Alvarez v Lancaster

[2010] QDC 376

[2010] QDC 376

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RAFTER SC
No 3251 of 2009

ELIZABETH ALVAREZ	Appellant
and
CHERYL ANN LANCASTER	Respondent
BRISBANE ..DATE 13/09/2010 JUDGMENT

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HIS HONOUR: On 21 October 2009 the Magistrates Court at	1
Brisbane made an order that the appellant keep the peace and be of good behaviour towards the respondent for 12 months.
The appellant appeals against that order on 20 grounds that

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are set out in her outline of argument filed 29 March 2010.

The facts are helpfully set out in the written submissions of submissions were filed 4 May 2010.

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The Magistrate's careful reasons show that her Honour analysed the evidence and applied the appropriate standard of proof. There is no substance in the appeal and it should be dismissed.

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In her submissions this afternoon, the appellant repeatedly asserted that the respondent's case was based on lies.

For completeness, I should set out each of the grounds of

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appeal and the contentions of Mr Wagner of counsel which I
accept in respect of each of those grounds.

The appellant and the respondent lived at the same unit complex at Enoggera in the relevant period. Although they

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were initially friendly, their relationship broke down and
ultimately led to the events that brought the matter before

the Magistrates Court.

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Ground 1 involves a contention that the Magistrate erred in	1
not adjourning the matter to enable the appellant to rectify the lack of payment of fees to Telstra in respect of the issue of a subpoena.

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As Mr Wagner indicates in his written outline, there was no issue about a need to adjourn the trial in respect of this matter at the hearing itself. The appellant was given a fair opportunity to present her case and call witnesses.

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The Magistrate explained the trial process to the appellant
and permitted the appellant's daughter to represent her during

the course of the trial.

The appellant, in my view, had ample opportunity to prepare

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for the matter and organise her witnesses.

There is no substance in ground 1.

Ground 2 involves a contention that the Magistrate erred in

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not admitting into evidence the criminal history of the
respondent.

In my view, the Magistrate was correct in refusing to admit that evidence. It was irrelevant and subject to the Criminal

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Law (Rehabilitation of Offenders) Act 1986 and, in those
circumstances, as I have said, the Magistrate was correct not

to have received that evidence.

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Ground 3 is that the Magistrate erred in finding that the	1
evidence of a Mr Delaney was of no assistance to the appellant.
I accept Mr Wagner's submission that the Magistrate was

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correct to conclude that the evidence of Mr Delaney was
irrelevant as it did not concern evidence of threats or
grounds of complaint under the Peace and Good Behaviour Act

1982.

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Ground 4 is that the Magistrate erred in finding that the appellant adduced evidence in support of her case for an improper purpose of giving a bad impression of the respondent.

It was indeed open to the Magistrate to draw the conclusions

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which her Honour did.

The same may be said of the remaining grounds of appeal which really involve contentions that the appellant did not have a proper opportunity to present her case. A careful perusal of

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the trial transcript shows that that is not so.

It was open to the Magistrate to reach the conclusion that she did and, in my view, there is no substance in any of the contentions.

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I accept the submissions as set out in Mr Wagner's written outline filed 4 May 2010. That means the appeal must be dismissed. I therefore make the following orders:	1-4	JUDGMENT	60
(1) Appeal dismissed.
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(2) I order that the appellant pay the respondent's costs of transmission to the solicitors for the respondent.

the appeal fixed at $1500, to be paid by the appellant to the

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