Jaw v Reed - [2018] QDC 178

DISTRICT COURT OF QUEENSLAND

CITATION:

JAW v Reed [2018] QDC 178

PARTIES:

JAW

(Appellant )

and

CONSTABLE JOSHUA REED

(First Respondent)

and

TG

(Second Respondent)

FILE NO/S:

BD3690/17

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Ipswich Magistrates Court

DELIVERED ON:

03 September 2018

DELIVERED AT:

Ipswich

HEARING DATE:

02 August 2018

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1. The appeal is dismissed

CATCHWORDS:

DOMESTIC VIOLENCE APPEAL – APPEAL AGAINST PROTECTION ORDER – where appellant sought hearing de novo – where appeal conducted by way of rehearing on the record – whether evidence is consistent with an episode of domestic violence having occurred – whether the learned acting Magistrate erred in deciding a protection order is necessary or desirable

COUNSEL:

The appellant appeared in person

Ms EF Kennedy (A/Senior Legal Officer) for the respondent

SOLICITORS:

Queensland Police Service Legal Division for the respondent

On 3 August 2017 an acting Magistrate made a protection order against the appellant under the Domestic and Family Violence Protection Act 2012 (DFVPA). On the same day the acting Magistrate dismissed an application by the appellant for a protection order under that legislation. The person against whom he had sought his order was the aggrieved in the application for an order against him. She is his former partner. They have two children together. For convenience, I shall refer to his former partner as the aggrieved and to him as the appellant.

The appellant appeals against the protection order made against him. He has not appealed against the dismissal of his application.

In making the protection order against the appellant the learned acting Magistrate was satisfied that there had been an act of domestic violence against the aggrieved, which occurred on 17 February 2017. His Honour was further satisfied that it was necessary and desirable that an order be made.

In his notice of appeal the appellant raises numerous grounds. Many of them are misconceived. Before turning to consider them, however, I will address the nature of the appeal.

The nature of the appeal and the application for a hearing de novo

By his notice of appeal the appellant sought a hearing de novo of the proceeding the subject of the appeal. Section 168 of the DFVPA provides:

“168Hearing procedures

(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.

The appellant sought to adduce fresh evidence through additional witnesses, additional material such as phone recordings, text messages and recorded conversations. He also said that he would seek subpoenas to produce evidence. At the commencement of the appeal I heard from the appellant as to why his appeal should proceed as a hearing de novo. Having done so I ruled that it would not proceed as such but rather as a rehearing on the record below.[1]
[1]Although in the course…

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 Jaw v Reed

Details

AGLC: Jaw v Reed [2018] QDC 178
Case: [2018] QDC 178
Decision Date: 03 September 2018

CaseChat Overview and Summary

The case of Jaw v Reed involved an appeal against a protection order issued under the Domestic and Family Violence Protection Act 2012 in Victoria. The appellant, Jaw, sought a hearing de novo to challenge the decision made by the acting Magistrate, Reed, who had determined that a protection order was necessary or desirable. The appeal was conducted by way of a rehearing on the record. The central issue before the court was whether the evidence presented was consistent with an episode of domestic violence occurring and whether the acting Magistrate erred in deciding that a protection order was necessary or desirable.

The court examined the evidence provided in the record and assessed the credibility and weight of the testimonies. It considered the nature of the allegations and the findings made by the acting Magistrate. The court held that the evidence was sufficient to support the finding that an episode of domestic violence had occurred. The court also determined that the acting Magistrate had not erred in deciding that a protection order was necessary or desirable, given the circumstances of the case and the need to protect the victim from further harm.

In light of the findings, the court dismissed the appeal and upheld the decision of the acting Magistrate. The appeal was therefore dismissed, and the protection order remained in effect. The court's decision reinforced the importance of protecting victims of domestic violence and the role of the court in ensuring that protection orders are appropriately granted where necessary.

Orders

Orders of the court

1. The appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	JAW v Reed [2018] QDC 178
PARTIES:	JAW (Appellant ) and CONSTABLE JOSHUA REED (First Respondent) and TG (Second Respondent)
FILE NO/S:	BD3690/17
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012
ORIGINATING COURT:	Ipswich Magistrates Court
DELIVERED ON:	03 September 2018
DELIVERED AT:	Ipswich
HEARING DATE:	02 August 2018
JUDGE:	Horneman-Wren SC DCJ
ORDER:	1. The appeal is dismissed
CATCHWORDS:	DOMESTIC VIOLENCE APPEAL – APPEAL AGAINST PROTECTION ORDER – where appellant sought hearing de novo – where appeal conducted by way of rehearing on the record – whether evidence is consistent with an episode of domestic violence having occurred – whether the learned acting Magistrate erred in deciding a protection order is necessary or desirable
COUNSEL:	The appellant appeared in person Ms EF Kennedy (A/Senior Legal Officer) for the respondent
SOLICITORS:	Queensland Police Service Legal Division for the respondent