Dufficy v Berry - [2007] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

Dufficy v Berry [2007] QDC 227

PARTIES:

THELMA MAY DUFFICY

Appellant

AND

VALERIE ESMAE BERRY

Respondent

FILE NO/S:

Appeal 519/07; Mag-00176854/05 (7); Holl-Mag-4644/05

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

1 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2007

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

CRIMINAL LAW – Peace and Good Behaviour order – appeal against refused to make – outcome turned on credibility of witness

Peace and Good Behaviour Act 1982 s 6.

Balenzuela v De Gail (1959) 101 CLR 226 – applied.
Devries v Australian National Railways Commission (1993) 177 CLR 472 – applied.
Fox v Percy (2003) 214 CLR 118 – applied.
Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421 – applied.
Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 – applied.
Rowland v Dawbarn [1925] St R Qd 52 – applied.
Stevenson v Yasso [2006] 2 Qd R 150 – applied.

COUNSEL:

The appellant appeared in person

T.A.C. Winn (Solicitor) for the respondent

SOLICITORS:

The appellant as not represented

South West Brisbane Community Legal Centre for the respondent

This is an appeal from the decision of a magistrate at Holland Park on 1 February 2007 to dismiss the appellant’s complaint under the Peace and Good Behaviour Act 1982 (“the Act”). The appeal is brought under s 222 of the Justices’ Act 1886 and is to be dealt with by way of rehearing: s 223.

The proceeding

The proceeding began on 6 October 2005 when the appellant swore a complaint that the respondent had threatened to assault or to do any bodily injury to her. The grounds of the complaint as stated in the complaint were as follows:

“The complainant and defendant live in a Queensland Housing Commission cluster of units in Mansfield. On 4 October 2005 the defendant’s daughter Lauren rattled the wooden gate near the complainant’s unit at about 8.30 to 9.00 pm and crated considerable noise as dogs started barking. The complainant got up from her bed to investigate the noise and was hosed by the defendant who was standing nearby with a garden hose. On 6 October 2005 at about 8.00 am the defendant approached the complainant near her car and said: ‘You want to be careful or you might wake up with a knife in your gut’. The complainant is now in fear of her.”

The complaint was in the form provided under the Act. Presumably the justice before whom the complaint was made was satisfied that it was substantiated to the justice’s satisfaction and that it was reasonable in the circumstances for the complainant to be in fear of the defendant (s 4); a summons was issued on the complaint returnable at the magistrates court at Holland Park on 11 November 2005. Under s 6(1) the magistrates court before which the defendant appears “shall hear and determine the matter of the complaint”.

The complaint was contested by the respondent, and there…

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 Dufficy v Berry

Details

AGLC: Dufficy v Berry [2007] QDC 227
Case: [2007] QDC 227
Decision Date: 1 October 2007

CaseChat Overview and Summary

Dufficy v Berry was a case heard in the Court of Appeal in Queensland, where the appellant sought to overturn a decision refusing to grant a Peace and Good Behaviour order. The dispute arose from an incident involving the appellant and the respondent, where the appellant was accused of engaging in threatening and intimidating behaviour. The primary concern was whether the appellant's conduct warranted the imposition of a Peace and Good Behaviour order, designed to prevent such behaviour in the future.

The legal issues before the court involved the interpretation of the relevant statutory provisions and the evaluation of witness credibility. The court had to determine whether the appellant's conduct indeed constituted a threat to the peace and good behaviour of the respondent and whether the lower court's refusal to grant the order was justified based on the evidence presented. A significant focus was on the weight and reliability of the evidence provided by the sole witness, whose credibility was central to the outcome of the appeal.

The court concluded that the lower court's decision was sound, given the evidence presented. It found that the sole witness's testimony was sufficiently credible and comprehensive to support the refusal of the order. The court emphasised that the credibility of witnesses, particularly in cases involving personal interactions and subjective experiences, was a matter for the lower court to determine. As such, the appeal was dismissed, and the appellant was ordered to pay costs.

Orders

Orders of the court

Appeal dismissed with 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:	Dufficy v Berry [2007] QDC 227
PARTIES:	THELMA MAY DUFFICY Appellant AND VALERIE ESMAE BERRY Respondent
FILE NO/S:	Appeal 519/07; Mag-00176854/05 (7); Holl-Mag-4644/05
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Holland Park
DELIVERED ON:	1 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 September 2007
JUDGE:	McGill DCJ
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	CRIMINAL LAW – Peace and Good Behaviour order – appeal against refused to make – outcome turned on credibility of witness Peace and Good Behaviour Act 1982 s 6. Balenzuela v De Gail (1959) 101 CLR 226 – applied. Devries v Australian National Railways Commission (1993) 177 CLR 472 – applied. Fox v Percy (2003) 214 CLR 118 – applied. Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421 – applied. Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 – applied. Rowland v Dawbarn [1925] St R Qd 52 – applied. Stevenson v Yasso [2006] 2 Qd R 150 – applied.
COUNSEL:	The appellant appeared in person T.A.C. Winn (Solicitor) for the respondent
SOLICITORS:	The appellant as not represented South West Brisbane Community Legal Centre for the respondent