Dufficy v Berry - [2006] QDC 252

[2006] QDC 252

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 503 of 2006

THELMA MAY DUFFICY	Appellant
and
VALERIE ESMAE BERRY	Respondent

BRISBANE

..DATE 05/06/2006

ORDER

CATCHWORDS: Appeal under s.222 of the Justices Act 1886 against Magistrate's dismissal of the complaint under the Peace and Good Behaviour Act 1982 - Magistrate did not resolve conflict between complainant's evidence of a threat of assault and the defendant's assertion of alibi - appeal allowed in all the circumstances - matter remitted to Magistrates Court with a direction that "fresh" or additional evidence from both sides bearing on the asserted alibi would be received.

HIS HONOUR: This is an appeal under section 222 of the

Justices Act 1886 by Thelma May Dufficy against the dismissal

by a Magistrate on 24 January this year following a hearing

that day of a proceeding under the Peace and Good Behaviour

Act 1982 ("the Act").

On 6 October 2005 the appellant swore the following complaint:

"The complainant and the 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 p.m. and created 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 the garden hose.

On 6 October 2005 at about 8 a.m. 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 making of that complaint followed the appellant's visit to

police for the third time in as many days in relation to the

respondent, Valerie Esmae Berry. On 4 October, this was in

relation to the hosing. The next occasion was in relation to

the installation of some kind of security lighting by Ms Berry

which the appellant considered created a light nuisance for

her.

At the hearing before the Magistrate the appellant was represented by Dr Jensen, then practising as a solicitor, which has some significance as will appear. Ms Berry was self-represented. If she had any idea of the right procedure to follow in the Court she gave a very good impression of not understanding the procedure. This placed the Magistrate in the awkward but unfortunately increasingly familiar position of having to attempt to do justice according to law with one side "very ably represented", to quote the Magistrate, and the other side bereft of legal or other assistance.

In what was undoubtedly intended as general guidance to

Ms Berry the Magistrate at page 17 of the transcript referred

to the possibility of an alibi defence:

"You'll need to say to her your version...you weren't
     there, that you were in Hawaii having holidays at the
     time. I don't know what your case is, but you will need
     to make sure you put it to her. Do…

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 [2006] QDC 252
Case: [2006] QDC 252
Decision Date: 05/06/2006

CaseChat Overview and Summary

Thelma May Dufficy appealed against the dismissal by a Magistrate of a complaint under the Peace and Good Behaviour Act 1982. Dufficy alleged that Valerie Esmae Berry threatened to assault her with a knife. Berry denied the allegation and claimed an alibi, stating she was out shopping at the time of the alleged incident. The Magistrate dismissed the complaint due to the conflicting accounts and did not resolve the conflict, leading to Dufficy's appeal.

The legal issues in this appeal were whether the Magistrate correctly applied the Briginshaw standard of proof and whether the Magistrate was required to resolve the conflict between the parties' evidence. The appeal also considered whether the Magistrate properly exercised their discretion under the Peace and Good Behaviour Act 1982.

The court found that the Magistrate did not properly resolve the conflict between Dufficy's and Berry's accounts, as required by section 6(1) of the Act. The court noted that the Magistrate appeared to apply the ordinary civil standard of proof rather than the special Briginshaw standard. The court allowed the appeal and remitted the matter to the Magistrates Court for a fresh determination, with directions to receive additional evidence from both parties. The court emphasised that the Magistrates Court should now resolve the conflict and determine the complaint on the balance of probabilities, applying the Briginshaw standard.

The final orders of the court were that the appeal was allowed, the matter was remitted to the Magistrates Court for a new hearing, and Berry was ordered to pay Dufficy's costs of the appeal, subject to an indemnity certificate under the Appeal Costs Fund Act.

Orders