D v G

[2004] QDC 477

DISTRICT COURT OF QUEENSLAND

CITATION:

Dowse v Gorringe [2004] QDC 477

PARTIES:

REECE KEVIN DOWSE

Appellant

v

KENNETH GORRINGE

Respondent

FILE NO/S:

D3730/03;  D162/04;  MAG11180/03;  BEAU-MAG337/03

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane;  Magistrates Court, Beaudesert

DELIVERED ON:

3 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2004

JUDGE:

McGill DCJ

ORDER:

1.  Appeal D3730/2003 is allowed, the decision of the magistrate is set aside, and in lieu thereof a verdict of acquittal is entered.

2.  Appeal D162/2004 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – Domestic violence – whether breach of protection order – whether failure to be of good behaviour – whether intimidation.

CRIMINAL LAW – Domestic violence – breach of protection orders – whether failure to be of good behaviour – whether intimidation.

Domestic and Family Violence Protection Act 1989 s.80(1).

Bailey v Costin [1993] QCA 404 – cited.

Barrow v Ongheen (Rockhampton appeal 1/97, Nase DCJ, 1.5.97, unreported) – not followed.

Higgins v Goldfinch (1981) 26 SASR 364 – considered.

Ferguson v Kazakoff [2001] 2 Qd R 320 – considered.

R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330 – considered.

COUNSEL:

The appellant appeared in person
M A McCormack for the respondent

SOLICITORS:

The appellant was not represented
Director of Public Prosecutions for the respondent.

1. These are two appeals from decisions of magistrates convicting the appellant of offences against s 80(1) of the Domestic and Family Violence Protection Act 1989 (“the Act”), in that he contravened a protection order. On 20 August 2003 the appellant was convicted following a summary trial of breaching the order on 15 January 2003. He was fined $500 and a conviction was not recorded. He has appealed on the ground that the conviction is unsafe and unsatisfactory at law. Before that appeal was heard, the appellant was on 7 November 2003 convicted of contravening the protection order on 7 January 2003, following another summary trial. He was fined $200 and a conviction was recorded. He has appealed on the grounds that his conviction is unsafe and unsatisfactory at law, and that the sentence was manifestly excessive, in that a conviction should not have been recorded.

1. The protection order relied on was one made in the Magistrates Court on 1 May 2002.  The order was made in favour of the appellant’s ex-wife, who was the “aggrieved spouse” for the purposes of that order.  The appellant was present when the order was made.  The relevant condition of the temporary protection order was that the appellant be of good behaviour towards the aggrieved spouse and not commit domestic violence.

The incident on 15 January 2003

1. The aggrieved spouse in her evidence conceded that there was no Family Court order in place dealing with the rights of the parties in relation to the four children of the former marriage:  p.8.  There had been an arrangement made between her and the appellant that she would give the appellant access to the children, whom she said he had not seen for some…