EBH v DH

[2001] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

EBH v. DH [2001] QDC 016

PARTIES:

EBH  Appellant
And
DH                    Respondent

FILE NO/S:

D 4854 of 1999

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

24 January 2001

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2000

JUDGE:

Judge Samios

ORDER:

Appeal dismissed

CATCHWORDS:

Words and Phrases - wilful injury – domestic violence;
Domestic Violence (Family Protection) Act 1989 s.9, s.11(1), s.14(1), s.20(1), s.84(2) and (3);

Shaw v. The Queen (1952) 85 CLR 365;
Briginshaw v, Briginshaw (1938) 60 CLR 336;
Regina v. Chan–Fook (1994) 1 WLR689;
TheQueen v. Scatchard (1987) 27 A Crim R 136);
Devries v. Australian National Railways Commission (1993) 177 CLR 472;
Re: Lyndon (1987) 31 A Crim R 111

COUNSEL:

Mr C Reid for the appellant

SOLICITORS:

Ron Sherman Solicitor for the appellant

1. This is an appeal against the decision of the learned Magistrate at Wynnum (the Magistrate) who on 16 November 1999 pursuant to the provisions of the Domestic Violence (Family Protection) Act 1989 (the Act) ordered that the appellant be of good behaviour for a period of two years subject to four standard conditions.

1. Section 20(1) of the Act provides:-

“A court may make an order against a respondent spouse if the court is satisfied that –

(a)         the respondent spouse has committed an act of domestic   violence against the aggrieved spouse; and

(b)          the respondent spouse –

(i)         is likely to commit an act of domestic violence again …”

Domestic violence is defined in s.11 of the Act as follows:-

“(1)       “Domestic Violence” is any of the following acts that a person had committed against his or her spouse –

(a)        wilful injury;

(b)        wilful damage to the spouse’s property;

(c)        intimidation or harassment of the spouse;

(d)        indecent behaviour to the spouse without consent;

(e)        a threat to commit an act mentioned in paragraphs (a) to (d).”

Sub-sections (2) and (3) of s.84 of the act provide evidentiary provisions relevant to this appeal.  Those provisions are:-

“(2)        In any proceeding with the view to –

(a)making a protection order or a temporary protection order …

the court or Magistrate may inform itself, himself or herself in such manner as it or the Magistrate thinks fit and is not bound by the rules or practice as to evidence.

(3)The court or Magistrate need not have the personal evidence of the aggrieved spouse before making a domestic violence order.”

Further, s.14(1) of the Act provides that an application for a protection order may be made only by –

(a)an aggrieved spouse; or

(b)an authorised person mentioned in sub-section (2); or

(c)a police officer mentioned in sub-section (3).”

Finally, s.9 of the Act provides:-

“If a court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.”

1. Before making the order he did the Magistrate was satisfied that the appellant had committed an act of domestic violence against his wife and was likely to commit…