M v Gray

[2010] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

M v Gray [2010] QDC 014

PARTIES:

M

Appellant

V

MICHAEL ALLAN GRAY

Respondent

FILE NO/S:

DC 10 of 2007

DIVISION:

Appellant

PROCEEDING:

Appeal

ORIGINATING COURT:

Bundaberg Magistrates Court

DELIVERED ON:

9 February 2010

DELIVERED AT:

Bundaberg

HEARING DATE:

5 February 2010

JUDGE:

Clare SC DCJ

ORDER:

1. The appeals against conviction and sentence are dismissed.

2. The appeal against the Protection Order made on 3 July 2007 is upheld. The Protection Order is set aside and M’s criminal history is to be corrected to reflect that.

CATCHWORDS:

APPEAL– Domestic Violence – Protection order under the Domestic and Family Violence Act

FAMILY LAW – Domestic Violence – Protection order under the Domestic and Family Violence Act; breach of non contact orders; power to make fresh protection order on conviction; whether a breach of non contact order amounts to domestic violence

Bottoms v Rogers [2006] QDC 080.

Domestic and Family Violence Protection Act 1989 (Qld) ss 11, 30.

COUNSEL:

Ms S Farnden for the respondent

SOLICITORS:

The appellant was self-represented

Director of Public Prosecutions for the respondent

1. M was convicted after trial of 2 breaches of a domestic violence order in favour of his former partner. He filed a notice of appeal recording details of the convictions, sentence and related protection order. M represented himself in the Magistrates Court and on the appeal.

1. The domestic violence order was made on 30 May 2005. It included a condition that M not contact A. The 2 breaches were particularised as a telephone call made to A on 2 September 2006 and a letter received by post on 4 September 2006.

1. The evidence that M did in fact telephone and write to A was very strong. A gave evidence that she had recognised his voice and his handwriting. 15 minutes after the telephone call, she recorded a message from M’s sister, urging A to ring M. M’s fingerprint was on the letter. The letter spoke of property and custody matters between the couple. At trial, M did not dispute the allegations that he had made the call and sent the letter. In fact he accepted that he had written the letter and that he may have made the telephone call. Of the latter, he said that he could not recall it due to stress. His focus was on explaining why he had made contact to emphasise the absence of any malicious intention.

1. The relevant condition of the protection order was:-

“The respondent is not to contact, try to contact, or ask someone else to contact the aggrieved directly or indirectly (by telephone or any other means of communication) except for contact with the child of the aggrieved and the respondent as per written agreement or in accordance with a Family Court order.”

1. In September 2006 there was no relevant written agreement or Family Court order in place. Therefore, at that time, the exception for contact did not apply. M was prohibited from contacting A in any way…