Kirby v Phelan - [2003] VSC 43

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7256 of 2002

ANTHONY JAMES KIRBY	Plaintiff
v
JARROD NATHAN PHELAN	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2003
DATE OF JUDGMENT:	6 February 2003
CASE MAY BE CITED AS:	Kirby v Phelan
MEDIUM NEUTRAL CITATION:	[2003] VSC 43

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EVIDENCE – appeal from magistrate – intervention order - inadmissible hearsay evidence admitted – whether there was any evidence on which magistrate could have found in favour of the respondent - s.4(1)(b) Crimes (Family Violence) Act 1987

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Ginsbourg	Victorian Aboriginal Legal Service
For the Defendant	Mr B.M. Dennis	Victorian Government Solicitor

HIS HONOUR:

This is an appeal from an order made pursuant to the Crimes (Family Violence) Act 1987 by the Swan Hill Magistrates' Court on 13 August 2002. An application for such an order had been made by a police officer, Jarrod Phelan, pursuant to s.7(1)(a) of the Act on 1 August 2002 in respect of a person, Joyce Kennedy, whom the complainant alleged lived in an intimate relationship with the appellant.
At the commencement of the case the magistrate expressed some concern that the aggrieved family member in respect of whom the order was sought, namely Joyce Kennedy, did not want the order to be made. However the Act does not require the aggrieved family member to be actually aggrieved; the definition in s.3(1) of the Act merely requires that the aggrieved family member be the family member whose person or property is the subject of the complaint for an order.
The matter was conducted by a police prosecutor who called only one witness, Senior Constable Michael Francis Manex. The appellant, an illiterate Aborigine, was unrepresented.
Senior Constable Manex gave evidence of a conversation with the aggrieved family member which extended over some three pages of transcript. If that evidence had been admissible it might itself have gone a long way towards establishing a basis for the making of the intervention order which the magistrate made. However, the first question of law raised by this case, namely the admissibility of that evidence, must be answered in the negative. It was the clearest inadmissible hearsay and whilst no objection was taken by the appellant to its admission into evidence, any possible rule that hearsay admitted in a civil proceeding without objection may be relied upon as evidence(if such rule exists) could not, for obvious reasons, possibly apply to someone in the circumstances of the appellant.
The other evidence given by Senior Constable Manex related to his finding firearms and other weapons at the appellant's premises, some of which at least he was not entitled to possess. He also tendered a document containing what was said to be extracts from the appellant's criminal record; an exhibit which the evidence before me discloses was lost by the Magistrates’ Court. As the magistrate commented that this evidence did not go, "directly to the…

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 Kirby v Phelan

Details

AGLC: Kirby v Phelan [2003] VSC 43
Case: [2003] VSC 43
Decision Date: 6 February 2003

CaseChat Overview and Summary

The appeal in Kirby v Phelan arose from a decision made by a magistrate regarding an intervention order under the Crimes (Family Violence) Act 1987. The parties involved were the appellant, Kirby, and the respondent, Phelan. The dispute centred around the magistrate's decision to admit hearsay evidence that was deemed inadmissible, and whether there was sufficient evidence to support the magistrate's finding in favour of the respondent.

The primary legal issue the court had to address was whether the magistrate erred in admitting hearsay evidence that should have been excluded under the rules of evidence. Additionally, the court needed to determine if there was any evidence upon which the magistrate could have reasonably found in favour of the respondent. This involved a review of the statutory provisions under section 4(1)(b) of the Act to assess the adequacy of the evidence presented.

In delivering the judgment, the court held that the magistrate had indeed erred in admitting the hearsay evidence. The court found that the hearsay evidence was inadmissible and not subject to any exceptions. Consequently, the court concluded that there was no admissible evidence on which the magistrate could have based a finding in favour of the respondent. The court thus determined that the magistrate's decision was flawed due to the improper inclusion of hearsay evidence. As a result, the appeal was allowed, and the intervention order was set aside.

Orders