Cao v Hedges - [2013] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

CAO v Hedges [2013] QCA 1

PARTIES:

CAO
(applicant)
v
HEDGES, Graham Arthur
(respondent)

FILE NO/S:

CA No 127 of 2012
DC No 3339 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2012

JUDGES:

Fraser and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal refused.

2.   Applicant’s application for a directions hearing refused.

3.   No order as to costs.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – OTHER MISCELLANEOUS OFFENCES AND MATTERS – where applicant convicted of breaching of a domestic violence order – where domestic violence order later revoked – whether domestic violence order void – whether terms of ouster order were authorised by the Domestic and Family Violence Protection Act 1989 (Qld)

EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER CASES – where applicant contends that a copy of the domestic violence order was not complete – where affidavits and submissions filed after hearing – whether evidence tendered after hearing admissible

Crimes Act 1914 (Cth), s 23F
Domestic and Family Violence Protection Act 1989 (Qld), s 25, s 25A, s 80(1)(b)
Police Powers and Responsibilities Act 2000 (Qld)

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, cited

COUNSEL:

The applicant appeared on her own behalf
D L Meredith for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The applicant has applied for leave to appeal under s 118 of the District Court of Queensland Act 1967 from a decision of a District Court judge dismissing the applicant’s appeal against her conviction in the Magistrates Court of an offence under s 80(1)(b) of the Domestic and Family Violence Protection Act 1989. The offence was that on 20 February 2008 the applicant contravened a domestic violence order made on 12 February 2008, a copy of which order was served on the applicant. No penalty was imposed and no conviction was recorded.

The domestic violence order named the “aggrieved” as HE, the applicant’s daughter. The order included as condition 6 (an “ouster order”) an order which required the applicant to vacate a residence at Redland Bay within 48 hours after service of the order upon her. There was a proviso that that the applicant was “to be allowed access to the said premises, ONLY in the company of a police officer, and at a time suitable to all parties, to collect [the applicant’s] personal property…”.

It was common ground at the trial in the Magistrates Court that the domestic violence order was revoked on 26 February 2008, six days after the date upon which the applicant was found to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao v Hedges

Details

AGLC: CAO v Hedges [2013] QCA 1
Case: [2013] QCA 1
Decision Date: 1 February 2013

CaseChat Overview and Summary

The matter before the court was an appeal by Cao against a conviction for breaching a domestic violence order. The respondent, Hedges, had filed an application to have the appeal dismissed. The dispute reached the court, which was required to determine whether the domestic violence order was void and whether the terms of the ouster order were authorised by the Domestic and Family Violence Protection Act 1989 (Qld). The court also needed to decide if the evidence provided by Cao was admissible.

The court held that the domestic violence order was not void, even though it had been revoked after the applicant's conviction. The court found that the revocation did not impact the validity of the order at the time of the offence. Regarding the ouster order, the court determined that its terms were indeed authorised by the relevant Act. The court also ruled that the evidence tendered by Cao, including affidavits and submissions filed after the hearing, was inadmissible as it was not presented in a timely manner.

As a result of these findings, the court dismissed the appeal and denied the applicant's request for a directions hearing. The court did not make any order regarding costs.

Orders

Orders of the court

1. Application for leave to appeal refused.

2. Applicant’s application for a directions hearing refused.

3. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CAO v Hedges [2013] QCA 1
PARTIES:	CAO (applicant) v HEDGES, Graham Arthur (respondent)
FILE NO/S:	CA No 127 of 2012 DC No 3339 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2012
JUDGES:	Fraser and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal refused. 2. Applicant’s application for a directions hearing refused. 3. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – OTHER MISCELLANEOUS OFFENCES AND MATTERS – where applicant convicted of breaching of a domestic violence order – where domestic violence order later revoked – whether domestic violence order void – whether terms of ouster order were authorised by the Domestic and Family Violence Protection Act 1989 (Qld) EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OTHER CASES – where applicant contends that a copy of the domestic violence order was not complete – where affidavits and submissions filed after hearing – whether evidence tendered after hearing admissible Crimes Act 1914 (Cth), s 23F Domestic and Family Violence Protection Act 1989 (Qld), s 25, s 25A, s 80(1)(b) Police Powers and Responsibilities Act 2000 (Qld) Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, cited
COUNSEL:	The applicant appeared on her own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent