed his solicitors to write a letter seeking the proceedings to be discontinued. This letter denied that he ever knew the respondent.

On 20 November 2015, the court made a protection order in favour of the respondent against the appellant. The magistrate noted in his findings that the respondent was clearly upset and frightened in court. She had difficulty giving evidence and, even when removed to the vulnerable witness room, she covered her face from the camera. The appellant, on the other hand, appeared confident and in control.

Issue/s: One of the grounds of appeal was that there was no or no sufficient evidence to support the finding that His Honour was satisfied that an order was necessary or desirable to protect the respondent from domestic violence.

Decision and Reasoning: The appeal was dismissed. Harrison DCJ had regard to the decision of Morzone DCJ in MDE v MLG & Commissioner of the Queensland Police Service where he asserted that the question of whether ‘the protection order is necessary or desirable to protect the aggrieved from domestic violence’ in s 37(1)(c) of [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) requires a three-stage process supported by proper evidentiary basis. As per Morzone DCJ at [55]:

•

‘Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order:

(a)

‘There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.

(b)

‘Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence’.

•

‘Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children’.

•

‘Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence. In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1)’.

Harrison DCJ held that although the magistrate did not refer specifically to each of the three stages of the three-stage process described in MDE, the magistrate did not err in finding that it was desirable to make the necessary protection order for the protection of respondent from domestic violence:

1.

There was sufficient evidence to make the finding that there was a risk of future domestic violence in the absence of any order. Here, the magistrate had regard particular regard to the two letters from the appellant. These did not show any remorse or rehabilitation and the mere fact that the appellant had not contacted the respondent since he was caught on 9 June 2015 did not advance the issue of rehabilitation any further. Additionally, it was particularly relevant that the appellant tried to lie his way out of the temporary protection order. These considerations ‘took the matter much further than the mere possibility or speculation of the prospect of domestic violence’ (see [85]-[87]).

2.

The magistrate had regard to the impact of the appellant’s behaviour on the respondent, and the fact that they both lived and worked in the Atherton Tablelands (a relatively small community where there would be real opportunities for direct and indirect contact in the future). This evidence was clearly sufficient to satisfy the second stage in MDE (see [88]).

3.

In relation to the third stage, a number of matters in s 4(1) of the Act were relevant namely, the safety, protection and wellbeing of the respondent; the need to treat her with respect and to ensure minimal disruption to her life; holding the appellant responsible for his domestic violence and the impact it had on the respondent; and the respondent was vulnerable as under paragraph (d), as was demonstrated with her difficulties in giving evidence (see [89]-[90]).

DMK v CAG [2016] QDC 106 (15 April 2016) – Queensland District Court

‘Abuse of process’ – ‘Definition of domestic violence’ – ‘Desirability of protection order’ – ‘Domestic violence protection order’ – ‘Emotional and psychological abuse’ – ‘Evidentiary standard of proof’ – ‘Relevant relationship’ – ‘Systems abuse’ – ‘Vexatious or frivolous’

Appeal type: Appeal against domestic violence protection order

Facts: The appellant and respondent were in a de-facto relationship for almost 10 years and had children together. After separating, the respondent became the children’s primary caregiver. The appellant assisted her in looking after the children and they continued in a parenting relationship. A domestic violence protection order was made against the appellant to protect the respondent in the Magistrates Court. The magistrate had regard to three court orders existing between the parties in making this order. These were a Family Court order, a protection order made against the respondent naming the appellant as aggrieved, and a temporary protection order with the respondent as the aggrieved.

Prior to the making of the domestic violence protection order, the appellant made a complaint to police that his daughter was ‘sexting’. A few weeks later, he made another complaint that the respondent texted him in contravention of the protection order naming him as the aggrieved. However, after investigations the police determined both these complaints were unfounded. The appellant then allegedly threatened to kill their children, the respondent, her new partner and his children. The appellant than made a further complaint that the respondent’s new partner had unregistered firearms. After searching his home, the police did not find any of the alleged firearms. Several months later the appellant complained that the respondent kidnapped his 17-year-old daughter. This complaint was also unfounded. Finally, the appellant allegedly threatened the children that the respondent would be sent to gaol.

The magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence. He accepted that the appellant’s conduct in making complaints to police caused the respondent to live in constant fear of the appellant. In particular, she feared that the appellant would act on his threats to kill her and her family. The magistrate considered that this amounted to domestic violence for the purposes of s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

Issues: Some grounds of appeal were:

1.

Whether magistrate erred in finding the appellant’s conduct in making complaints to the police was ‘domestic violence’ within the meaning of the Act.

2.

Whether the magistrate erred in failing to exercise his discretion reasonably by not finding that the prosecution case was frivolous or vexatious or otherwise an abuse of process.

3.

Whether the magistrate erred in failing to exercise his discretion reasonably by making the protection order.

Decision and reasoning: The appeal was dismissed and the protection order was affirmed.

As a preliminary issue, Morzone QC DCJ denied the appellant’s request for a de novo rehearing as of right ([12]-[23]). Further, His Honour rejected the submission that the evidentiary standard of proof under the Act is higher than on the balance of probabilities ([24]-[27]- discussing Briginshaw v Briginshaw [1938] HCA 34).

1.

The magistrate did not err in finding the conduct amounted to domestic violence under the Act. The appellant’s complaints to police were ‘over-reaching, baseless or made for a collateral purpose’ ([44]). They were not made for the purpose of protecting the children as submitted by the appellant, but rather to harass the respondent. This, together with the appellant’s threats to the children, impacted the respondent and caused her to live in substantial fear for her own safety and the safety of her children, her partner and his children. The complaints to police were harassing and intimating to amount to emotional and psychological abuse. They were also threatening and controlling or dominating to cause fear to the respondent’s safety. Therefore, the behaviour fell within the definition of domestic violence under ss 8(1)(b),(d) and (f) of the Act.

In finding that the complaints amounted to domestic violence, the magistrate accepted the uncontested facts and rejected the appellant’s evidence where it conflicted with other witnesses. There were no identifiable incontrovertible facts or uncontested testimony to demonstrate the magistrate erred in making these conclusions about the evidence.

2.

The proceeding in making the protection order was not frivolous or vexatious: ‘It could not be characterised as being of little or no weight, worth or importance, and thereby frivolous. It is not usual for proceedings of this nature to trouble, annoy, or distress one of both parties. That may be natural consequence of the proper conduct of proceedings in the context of highly emotional family breakdown and litigation. There is no evidence of vexatious conduct in this case’ ([7]). Nor was the proceeding an abuse of process. The proceeding was commenced and maintained by the prosecution for the ‘substantial and legitimate purpose of obtaining the appropriate remedy under the Act’ ([10]).

3.

The magistrate did not err in concluding that a protection order was necessary or desirable to protect the respondent from domestic violence under s 37(1)(c) of the Act. The respondent was fearful of future domestic violence from the appellant. Therefore, the order was desirable. In coming to this conclusion, the magistrate considered and assessed that there was a risk of future domestic violence if an order was not made. The appellant and respondent remained in a dispute before the Family Court, were in contact frequently in relation to their children, and the appellant showed no remorse for his conduct. There was no requirement that the magistrate was satisfied that future domestic violence was ‘likely’. The magistrate also assessed that the appellant’s behaviour in the ongoing parental relationship was inappropriate and that he was misconceived about his ‘responsibility, entitlement and nobility, which manifested in an absence of insight into the consequences of his actions’ ([16]). These findings were open on the facts. Therefore, the magistrate exercised his discretion properly and reasonably in making the protection order against the appellant.

BJH v CJH [2016] QDC 27 (26 February 2016) – Queensland District Court

‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Meaning of domestic violence s 8’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Risk’ – ‘Whether it was necessary or desirable to make an order to protect the aggrieved’

Appeal Type: Appeal against a Protection Order.

Facts: The appellant appealed against a magistrate’s decision to make a Protection Order requiring him to be of good behaviour towards the aggrieved (his partner) and her son. The order was made after a disagreement over the family meal. The appellant took the aggrieved’s mobile phone in an attempt to get her to go downstairs to discuss matters with him. The aggrieved tried to get the phone back and the appellant discarded it onto the floor, causing minor but irreparable damage to its cover. At some point, the back of the appellant’s hand came into contact with the aggrieved’s ear, causing relatively low level pain and no injury to the aggrieved. The appellant and the aggrieved continued arguing loudly until the police arrived (see [9]).

The magistrate made the following findings of domestic violence (see [10]):

•

The appellant took the aggrieved’s phone in an attempt to force her downstairs. He threw the phone to the ground in response to the aggrieved’s attempts to retrieve the phone.

•

The appellant slapped the aggrieved in a backhanded motion to the head on purpose.

•

There was constant harassment by the appellant towards the aggrieved that night that was intimidating (causing her to retreat from him). This intimidation and harassment amounted to an act of domestic violence when considered with the yelling and the banging of plates (emotional and psychological abuse).

Issue/s: Whether the magistrate erred in making a protection order under s 37 [Domestic and Family Violence Protection Act 2012 (Qld)], specifically:

1.

Whether the magistrate erred in finding that domestic violence had been committed against the aggrieved: s 37(1)(b).

2.

Whether the magistrate erred in finding that it was necessary or desirable to make the order to protect the aggrieved from domestic violence: s 37(1)(c).

Decision and Reasoning: The appeal was allowed. Rackemann DCJ held that it was open to the magistrate to conclude that there was at least some domestic violence committed by the appellant against the aggrieved. His Honour agreed that the following behaviour amounted to domestic violence under s 8 [of Domestic and Family Violence Protection Act 2012 (Qld)]:

‘The action of the appellant in seizing the aggrieved’s mobile telephone was behaviour which, in the circumstances, was coercive - being designed to compel the aggrieved to do something which she did not wish to do (ie come downstairs to discuss matters of concern to the appellant). Further, the appellant responded to the aggrieved’s attempt to get her telephone back by, amongst other things, throwing the phone onto the floor thereby damaging it. That the phone was discarded in a throwing motion had support in the evidence’ at [11].

However, beyond that, the magistrate erred in her findings of domestic violence. In light of the evidence (see consideration at [14]-[29]), the magistrate’s finding of an ‘intentional back-handed slap’ could not be supported. Further, the magistrate erred in characterising the appellant’s behaviour as emotionally or psychologically abusive – behaviour that, amongst other things, intimidates (a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour) or harasses (there must be an element of persistence): GKE v EUT. A consideration of the evidence could not support this conclusion (see [30]-[46]).

The finding of more extensive domestic violence on the night in question than what occurred further affected the magistrate’s consideration of whether an order was necessary or desirable. In reconsidering whether an order was necessary or desirable, Rackemann DCJ again noted the decision in GKE v EUT where McGill SC DCJ observed in relation to s 37(1)(c) [Domestic and Family Violence Protection Act 2012 (Qld)] that:

‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’ (see [32]-[33]).

Here, the risk was not such to conclude that the making of a protection order was ‘necessary or desirable’ on the facts as established at the time of the hearing before the magistrate in February 2015. This was in circumstances where: there was no demonstrated history of domestic violence prior to the night in question; the event was a single incident involving domestic violence which, whilst in no way acceptable, was not at the most serious end of the scale of such conduct; the aggrieved gave evidence that she was not fearful of the appellant and did not believe that she needed protection from him; and, at the time of the hearing before the magistrate, the appellant and the aggrieved had continued their relationship without suggestion of further incident (see [49]-[50]).

Commissioner of Police v DGM [2016] QDC 022 (15/3279) Kingham DCJ 22 February 2016 – Queensland District Court

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Assault occasioning bodily harm’ – ‘Breach of temporary protection order’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Temporary protection order’ – ‘Verbal abuse’ – ‘Victim’

Charges: Assault occasioning bodily harm, breach of temporary protection order (TPO) (4 counts), breach of bail (7 counts).

Appeal Type: Appeal against sentence.

Facts: Two weeks before the offending, a TPO was served on the respondent (an Aboriginal man) which named the complainant (his partner), their young son and their unborn child as protected persons. The order prohibited him from being in the vicinity of the complainant apart from authorised contact with their child with the complainant’s consent and required that he be of good behaviour towards the protected persons. The offending occurred when the respondent went to the complainant’s house to visit his son without authorisation. He approached the complainant with a metal pole and verbally abused her. He dropped the pole and walked towards the complainant with a clenched fist. He then punched, struck and kicked her which caused her to fall to the ground. She was taken to hospital and released that night. After fleeing, the respondent returned later that night, came into her yard and asked to talk to her. Police found him sitting in a car with a machete at his feet. His criminal history included property, street and driving offences, as well as a history of breaching community based orders. He had a serious drug addiction. He pleaded guilty early and was sentenced to 12 months’ imprisonment for assault occasioning bodily harm. Concurrent lesser terms for the other offences were imposed. The offending also wholly activated an existing suspended sentence. He was released on parole immediately.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. Her Honour held that the Magistrate erred in taking considering the respondent’s eventual surrender to police as a mitigating factor. While the surrender was voluntary, it had to be considered in the context of numerous bail breaches leading up to sentence, which was consistent with his history of disregard for court orders. In relation to the complainant’s apparent wish to continue the relationship with the respondent, her Honour noted at [34]-[35] that – ‘Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor. Likewise, reconciliation after the victim has complained ought not mitigate the sentence. There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation. However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.’

In this case, the Magistrate correctly did not treat the complainant’s support as a mitigating factor. However, the Magistrate did err by immediately releasing the respondent to encourage his rehabilitation. Rehabilitation is an important consideration for young indigenous people with drug addictions. However, given the seriousness of the offence and the vulnerability of the victim, the need for denunciation and deterrence outweighed the need for rehabilitation. In citing comparable authorities, (see from [45]-[62]), her Honour then concluded that the sentence was manifestly inadequate. The respondent was re-sentenced for assault occasioning bodily harm to 18 months’ imprisonment, with parole release set at the one third mark in the sentence. A conviction for a domestic violence offence was recorded.

Green v Queensland Police Service [2015] QDC 341 (27 November 2015) – Queensland District Court

‘Contravention of a domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Prior history of contravention of domestic violence orders’ – ‘Sentencing’ – ‘Too much emphasis on prior criminal history’ – ‘Totality’

Charge/s: Contravention of a domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The appellant was 24. He had a criminal history, including nine previous convictions for contravention of domestic violence orders. The appellant was hospitalised when his female partner, the aggrieved, stabbed him in the leg and foot with a knife during an argument. A temporary protection order was made prohibiting the appellant from contacting the aggrieved. The stabbing incident was not the subject of any charge. Over the next two days, the appellant contacted the aggrieved on her mobile phone 60 times. These calls did not involve any threats or actual violence. The appellant was on parole for a sentence imposed at an earlier time. The appellant was sentenced to six months imprisonment, which was to be served cumulatively upon the 15 month prior sentence.

Issue/s: The magistrate erred in two significant respects which resulted in an excessive sentence:

1.

The magistrate placed too much emphasis on the appellant’s criminal history for like offending and imposed a sentence which was disproportionate to the gravity of the instant offence; and

2.

In imposing a cumulative term, the magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate.

Decision and Reasoning: The appeal was allowed. First, Morzone QC DCJ noted that the surrounding circumstances, the appellant’s criminal history and the stabbing incident, were properly provided by the prosecution by way of context for the subject offending. However, His Honour continued at [17]:

‘[t]he danger was that that context could potentially take on an overwhelming character with the prospect of elevating the nature of the offending the subject of the sentence. It seems to me that that danger was realised and can be demonstrated by the sentencing remarks of the magistrate where she conflated the past criminal history, other intervening behaviour and the subject offending’.

Here, the criminal history and the conduct that constituted it were not as proximate to the subject offending as apprehended by the magistrate. Evidence of the stabbing was accepted in the context that the police did not press charges against the aggrieved but the magistrate determined that the aggrieved was acting in self-defence. Further, there was little or no regard given to any particular findings of fact surrounding the subject offending, namely, the 60 occasions of telephone contact. Rather, this was relegated to almost incident behaviour. Thus, Morzone QC DCJ held that ‘[b]y conflating the historical criminal behaviour and other violent behaviour with the subject offending, it seems to me that Her Honour mistook the facts and allowed erroneous or irrelevant matters to guide or affect her exercise of discretion’ (see [18]-[21]).

Second, Morzone QC DCJ held that at [30]:

‘the magistrate acted on a wrong principle by characterising the pre-existing sentence to a “different issue altogether” because the appellant breached his parole by reoffending. She apparently had no regard to the “period of imprisonment” required by section 160F of the [Penalties and Sentences Act 1992 (Qld)]… and the extension of the totality principle … It seems to me that her approach caused her to fall into error by failing to take into account material considerations of the whole period of imprisonment (including the balance of the previous sentence), reviewing the aggregate sentences and considering whether the latter was just and appropriate’.

The appellant was re-sentenced to three months imprisonment, to be served concurrently with the existing sentence.

TZL v Commissioner of Police [2015] QDC 171 (3 July 2015) – Queensland District Court

‘Breach of domestic violence order’ – ‘Criminal history’ – ‘Deterrence’ – ‘Minor breach’ – ‘Sentencing’

Charge/s: Breach of domestic violence order.

Appeal type: Appeal against sentence.

Facts: The appellant pleaded guilty and was convicted for contravening a domestic violence order and sentenced to 10 months’ imprisonment. The order prohibited the appellant from contacting the aggrieved apart from matters in relation to their child. He breached this condition by 41 sending emails over an 11 week period, the content of some of which were not solely in relation to their child. He was released on parole on the day of sentence. The appellant had an ‘appalling’ (see at [21]) history of breaching protection orders – consisting of 10 total convictions of which 8 related to the aggrieved. In fact, he was on probation for these offences when this offence was committed.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. Kingham DCJ acknowledged at [17] that this was an ‘unusual’ sentence. There was no physical violence, actual or threatened. There was no intimidation or any harassing or controlling behaviour. While there were 41 emails, they were sent over an 11 week period and not all of them breached the order as some were related solely to the child. There was also one very minor personal contact at a child care centre. Kingham DCJ found these facts in combination do not warrant a sentence of imprisonment. Notwithstanding, the appellant’s clear ‘disdain’ ([21]) for protection orders as evidenced by his criminal history warranted a strong element of personal deterrence in the sentence. However, her Honour emphasised that the purpose of the sentence was not to punish the appellant again for prior offending, and that the Magistrate, ‘gave the Appellant’s prior history such weight that it led to the imposition of a penalty which was disproportionate to the gravity of this offending’ (See at [22]). As such, the Court concluded (while also taking into account comparable authorities) that the sentence was excessive. It was reduced to 6 months. The immediate parole release was not changed.

MDE v MLG & Queensland Police Service [2015] QDC 151 (2 June 2015) – Queensland District Court

‘Necessary or desirable test’ – ‘Protection order’ – ‘Three stage approach’

Appeal type: appeal against a protection order.

Facts: On 17 October 2014, a police officer made an application for a protection order against the appellant (MDE) for the benefit of the first respondent (MLG) under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). MDE had been continually harassing MLG over the phone and outside her apartment (see [1]-[6]). On 23 October 2013, a temporary protection order was issued with the standard condition (under s56 DFVPA) that “the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.” Three months later, on 21 January 2015, the Magistrate heard the application and decided to issue a protection order against MDE having been satisfied the requirements under s 37 of DFVPA could be established. The order incorporated the standard condition under s 56 and other conditions under s 57 of the DFVPA ([13]).

Issues: The appellant appealed against the Magistrate’s decision on six grounds, of which the first three questioned the correctness of the Magistrate’s application of s 37 of the DFVPA and the last three concerned procedural and fact-finding errors on the Magistrate’s part (see [18]). Relevantly, the first ground of appeal was that the Magistrate failed to follow, as required, the decision in GKE v EUT [2014] QDC 248 at [33] which provides that a future ‘risk’ of violence must be considered and, if absent, a protection order should not be issued (see [64]).

Decision and reasoning: The appeal was allowed and the protection order was therefore set aside.

The second and third grounds of the appeal (see [69] and [56] respectively), along with the fourth, fifth and sixth grounds (see [73]-[79]), were rejected by Morzone QC DCJ (see [72] and [63] respectively). The first, however, was allowed.

Morzone QC DCJ found that the Magistrate relied on erroneous or irrelevant matters and principles in their determination of whether the order was “necessary or desirable” ([68]). Specifically, his Honour highlighted at para [65]-[66] that the Magistrate’s reasons confused the requirements set by s 37(1)(a) and s 37(1)(c). His Honour further noted that the Magistrate failed to expressly examine the material considerations relevant to s 37(1)(c) and (2) ([67]). These included the nature and risk of future domestic violence, the protective needs of the aggrieved (if any), and, if a need was found, how imposing a protection order would be “necessary or desirable” to meet those needs ([67]).

The Magistrate’s decision was therefore considered unreasonable by Morzone QC DCJ. This prompted his Honour to re-examine the third element posed by s 37(1)(c), that is, whether a protection order is necessary or desirable to protect the aggrieved from domestic violence ([84]).

Importantly, earlier in his judgement, Morzone QC DCJ expressed the view that the third element of s 37(1) requires a three-stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the DFVPA) (see [55]). In short, the three steps involve (1) assessing the risk of future domestic violence between the parties in the absence of any order, (2) the need to protect the aggrieved from that domestic violence in the absence of any order, and (3) whether imposing an order is “necessary or desirable” to protect the aggrieved from the domestic violence (see [55]).

Upon analysis of the evidence in para [85]-[89], Morzone QC DCJ reached the conclusion that the first and second stage cannot be established, meaning the imposition of a protection order was neither necessary nor desirable to protect MLG from the domestic violence and therefore, the protection order ought not remain in force.

SM v AA [2015] QDC 172 (29 May 2015) – Queensland District Court

‘Domestic violence order’ – ‘Ex parte application’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Verbal abuse’

Appeal Type: Application for an extension of time in which to file an appeal against the variation of a domestic violence order.

Facts: The appellant (the respondent in a domestic violence order) failed to appear at the Magistrates’ Court for an application to extend the order. The Magistrate noted appellant’s absence. The Court proceeded to ‘hear and decide the application’ pursuant to section 94 of the Domestic and Family Violence Act 2012 (Qld).

Issue/s: Whether the Magistrate correctly heard and decided the matter.

Decision and Reasoning: The appeal was allowed. Judge Reid considered the remarks of the Magistrate. The remarks did not consider the reasons put before the Court by the applicant as to why the domestic violence order should be extended. These reasons included allegations of physical and verbal abuse and multiple breaches of the order. Instead, the Magistrate simply made the order and considered whether the order should be extended for 18 months or for two years. Judge Reid was concerned that the Magistrate dealt with the matter, ‘merely as a rubber stamp exercise’. There was nothing in the Magistrate’s remarks to indicate that she had read the material to ascertain whether or not the breaches of the order actually occurred. There was little or no particularity in the allegations, specifically about when or where the breaches occurred. In circumstances where parties do not attend, it is incumbent upon the Magistrate to ‘hear and decide’ the matter, even if it is entirely upon affidavit evidence. The transcript did not indicate that the Magistrate considered the question at all. As such, the order was set aside.

LKL v BSL [2015] QDC 337 (15 May 2015) – Queensland District Court

‘Affidavit evidence’ – ‘Domestic violence order’ – ‘Evidence’ – ‘Procedural fairness’

Appeal Type: Appeal from dismissal of application for protection order.

Facts: The appellant appeared unrepresented in the Magistrates’ Court and filed for a protection order pursuant to the Domestic and Family Violence Act 2012 (Qld). She was initially granted a temporary protection order in the Magistrates’ Court. The Magistrate then made directions to the effect that the evidence of all witnesses in support of the application was to be filed as affidavit evidence. No such affidavit evidence was provided. The appellant believed that the application itself, without further affidavit evidence was sufficient. The application for the protection order was then refused, with the Magistrate concluding that there was no material before the Court (see further at [7]-[9]).

Issue/s: Whether the aggrieved in a protection order application can rely solely on the application without further affidavit evidence.

Decision and Reasoning: The appeal was upheld. The Domestic and Family Violence Act 2012 (Qld) makes clear that the formal rules of evidence do not apply and gives the Court broad powers to ‘inform itself in any way it considers appropriate’ (see s 145). However, the court obviously still has an obligation of procedural fairness. Dick SC DCJ explained that in hearing and determining an application for a protection order, ‘there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter’ (See at [11]). The Magistrate’s directions did not exclude the appellant’s sworn application as evidence. Therefore, the Magistrate’s conclusion that there was no material before the Court was an error of law. The Magistrate did not consider and determine the application. As such, it is clear that an aggrieved person can rely solely on the application as evidence without the need for further affidavit evidence. The respondent can then respond to the application if they choose. The application was remitted back to the Magistrates’ Court for determination by a different magistrate.

GKE v EUT [2014] QDC 248 (27 August 2014) – Queensland District Court

‘Costs’ – ‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following harassing, monitoring’ – ‘Harassing’ – ‘Intimidation’ – ‘Necessary or desirable’ – ‘Systems abuse’

Appeal Type: Appeal against the making of a domestic violence order.

Facts: A domestic violence order was made in the Magistrates’ Court against the appellant in favour of the respondent. There had already been orders made in the Family Court in relation to arrangements for their three children. The appellant filed for enforcement of these orders in the Family Court. He attended the respondent’s home for the purpose of serving court documents. When the respondent opened the door, she closed it immediately because she felt frightened. This incident and other prior incidents led to the application for the order.

Issue/s:

1.

Whether the appellant’s commencement of proceedings in the Family Court and the personal service of documents on the respondent constituted intimidation or harassment sufficient to meet the definition of emotional or psychological abuse and therefore domestic violence within the meaning of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

2.

Whether a protection order was necessary or desirable to protect the respondent from domestic violence.

3.

Whether costs should be awarded against the respondent.

Decision and Reasoning: The appeal was upheld.

1.

McGill DCJ upheld the Magistrate’s finding that the incident at the respondent’s home constituted domestic violence. His Honour considered the definition of ‘emotional and psychological abuse’ in s 11 of the Act. He noted that the issue is whether the behaviour is subjectively intimidating or harassing to the other person. Therefore, evidence of the subjective response of the aggrieved is relevant (see at [21]). His Honour noted at [22] that while examples in the Act refer to persistent conduct, intimidation within the meaning of s 11 could arise from a single incident. However, harassment cannot arise from a single incident. His Honour stated that there has to be ‘some element of persistence’ such that, ‘It is not just a question of whether the aggrieved finds something upsetting’ (see at [23]). As such, while the incident at the house amounted to domestic violence, the Family Court application itself was not an example of domestic violence –

‘I suspect it would be possible for the making of repeated applications to the Family Court without justification to amount to “harassment”, though it would have to be a clear case; it would certainly not be harassment simply because from time to time the respondent denied the appellant access to the children and he made an application to the Family Court to obtain it’ (see at [20]). The mere fact the appellant takes steps to enforce Family Court orders does not and cannot constitute domestic violence. Conversely, the respondent unjustifiably withholding the children cannot justify domestic violence by the appellant.

2.

McGill DCJ noted that this question is concerned with the future. Another relevant consideration was that while the respondent did not want to see the appellant at all, the terms of the Family Court order and the presence of the children dictated that there had to be some continuing contact between the parties.

See at [32] – ‘In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that…I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made….’

The evidentiary basis for this risk must amount to more than the mere possibility of such conduct occurring (See at [33]). It is also relevant to consider the seriousness of the violence that is threatened, the credibility of the threat and the practical consequences of the order on the person against whom the order is made. For example, a no contact order ought not be made where some contact is necessary in relation to children (see at [42]-[43]). In applying these principles, his Honour found that it was not necessary or desirable to make an order. His Honour noted that while it was possible that circumstances could arise which amount to intimidation, the issues relating to the children remain in the Family Court. It would not be appropriate to make a protection order to interfere with the appellant’s right to enforce his rights in that jurisdiction. There was no real risk of domestic violence as long as the respondent complied with the Family Court orders (see at [67]).

3.

Costs were not ordered in favour of the appellant. Section 157 of the Act provides that each party must bear their own costs unless the court decides that their application was malicious, deliberately false, frivolous or vexatious. It is not clear whether this section applies to an appeal. However, his Honour concluded that while the general power to award costs under s 15 of the Civil Proceedings Act 2011 has not been expressly excluded by the Act, that power should be exercised having regard to the specific costs provision in s 157. Therefore, it is not simply a matter that costs follow the event for this type of proceeding. In any case, an adverse costs order against the respondent was not appropriate.

TND v Queensland Police Service [2014] QDC 154 (18 July 2014) – Queensland District Court

‘Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Breach of domestic violence order, assault of a police officer.

Appeal Type: Appeal against sentence.

Facts: The appellant and the aggrieved were drinking, then returned home (in the Normanton district). Following a dispute, the appellant became agitated and punched the aggrieved, causing a minor injury. After police were called, officers were forced to use capsicum spray to subdue the appellant. He continued to threaten violence after his arrest. He had a long criminal history including many property and drug offences. He had one prior conviction for breaching a domestic violence order, for which he was fined $100. He submitted this matter was not one of ‘significant gravity’ (See at [9]). The appellant submitted in the Magistrates’ Court that the relationship was not one characterised by violence. Following pleading guilty, he was sentenced to six months’ imprisonment with immediate parole release for the breach offence. He was sentenced to one month imprisonment wholly suspended for an operational period of nine months for the assault offence. In his sentencing remarks, the Magistrate referred to crime statistics and noted the prevalence of breaches of domestic violence orders and offences against police in the Normanton district, which necessitated a strong element of general deterrence in sentencing.

Issue: Whether the sentence for the breach offence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The Court acknowledged that the Magistrate did err by not properly indicating how he took into account of the plea of guilty, and by using the statistics, which were found to not be reliable. Mitigating factors included the appellant’s youth and his early plea of guilty. The relationship was long-term and was not characterised by actual violence. His criminal history, while relevant, was minor. However, at [35] Bradley DCJ emphasised that domestic violence involving psychical violence is a serious issue and the appellant did cause some injury to the aggrieved. He had been recently convicted of breaching a protection order and general and specific deterrence were important. He was subject to various court orders when he committed the offence. The maximum penalty was three years. As such, the sentence was held to be appropriate.

R v MKW [2014] QDC 300 (18 June 2014) – Queensland District Court

‘Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double jeopardy and other charges’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay of proceedings’ – ‘Physical violence and harm’

Charge/s: Grievous bodily harm.

Proceeding: Application for a permanent stay of proceedings.

Facts: An indictment before the District Court charged the applicant with grievous bodily harm. The incident involved the applicant drinking alcohol in a group which included the complainant (his de facto partner). An argument ensued. The applicant struck the complainant with a collapsible chair. He was charged with breaching a domestic violence order, pleaded guilty in the Magistrates’ Court and was sentenced to 12 months’ imprisonment with parole release after four months. The police then obtained a medical report indicating that the complainant’s injuries, if left untreated were likely to have caused ‘disfigurement or loss of vision’ and could have proved life threatening (see at [3]). As a result, he was then charged with grievous bodily harm (GBH) three days after being released from custody.

Issue/s: Whether the continued prosecution of the GBH charge would constitute an abuse of process under s 16 of the Queensland Criminal Code because the applicant had already been punished for the same act.

Decision and Reasoning: The application was dismissed. O’Brien DCJA considered the test as applied in R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014). His Honour concluded at [9] that the applicant was punished in the Magistrates’ Court for the act of striking the complainant with the chair and that it was this same act which formed the basis of the GBH charge. Ordinarily, to punish the defendant again for that same act would contravene s 16 of the Code. However, the Crown submitted that s 138 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) operates to authorise the continued prosecution of the GBH charge. The Court accepted this argument. The crucial issue was whether the original prosecution for the breach offence against the Act constituted a ‘proceeding’ under that act. If it did, s 138(3)(a) would apply so that the prosecution for the breach offence would not affect any other proceeding against the applicant arising out of the same conduct. His Honour concluded that the prosecution for the breach offence was a proceeding under the Act (see at [15]). As such, R v Dibble; ex parte Attorney-General (Qld) (where a permanent stay was granted) was distinguished on the basis that the Act specifically authorises continuation of the prosecution. However, this issue has not been authoritatively resolved and uncertainty remains. See at [17] where his Honour states –

‘I should add that, if my tentative view of s 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether s 16 of the Code prohibits him being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.’

See pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book and the summary of R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) for further information.

CPS v CNJ [2014] QDC 47 (21 March 2014) – Queensland District Court

‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘Establish relationship with victim's former partner’ – ‘Harassing’ – ‘Meaning of domestic violence’ – ‘Protection order’ – ‘Protection order necessary or desirable’ – ‘S 8(1) of the Domestic and Family Violence Protection Act 2012 (Qld)’ – ‘Separation’

Matter: Appeal against the making of a protection order.

Ground: The magistrate erred in making a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (‘DFVPA’).

Facts: The appellant male and respondent female had been in a relationship from May until late September or early October 2021. The magistrate hearing the original application found that both parties lived as though in ‘a soap opera’, behaving in puerile, immature and childish ways. The conduct of the appellant was identified as ‘repeated early contact amounting to harassment’. Further, complaints about property amounted to harassment. After the relationship between the respondent and appellant came to an end, the appellant sought out the respondent’s ex-partner and struck up a relationship with him.

Decision and Reasoning: The continuous contact with the respondent following the end of the relationship, as well as the contact with the respondent’s ex-partner, were found to be capable of constituting domestic violence. The appellant’s conduct was capable of falling into one or more of the categories enumerated in s 8(1) of the DFVPA, namely, behaviour that is “emotionally or psychologically abusive” and/or “is threatening” and/or “coercive” or “in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing of that of someone else”.

However, the court was not persuaded, on balance, that the actions of the appellant in seeking out and striking up a relationship with the respondent’s ex-partner was sufficient to persuade the magistrate that a protection order was ‘necessary or desirable to protect the respondent from domestic violence’ in future. Therefore, it was found that the domestic violence order should not have been made.

W v Queensland Police Service [2013] QDC 87 (2 May 2013) – Queensland District Court

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Criminal history’ – ‘Physical violence and harm’ – ‘Possession of dangerous drug’ – ‘Sentencing’

Charge/s: Assault occasioning bodily harm, breach of domestic violence order, possession of dangerous drug.

Appeal type: Appeal against sentence.

Facts: Following an argument with the complainant, the appellant followed her, grabbed her by the harms and threatened her. She broke free, but was punched by the appellant in the right side of the jaw, causing her to bleed profusely. He was highly intoxicated. That constituted the assault offence. He was found to be in possession of cannabis at the time. The breach involved the same complainant. That offence occurred when she was heavily pregnant. The appellant demanded she have sex with him and she refused. He threw her phone at her and punched a door. He was intoxicated. He had a criminal history consisting of various street offences, one conviction for assault occasioning bodily harm and one conviction for breaching a domestic violence order. He was sentenced to three months’ imprisonment for the breach charge and nine months’ imprisonment for the assault charge, and fined $400 for the drug charge.

Issue/s: Whether the penalty was too severe. More specifically, there were issues concerning –

1.

Whether the Magistrate misapplied Earl v Heron [2011] QDC 183.

2.

Whether the Magistrate gave excessive weight to the appellant’s criminal history and the need for specific deterrence.

Decision and Reasoning: The appeal was dismissed.

1.

In relation to Earl v Heron, the appellant submitted inter alia that - in that case the offender committed a random act of violence on a stranger. This case concerned violence during a heated domestic argument between long term spouses, which makes this cases less serious. This argument was dismissed – with Smith DCJ concluding at [44] – ‘I do not accept the submission that an act of violence during a heated domestic argument between spouses is necessarily less serious than a random act of gratuitous violence on a stranger. It all depends upon the circumstances of the particular case.’ His Honour went on to make clear that the courts cannot condone either type of violence.

2.

In relation to the appellant’s criminal history, the Court concluded that the Magistrate was entitled to take into account the relevant prior convictions, and was also entitled to consider the injuries caused (a broken jaw), which were ‘reasonably significant’ (See at [50]). This made it an offence not at the low end of the scale.

MAA v SAG [2013] QDC 31 (28 February 2013) – Queensland District Court

‘Abuse of process’ – ‘Breach of protection order’ – ‘Children’ – ‘Coercive control’ – ‘Following, harassing, and monitoring’ – ‘Stepchildren’ – ‘Systems abuse’ – ‘Use of authorities’

Proceedings: Appeal against protection order.

Facts: The appellant and the aggrieved were in a domestic relationship from 2007 to 2009 [6]. The appellant sent the aggrieved abusive and derogatory text messages and disturbed the aggrieved’s place of residence, which prompted her to change the locks. The aggrieved accused him of shoving and pushing her when she was pregnant with one of their children in 2008.

The appellant made numerous baseless complaints to a range of governmental bodies to intimidate the aggrieved, including:

1.

the Queensland Ombudsman.

2.

the Anti-Discrimination Commission of Queensland.

3.

the Registry of Births, Deaths, and Marriages, regarding the registering of their daughter’s name, with the result that this was not registered until the Family Court made an order in relation to her name.

4.

Centrelink, which lead to an investigation of the aggrieved’s parenting payments.

5.

the Commission for Children and Young People.

6.

the Child Guardian.

7.

Queensland Health.

8.

The Health Quality and Complaints Commission.

9.

The Medical Board, against the children’s medical practitioner.

10.

Legal Services Commission, against her legal representatives.

11.

The Family Court where a notice of Child Abuse and subsequent investigation concerning the aggrieved’s three daughters.

12.

Complaints of abuse and her parenting that lead to a police investigation and welfare checks; and

13.

The initiation of two unwarranted and dismissed court proceedings by the appellant against the aggrieved

Grounds of Appeal: The Magistrate erred in finding that the appellant committed an act of domestic violence against the aggrieved and that the appellant is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence [24].

Decision and reasoning: Appeal dismissed.

It was open to the Magistrate to reject the appellant’s evidence that he committed the acts of complaining to numerous bodies for bona fide reasons [36]. The appellant’s numerous complaints to governmental bodies were unjustified and an abuse of process and were made to and had the effect of harassing and intimidating the aggrieved [38]. That the aggrieved’s children were subject to repeated investigation was further evidence of the harassment caused by the appellant.

The appellant's intimidation and harassment, on the evidence, amounted to acts of domestic violence and there was proper basis that the appellant would likely commit a further act of domestic violence. The aggrieved’s daughters also required protection.

Singh v Queensland Police Service [2013] QDC 37 (20 February 2013) – Queensland District Court

‘Aggravating factor’ – ‘Breach of bail condition’ – ‘Breach of domestic violence order’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’

Charge/s: Breach of domestic violence order (2 counts), breach of bail condition.

Appeal Type: Appeal against sentence.

Facts: The appellant pleaded guilty in the Magistrates’ Court to two counts of breaching a domestic violence order. The order prevented him from directly or indirectly contacting the aggrieved. The parties had been in a de facto relationship for five years. The first count involved the appellant standing over the aggrieved, pointing menacingly at her. He was taken into custody and released on bail with a no contact condition. In breach of this condition, he attended her home, yelled insults at her, broke property, head butted an informant and verbally abused her, all in the presence of their children and a witness. The Magistrate acknowledged that the presence of the three young children was a serious aggravating feature. The appellant had a relevant criminal history, including four previous domestic violence convictions committed against the aggrieved. The Prosecutor provided minimal assistance to the Magistrate as to the appropriate sentence. He was sentenced to nine months’ imprisonment followed by two years’ probation for each count, to be served concurrently. He was convicted and not further punished for the breach of bail.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was initially dismissed. Robertson DCJ commented that it is ‘regrettable’ (see at [7] & [25]) that the prosecutor did not provide the Magistrate with any assistance as to the appropriate sentence. The Court held that these acts were a ‘nasty and prolonged’ (see at [29]) example of domestic violence against a vulnerable complainant, by an offender who had a long history of violence against the same woman. He had previously shown disregard for court orders, and in this case also showed complete disregard for the bail undertaking. The only mitigating factor was the early plea of guilty. While the sentences were ‘severe’, they were not so severe as to amount to an error by the Magistrate.

(The appeal was then re-opened and upheld due to a procedural issue with taking into account the appellant’s prior convictions following the Court of Appeal’s decision in Miers v Blewett [2013] QCA 23 (22 February 2013). The requisite notice was not given, so the appellant’s prior convictions could not be taken into account. However, the Legislature has now amended s 47 of the Justices Act 1886 to ensure that prior convictions can be taken into account in sentencing whether or not notice has been served.)

LCJ v KGC and Commissioner of Police [2012] QDC 67 (30 March 2012) – Queensland District Court

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’

Appeal Type: Appeal against a protection order.

Facts: The appellant applied for and was granted a protection order (under the then Domestic and Family Violence Protection Act 1989 (Qld)). The applicant (the respondent/aggrieved) tendered evidence to the Magistrate that the appellant was physically violent to her on two occasions by grabbing her around the neck. There was also evidence that the appellant threatened to kill her if she went to the police. There was a history of violence in the relationship, which had involved verbal and physical abuse and controlling behaviour since 1992.

Issue/s: Some of the issues concerned –

1.

Whether it was open to the Magistrate to be satisfied that the appellant committed domestic violence against the aggrieved.

2.

Whether it was open to the Magistrate to be satisfied that the appellant was likely to commit further domestic violence against the aggrieved.

Decision and Reasoning: The appeal was allowed and the protection order was discharged.

1.

In relation to whether the Magistrate’s conclusion that the appellant committed domestic violence against the applicant was correct, Irwin DCJ concluded that the Magistrate was entitled to prefer the evidence of the applicant’s witnesses over the unsigned statements of the appellant and his witnesses. The statements tendered by the applicant were signed. The appellant’s statements were not. It was also open to the Magistrate to conclude that the appellant had continually harassed and intimidated the applicant.

2.

However, Irwin DCJ concluded that it was not open on the evidence for the Magistrate to conclude that the appellant was likely to commit an act of domestic violence again, or carry out a threat to do so. After the application was made, the applicant stated that the appellant had left the house where they were living, had not returned and there had been minimal contact since a temporary protection order was made. There was no evidence of physical violence and she said she did not feel threatened by him. As such, there was not sufficient evidence to support an inference that domestic violence was likely to occur again. While there were a string of emails that did constitute harassment, the last of these were 12 months before the Magistrate made the protection order. The appellant had also clearly indicated he wished to have no further contact with the applicant.

Magistrates' Court

WJM v NRH [2013] QMC 12 (3 May 2013) – Queensland Magistrates’ Court

‘Desirable’ – ‘Domestic violence order’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Principle of paramount importance’

Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).

Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved. After finding out that her husband had been having an affair, there was a violent incident between the aggrieved and the respondent. This involved the respondent punching the aggrieved extremely forcefully. The aggrieved had no family in Australia. The aggrieved and the respondent had taken steps to reconcile, including seeing a psychologist. The respondent had not yet seen a personal therapist to deal with anger management issues. The aggrieved claims to now feel supported by her husband and his family. She stated that if she feels scared she would move back home to China, and that making a protection order would not impact on how safe she feels.

Issue/s: Whether the protection order should be made.

Decision and Reasoning: The order was made. Contanzo JJ applied the principle of ‘paramount importance that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount’. His Honour found that it was ‘desirable’ to protect the aggrieved from the risk of further domestic violence by her husband. In making the order, his Honour noted the severity of violence used by the respondent – ‘As a matter of logic and common sense, the more severe the violence exhibited by a perpetrator, the more risk there is that serious violence will be used again unless there has been an appropriate and sufficient intervention. The gravity of the situation is that the degree of violence used was inexplicable and irrational’ (See at [53]).

It was noted that this case involved balancing the public interest of preventing domestic violence with private rights in a marriage. In this case, would an order ‘”get in the way” of the ongoing reconciliation by the parties?’ (See at [20]).

His Honour concluded that the ‘reduction of stressors on their relationship’ had not gone far enough to negate the risk of further domestic violence. The aggrieved remained vulnerable to further domestic violence, though less vulnerable than she had previously. As such, even though the aggrieved did not feel she needed to be protected from her husband, it remained desirable that she be protected with an order. However, the order made went ‘no further than is necessary for the purpose of protecting the aggrieved from the respondent’ (See at [58]).

Armour v FAC [2012] QMC 22 (21 November 2012) – Queensland Magistrates’ Court

‘Cross-jurisdictional applicability’ – ‘Domestic violence order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following, harassing, monitoring’ – ‘Necessary or desirable’ – ‘Physical violence and harm’ – ‘Principle of paramount importance’

Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).

Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved.

Issue/s: Whether the respondent committed domestic violence against the aggrieved, and whether the protection order was ‘necessary or desirable’ as required under section 37(1)(c) of the Act.

Decision and Reasoning: The protection order was made, with Constanzo JJ concluding that it was necessary and desirable to protect the aggrieved from domestic violence. In relation to the meaning of ‘necessary or desirable’, his Honour noted that the test is framed in the alternative. A court may make a protection order if it considers it ‘desirable’ but not ‘necessary’ and vice versa. His Honour then considered the plain English meanings of both words (See at [17]). A finding that it is ‘necessary or desirable’ to make an order must arise out of a need to protect the aggrieved from domestic violence with the terms of the order (see at [18]). This need for protection, ‘must be a real one, not some mere speculation or fanciful conjecture’ (See at [19]). This involves an assessment of risk that is faced by the aggrieved. While the risk of further domestic violence must actually exist, it is not necessary that the need or the risk be significant or substantial. However, it must be, ‘sufficient…to make it necessary or desirable to make the order in all the circumstances’ (See at [20]).

In considering whether a protection order is ‘necessary or desirable’, a court must have regard to section 4 of the Act, but can have regard to other matters if relevant. For example, in the old equivalent legislation, the test was one of likelihood. It involved the court considering whether the evidence indicates that there was, ‘some real, significant likelihood’ that further acts of domestic violence would be committed. Something more probable than a mere ‘chance or risk’ was required (See at [23]). This test is not mandatory in the new legislation, but is still a relevant consideration. That is, if the evidence indicates that a respondent is likely to commit an act of domestic violence again, it may be ‘necessary or desirable’ to make a protection order under the new legislation. However, the likelihood test is clearly not determinative (See at [25]). Sometimes it may be appropriate to make an order if the risk is only ‘possible’ as opposed to ‘likely’ (See at [65]). See in particular from [27]-[70], where Contanzo JJ engages in detailed comparisons of the equivalent provisions in all state and territories, as well as analogous Commonwealth legislation. At [47], his Honour explains how provisions from one state or territory can be relevant to courts in another –

‘While the legislation in other States cannot affect the jurisdiction of this court, the types of considerations referred to by the various Acts may provide some insight into the types of considerations which may, in appropriate cases, be relevant considerations in the determination of whether it is necessary or desirable for this court to make an order. They certainly do not provide anything approximating an exhaustive list of possible relevant circumstances. Whether they are relevant will depend on the law in Queensland and on the facts and live issues of each case. What weight ought to be given to any such relevant circumstance must also depend on the overall facts and circumstances of each hearing. The types of considerations referred to by the various Acts may simply provide this court with some inkling about the types of considerations legal minds, and judicial minds, may need to bring to bear on the determination of issues raised under the Queensland Act. However, I have taken great care to look at the context in which each of the other state laws is drafted.’

At [52]-[70], his Honour extrapolated the relevance of the Court’s power to make orders prohibiting conduct under section 1323 of the Corporations Act 2001 to domestic violence issues. The discretionary considerations listed in section 1323 may be relevant when a Magistrates’ Court is considering whether to make a protection order to protect the aggrieved from, ‘coercive, deceptive or unreasonably controlling economic abuse’ as well as other types of domestic violence (See at [56]).

In determining whether it is ‘necessary or desirable’ to make an order, a court will need to engage in a balancing exercise of public and private rights. That is, does the public interest in preventing domestic violence outweigh the private rights of the relevant parties? (See at [57] & [96]). At [61], his Honour observed that it may be ‘necessary or desirable’ to make an order, ‘even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist,’ and that, ‘if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution.’

At [63], his Honour stated that it may be ‘necessary or desirable’ to make an order by having regard to evidence apart from the evidence that establishes domestic violence has been committed. All facts and circumstances may be considered, including evidence, ‘which is properly before the court but which was not led by or relied upon by the applicant.’ A court can draw reasonable inferences from this evidence, such as inferences that a respondent induced an aggrieved to withdraw their complaint or to commit perjury.

Another factor is the gravity of the situation. That is, even if on the evidence it could not be said that it was ‘necessary’ to make an order, the gravity of the situation could indicate that it would be still ‘desirable’ to protect the aggrieved with the order, in which case an order can still be made.

Civil and Administrative Tribunal

ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 (8 March 2023) – Queensland Civil and Administrative Tribunal

‘Discipline finding pursuant to s7.4 of the police service administration act 1990 (qld)’ – ‘Evidence’ – ‘Police officer offender’ – ‘Protection order’

Proceedings: Police officer’s application for review of the respondent’s decision on a disciplinary finding pursuant to s7.4 of the Police Service Administration Act 1990 (Qld) and proposed sanction made 14 September 2020.

Issue: Whether the findings of domestic violence were valid, and whether the domestic violence constituted misconduct.

Facts: The first allegation was of acts of domestic violence committed against the applicant’s wife following their separation after the discovery of her affair. The applicant was alleged to have read her texts, private emails and Skype account messages and had consented to the grant of a protection order to his wife.

The final four aspects of contravened conduct were unrelated to domestic violence.

Decision and reasoning: Domestic violence was made out, and held to be unacceptable conduct from a police officer in a private setting and therefore misconduct.

The Tribunal found that the applicant’s consent to the protection order was not evidence of acts of domestic violence, as no admissions were made in the order and its terms had no suggestion of acts of domestic violence. On the evidence, the Tribunal was satisfied that the applicant accessed his partner’s texts and emails without her permission but was unable to make the same finding relating to her Skype account.

The Tribunal found that a physical altercation had occurred on one occasion over the phone and that this demonstrated that the applicant’s ex-partner was at least offended by the applicant accessing her private emails and texts. Domestic violence was therefore made out under s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (includes conduct that is ‘offensive’).

In assessing whether the domestic violence constituted misconduct, the Tribunal considered whether the conduct that met that which the community could reasonably expect of a police officer. The significance of the deeply personal and distressing context of the applicant’s behaviour was noted, the Tribunal stating it made his relatively low-level behaviour explicable to the community. However, it was nonetheless found to be unacceptable conduct from a police officer in a private setting. The Tribunal confirmed the finding made at the disciplinary hearing in relation to the domestic violence matter.

NK v Director-General, Department of Justice and Attorney-General [2021] QCAT 270 (30 July 2021) – Queensland Civil and Administrative Tribunal

‘Administrative law’ – ‘Breach of protection order’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Working with children negative notice’

Proceedings: Application for external review of the Department’s decision to issue the applicant a negative notice.

Facts: The applicant’s ex-partner had been granted a ‘Protection Order for ongoing physical violence and controlling behaviour’ [13]. Within five months, the applicant was convicted of contravening the Order by being with his ex-partner and her two children, one of whom was the applicant’s son [1]. As a result, the applicant was issued with a ‘negative notice’ to work with children preventing the issue of a positive notice blue card. The applicant applied for administrative review of the Department’s decision. As the applicant had not been convicted of a ‘serious offence’, he was entitled to be issued with a positive notice unless his case was ‘exceptional’ [2]. A case is exceptional if it is not in the best interests of children to issue a positive notice.

Decision and reasoning: The Tribunal confirmed the department’s decision that the applicant’s case was exceptional.

The Tribunal assessed the risk in allowing the applicant to work with children, ‘by identifying and weighing protective factors with risk factors’ [3]. The Tribunal accepted that the applicant had taken steps to address his issues, as evidenced by his participation in a men’s behavioural change program [9]. However, the applicant was not ‘aware of the psychological and emotional impact of his behaviour on others’ nor able to ‘exercise restraint and self-control… sufficient to work with children’ [28]. The Tribunal noted that applicant’s submissions focused on ‘minimising and not admitting responsibility’ for his actions while failing to demonstrate his ability to identify the triggers for his behaviour or use appropriate coping strategies [10]. Therefore, the Tribunal was not satisfied that the applicant had reduced ‘the risk of his susceptibility to [the offending behaviour] in stressful situations’ [20]. The Tribunal noted that the applicant faced recent and serious allegations of ongoing physical violence and controlling behaviour, which included threatening to kill his partner, and subjecting her to physical and verbal abuse in front of children. This behaviour had continued despite the Order, which he had breached within 5 months of its commencement [13]. Therefore, the applicant’s ‘limited insight into the seriousness of his behaviour and its impact on others, together with evidence of ongoing coercive control’ were risk factors that outweighed protective factors and made the applicant an unsuitable candidate for working with children [26].

Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General [2021] QCAT 237 (13 July 2021) – Queensland Civil and Administrative Tribunal

‘Administrative law’ – ‘Application for financial assistance’ – ‘Coercive control’ – ‘Evidence issues’ – ‘False police reports’ – ‘Listening to Victims’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Systems abuse’ – ‘Victim as (alleged) perpetrator’ – ‘Visa threats’ – ‘Weapon’

Proceedings: Application for external review of the Department’s decision to deny an application for financial assistance.

Facts: The male perpetrator and female victim were married and living together with their infant daughter. The perpetrator was sponsoring the victim, a Taiwanese citizen, for a permanent visa. The victim reported being subjected to ‘ongoing incidents of strangulation, financial, emotional, verbal and social abuse’, and ‘control and coercion’, involving threats of deportation and child removal [21]. In December 2017, the victim reported to police that her husband had attacked her with a knife. However, due to the victim speaking ‘very limited English’ police interviewed the perpetrator only, who stated that he had been attacked by the victim [33]. In February 2019, the victim’s application for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (‘the Act’) was refused [5].

Decision and Reasoning: The original decision was set aside and returned for reconsideration with a direction that the victim was eligible for financial assistance.

Under the Act, a person who is directly injured by an act of violence is eligible for financial assistance [9]. The Tribunal reviewed the evidence of the December 2017 incident and found that it had directly resulted in an injury to the victim [39]. The Tribunal’s finding was based on evidence that the victim had been admitted to hospital with lacerations to her hand, while her husband had not required medical attention [37]. The Tribunal acknowledged that there were ‘discrepancies’ in the account provided by the victim to hospital staff but found that this was due to the language barrier and the victim’s physical state, which included dizziness [31]. The Tribunal accepted the victim’s version of events and noted that she had been ‘denied a voice’ by Queensland Police [33]. In addition, the Tribunal noted that the perpetrator’s position as the victim’s sponsor gave him ‘considerable power’ over the victim, as she was required to be in a relationship with him for 2 years to be eligible for a permanent visa [36].

SF v Department of Education [2021] QCAT 10 (13 January 2021) – Queensland Civil and Administrative Tribunal

‘Administrative law’ – ‘Applicant and children in hiding to escape domestic violence’ – ‘Application for home education registration’ – ‘Confidentiality provisions’ – ‘Following, harassing monitoring’ – ‘Human rights’ – ‘Non-disclosure of registered address’ – ‘Ongoing risk of harm’ – ‘People with disability and impairment’ – ‘Separation’

Proceedings: Application for external review of the Department’s decision to deny an application for home education registration.

Facts: The applicant and her children had moved in an attempt to escape domestic violence and were forced to hide their location to keep the family safe. The applicant’s former partner had used numerous unlikely resources to locate her. One of the applicant’s children had been diagnosed with conditions affecting their ability to learn, and the applicant applied to the Department of Education to home school the child. Although her application met the requirements for home education, the Department did not grant the application as the applicant did not provide her street number, street name and town name. Where the approved form required details of “residential address” and “address where the home education will be delivered”, the applicant inserted “address suppressed (due to privacy, see attached)” with a town name, a postal address and mobile phone number.

Decision and reasoning: The decision of the Department of Education was set aside and substituted with a decision to grant home education registration for the student.

The Tribunal found that none of the provisions of the Education (General Provisions) Act 2006 (Qld), read together or in isolation, imposed an express obligation on the applicant to disclose her street number, street name and town name (at [9]-[16]). In addition, while the approved form – which was required for the application – asked the applicant to provide details of her “residential address” and “address where the home education will be delivered”, the Tribunal found that the requirements of this will vary according to the individual circumstances of the case, within the context of the overarching objects and guiding principles. Here, the form could not operate “to require SF to disclose these details in circumstances where it compromises her and her family’s safety contrary to those objects and guiding principles” (at [17]-[26]).

The Department made a number of submissions, including that the confidentiality provisions of the Act and its own internal policies were sufficient to ameliorate the risk of unauthorised disclosure. However, the Tribunal was not satisfied that these were sufficient to ameliorate the risk, based on the applicant’s evidence and submissions regarding the circumstances of her and her children (at [29]). As at [30]-[31]:

“The risk for SF is that the confidentiality provisions and policies repose a discretion in departmental officers about the use and disclosure of information, require interpretation by departmental officers and leave it open for a person to apply to the department to access the information under the Right to Information Act 2009 (Qld) and Information Privacy Act 2009 (Qld). Moreover, adding another layer of people with access to SF’s information increases the opportunity for human error or failure, with potentially tragic and irreversible consequences.

The more information SF is required to disclose and the more people who have access to that information, the greater the risk to her and her children…”

Moreover, while it was not strictly necessary to consider the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) as the Tribunal found that the applicant had provided sufficient information to meet the procedural requirements of the application form, the Tribunal was satisfied of substantial compliance in any event (at [35]-[41]).

Finally, the Tribunal’s decision and interpretation of the statutory provisions was compatible with the Human Rights Act 2019 (Qld). As at [46]-[47]:

“SF and her children have moved to escape domestic violence. They are still at risk of harm. The child she seeks to home school has a dual diagnosis of conditions affecting the child’s ability to learn, sufficient to constitute an impairment and therefore a protected attribute under the Anti-Discrimination Act 1991 (Qld). SF has identified that her child learns best with one-on-one educational support and has tailored a detailed, goal-directed home education program suited to the child’s needs. An interpretation that would mandate SF to provide her street number, street name and town name before granting her application for home education in these circumstances, is not an interpretation that least infringes her and her family’s human rights.

Moreover, the Tribunal does not accept this interpretation limits human rights only to the extent that is reasonable and demonstrably justifiable. The Tribunal accepts SF’s evidence of the serious risk to her and her family from an interpretation mandating her to disclose her street number, street name and town name. The Tribunal does not accept that the confidentiality provisions of the Act and the Department’s own internal policies are sufficient to uphold her children’s right to protection in their particular circumstances.”

An interpretation requiring the applicant to disclose her street number, street name and town name was not necessary to achieve the purposes of ensuring the child was properly registered and the applicant was able to be contacted in circumstances where she had provided a postal address, mobile number and details of her circumstances (at [48]).

Last updated: July 2024