O v Ellison
[2010] QDC 321
•13 August 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
O v Ellison [2010] QDC 321
PARTIES:
O
AppellantV
STUART MARK ELLISON
RespondentFILE NO/S:
BD945/09
DIVISION:
Appellant
PROCEEDING:
Appeal
ORIGINATING COURT:
Richlands Magistrates Court
DELIVERED ON:
13 August 2010
DELIVERED AT:
Brisbane
HEARING DATE:
23 November 2009 & 12 August 2010
JUDGE:
Ryrie DCJ
ORDER:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld and in lieu of the order of the Magistrate made on the 10th March 2009, I order that a conviction be recorded but no further punishment be imposed.
3. That the extension of the order for a further period of 2 years from the 10th March 2009 be set aside and the appellant’s criminal history be corrected to reflect the orders I have just made.
CATCHWORDS:
APPEAL – Domestic Violence – Protection order under the Domestic and Family Violence Protection Act 1989
FAMILY LAW – Domestic Violence – where a protection order under the Domestic and Family Violence Protection Act 1989 was in force – whether appellant breached non-contact condition – whether Magistrate had power to extend protection order – whether a breach of the non-contact condition amounted to an offence that involves domestic violence.
Domestic and Family Violence Protection Act 1989 (Qld) ss 11(1); 30(2); 63; 65 & 80(1)(a)
Evidence Act 1977 (Qld) s 59
Justices Act 1886 (Qld) ss 222 & 223Bottoms v Rogers [2006] QDC 080, applied
Gallagher v The Queen (1986) 160 CLR 392, applied
M v Gray [2010] QDC 014, followed
Mbuzi v Torecetti [2008] QCA 231, applied
Re Mazzone (1985) 21 A Crim R 32, cited
COUNSEL:
The appellant appeared on his own behalf
C Cook for the RespondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions for the Respondent
Introduction
This is an appeal under s 222 of the Justices Act 1886 against conviction and in respect of a penalty which was imposed by a Magistrate on 10th March 2009 upon finding the appellant guilty of breaching a non contact condition of a domestic violence order. There is also an appeal under s 63 of the Domestic and Family Violence Protection Act 1989 (the Act) against the decision of a Magistrate to vary a domestic violence order issued on 15th October 2007 by extending the period for 2 years.
23rd November 2009 hearing
By notice of appeal filed 7 April 2009, the Appellant sets out the grounds of appeal that he sought to rely on for the purpose of the hearing. The Respondent maintained however that it did not receive the Appellant’s summary of argument filed 13th August 2009. Notwithstanding this fact, this matter proceeded before me on 23rd November 2009, after allowing the Respondent time to peruse the summary, the Appellant was allowed to proceed with his argument.
After some considerable discussion with the Appellant, it became apparent that the main thrust of the Appellant’s argument on appeal was that he was saying that the Magistrate had fallen into error when he found that the Appellant had been the author of the letter found in one of the children’s school bags upon their return from visiting him (see photos marked as Ex 2) and as such, the Magistrate was not entitled to find that the Appellant had breached a condition of the Domestic Violence Order (Exhibit 1) namely condition (3) of that order which stated that the Appellant was prohibited from having or attempting to have ANY contact (including by any means of communication) either directly or indirectly in effect, not to have any contact direct or otherwise with the named aggrieved person (his ex partner Ms C) during its’ duration except as otherwise provided for. It also became apparent during the discussion, that the Appellant also maintained, as he had done in the lower proceedings, that he was not the author of that letter and that he had simply been ‘set up’ by his ex partner.
A careful reading of the lower court proceedings transcript reveals that the Appellant asserted several times during the course of that hearing that he had been ‘set up’ by his ex partner, that he was not the author of any of the writings in question. Indeed he denied having any idea where the writing on the bags had come from (p 1-16); denied that he had written the letter in question (p 1-17); that he believed his ex partner had written the letter in question (p 1-23) to set him up (p1-25); that perhaps even her partner Mr K or one of her kids had done it and again denied that it was his handwriting (see p 1-24). He also stated again at p 1-32 that he did not know where the letter or the writing on the school bags had come from as ‘they had nothing to do with him’. In light of the Appellant’s persistent denial in respect of having been the author of the writings in question which he maintained before me, I considered that he should be given at least the opportunity of obtaining (with legal aid assistance) an expert handwriting report in order to allow him to lead additional evidence at this appeal on this point. I felt the Appellant should have this opportunity afforded to him in light of the evidence which the Magistrate had accepted, namely that of Ms C and Constable Ellison regarding their respective belief that the handwriting in question was in fact that of the Appellant.
While arguably, this evidence could have been lead at his trial, and therefore strictly speaking should not be allowed now in accordance with the principles enunciated in Gallagher v The Queen (1986) 160 CLR 392, the Appellant was self represented at the lower proceedings and was only given the police brief of evidence just prior to the commencement of the hearing that day (page 28 com line 52). As such, I have taken a liberal approach in my determination to find that special grounds were made out pursuant to s 223(2) Justices Act which allows the Appellant the opportunity to lead new evidence for the purpose of this appeal. The hearing of the appeal was adjourned to 29th January 2010 in order to give the Appellant that opportunity.
29th January 2010 hearing
Due to a medical condition which prevented the Appellant from attending, the hearing was adjourned for a subsequent mention.
16th March 2010 mention
The Appellant indicated that he did not wish to lead any new evidence (as it related to question of any handwriting expert). He conceded that he may well have written the letter in question, but had only done so at a time well before the relevant domestic violence order was put in place. In other words, he was prepared to accept that it was his handwriting but did not accept that he had put the letter in the school bag as alleged by his ex partner Ms C or at any time during the duration of the order. In light of those concessions, I set this matter down for the continuation of the hearing of the appeal for the 12th August 2010.
12th August 2010 hearing
Oral submissions were received from Mr Cook on behalf of the Respondent and from the Appellant who again appeared in person.
In effect, Mr Cook maintained that the Magistrate was entitled to find that the Appellant had breached the relevant order and as such, was entitled to make the orders that he did. The Appellant on the other hand argued that even though he accepted that he had written the letter in question, he had only done so at a time much earlier than when the relevant order was made. He stated that he did not accept that he had breached the order in that he denied he had placed the letter into the school bag as alleged by his ex partner.
The Applicable Law
Standard to be met on this Appeal
The appeal is by way of rehearing on the record: s 223 of the Justices Act 1886 and s 65 of the Act. Upon hearing this appeal, it is necessary for this court to give due regard not only to the reasons for the decision of the Magistrate, bearing in mind the clear advantage that he had in seeing and hearing the witnesses who gave evidence before him, but also requires this court to review the evidence, to weigh the conflicting evidence and to draw its’ own conclusions based on the original evidence and on any new evidence allowed by leave: Mbuzi v Torcetti [2008] QCA 231.
A brief summary of the evidence given before the Magistrate included evidence from the Appellant’s ex partner (Ms C), Constable Ellison and the Appellant himself.
In effect, Ms C gave evidence that the children had gone to the Appellant on Thursday afternoon after school for contact purposes. The children then returned to her care on the Friday afternoon (19th September 2008, the date of the offence). It was at that time that she discovered a white envelope containing a letter (ex 2) in one of the children’s school bags. She stated that when she had packed their bags and put their lunches in on the Thursday morning before they went to school, no such envelope was in either bag. She also gave evidence that she recognised the handwriting to be that of the Appellant as she had been in a relationship with him for many years and she had received previous correspondence from the Appellant during the course of their relationship.
Constable Ellison gave evidence to the effect that he believed in his opinion that the handwriting the subject of Ex 2 was that of the Appellant as he had previously observed the Appellant’s handwriting on certain fingerprint forms. He stated that, in his opinion, the writing on those forms and the writings the subject of the ex 2 were one of the same.
The Appellant also gave evidence consistent with his continued denial regarding the delivery of the letter as alleged by his ex partner, that she was out to ‘set him up’. He also maintained at that time that he was not the author of the letter in question.
A Review of the Magistrate’s Reasons for Decision
The Magistrate properly stated the onus of proof and the standard of proof to be applied in respect of the charge before him. He relevantly referred to s 80(1)(a) of the Act which provides:
“80 Breach of order or conditions
(1) A respondent must not contravene a protection order, temporary protection order or any other order made under this Act, including a condition imposed by the order, if--
(a) the respondent was present in court when the order was made; or
…”
The Magistrate had before him the evidence given by the Appellant that he was in fact present in court when the relevant order (ex 1) was made and that the four conditions contained in it were explained to him: (1-17).
The Magistrate’s reasons for his decision also recognises that his assessment of the respective witnesses’ creditability was necessary in his determination of the matter. As such, when hearing this appeal, it is necessary for me not only afford the proper respect to the decision of the Magistrate and the findings which he made, but to also bear in mind any advantage that he had in seeing and hearing the witnesses give their evidence. It is apparent from his reasons that the Magistrate preferred the evidence of the prosecution witnesses to that of the Appellant. In particular, he rejected the Appellant’s denial that he had written the letter in question. In coming to the conclusion, he referred to the evidence given by Ms C and Constable Ellison, and the opinions they expressed, which was to the effect that they each recognised the Appellant’s handwriting. In doing so, it is clear that the Magistrate rejected the Appellant’s assertion that he had not written the letter in question and had not placed the letter into the school bag during the children’s visit with him. It is also clear from the Magistrate’s reasons that he accepted the Appellant had the opportunity to place the letter into the school bag during the children’s visit with him which had commenced on the Thursday afternoon before and that in effect, the letter had then made its’ way into the possession of Ms C the next day, namely on Friday 19th September 2008 after she discovered the envelope in one of the children’s school bags upon their return to her care on that day.
As such, the Magistrate found that the Appellant was guilty of the offence charged, namely that he had contravened a condition of the relevant order in place, by having indirect contact with Ms C (by delivery of the letter in the manner as described by her). I respectfully agree with the Magistrate’s conclusion in this regard. There was in my mind sufficient evidence available to the Magistrate to conclude that the Appellant did in fact have the opportunity to place the letter in question into one of the children’s school bags during their visit with him on the Thursday in question, (which the Appellant now accepts for the purpose of this appeal, that he had in fact written albeit at a much earlier time (see Transcript of 12th August 2010, page 21 l 33 but see page 28 l 49 - page 29 l 38). The Magistrate was entitled to prefer the evidence of Ms C to that of the Appellant based on his assessment of them while they were giving evidence notwithstanding the Appellant’s assertions that she was out to ‘set him up’. He was also entitled to find that certain aspects of the letter was indicative of the Appellant’s feelings in respect to Mr K at that time, who the Appellant believed was Ms C’s partner. In that regard, the Magistrate was entitled to reject the Appellant’s evidence that he had only found out approximately 6 weeks before the Magistrates court hearing (10th March 2009) that his children were calling Mr K ‘Dad’, a fact he himself stated he was not happy about (1-27). While it is no longer a point of contention in light of the Appellant’s concession to this court that he did in fact write the letter in question, the Magistrate was nevertheless entitled notwithstanding to accept the opinions of Ms C and Constable Ellison as it related to the question of the identification of the author of the handwriting in question: Re Mazzone (1985) 21 A Crim R 32. This court is also entitled in any event to make its’ own determination in respect of any comparison of disputed writings: Evidence Act 1977 s 59. The letter in question compared with the documents submitted by the Appellant on this appeal sufficiently in my mind demonstrates the author to be the same.
The Appellant also argued before me that the Magistrate had been unfair in his dealings with him. He stated that he had applied for an adjournment but was denied it and that the Magistrate ‘shut him down’ every time he tried to speak. I cannot accept those assertions. The lower court transcript does not reveal any application for an adjournment being made by the Appellant and a careful reading of the transcript does not show that the Magistrate treated the Appellant in the manner described. The Appellant also complained that he only got the police brief of evidence on the morning of the hearing. While I am prepared to accept this as true, it is difficult to see how the Appellant was disadvantaged as he not only gave evidence but asked questions of the respective witnesses that were called for the prosecution which demonstrates that he had a good grasping of all of the issues being ventilated at hearing.
Having reviewed the whole of the evidence now available for consideration on this appeal, I am satisfied that the Appellant was in fact guilty of the offence charged and that there is sufficient evidence now available to be satisfied of the fact beyond reasonable doubt.
The Magistrate convicted and fined the Appellant $400, in default 8 days imprisonment, time allowed 3 months to pay in respect of the breach proven. He also extended the protection order that was made on the 15th October 2007 for a further period of 2 years which was due to expire on the 20th March 2009. The bench charge sheet reveals that the Magistrate ordered that extension pursuant to s 30(2) of the Act in addition to the penalty which he had just imposed for the breach for which he had found the Appellant guilty. Section 80(1) of the Act provides for a penalty of 40 penalty or 1 year imprisonment upon the contravention of a protection order including a condition imposed by that order, relevantly condition (3) of the ex 1. The Magistrate was entitled to impose by way of sentence for the breach proven, a monetary penalty. The contravention in this case was the indirect contact with Ms C by the delivery of a letter in the manner described. It must be said however that the general tenor of that letter was more directed at Mr K (not a named aggrieved person under the relevant order) and while arguably Ms C may well have felt the contents were ‘quite abusive to her and her ex husband, Mr K (1-5), and may well have reflected how the Appellant was feeling towards her (1-8), (as opposed to how it made her feel), it has to be said that on any view of it, the offending in question was at the very lower end of seriousness insofar as any contravention is concerned.
In order for this court however to set aside any sentence passed, it must be demonstrated that the sentence was manifestly excessive in all the circumstances. The Magistrate had before him prior entries which he took into account when determining the penalty he ordered. As such, while the penalty may be considered by some to be at the higher end for the level of offending, I do not consider it to be excessive at first blush on its’ face. However, in conjunction with the imposition of a 2 yr extension that was ordered in respect of the order which was due to expire on the 20th March 2009 (some 10 days after the lower court proceedings), and in light of the fact that the appellant has been under that order for approximately 17 months (the invalidity of which I shall discuss shortly), I have come to the conclusion that the penalty which was imposed should be set aside in this particular case. See s 65(2) of the Act where an appeal under the Act against an order does not stay the operation of the order. In lieu, I order that having determined that the breach was proven, that a conviction is recorded but that no further punishment be imposed.
I shall now deal with the question of invalidity.
When varying the order that was in force, it is clear that the Magistrate acted under the power provided for in s 30(2) of the Act. Section 30(2) of the Act states that where a domestic violent order is already in force (as was the case here), the court may consider the order and whether in the circumstances, the order needs to be varied, including for example, by varying the date the order ends and may vary the order if the court considers the order needs to be varied. While that subsection does not refer to an “offence involving domestic violence” perse, it cannot in my mind be read without reference to the section as a whole and in particular with reference to ss(1) which has the specific requirement that where a person pleads guilty or is found guilty of an offence that involves ‘domestic violence’. It follows, that any exercise of the power that exists in ss(2) of that section must also be dependent upon a person either pleading guilty or being found guilty for an offence involving domestic violence. This was not the case here. The Appellant was found guilty only of breaching a non contact condition under that order.
The definition of ‘domestic violence’ is set out in s 11(1) of the Act as:
(a) wilful injury;
(b) wilful damage to the other person's property;
(c) intimidation or harassment of the other person;
(d) indecent behaviour to the other person without consent;
(e) a threat to commit an act mentioned in paragraphs (a) to (d).
Mr Cook for the Respondent argued that the delivery of the letter in question and its’ content fell within either ‘intimidation or harassment’ within s 11. He referred to Ms C’s evidence at the lower hearing to the effect that she found the letter to be quite abusive to her and her ex husband. He also referred to her opinion that the letter reflected in her view at least, the appellant’s feelings towards her.
The reasons for the decision by the Magistrate do not reveal to me that he considered that the offence charge actually involved ‘domestic violence’. It is clear from his reasons that he considered it to be a charge only involving contact in circumstances where the Appellant was required not to do so with Ms C by any means whatsoever. I am assisted by the conclusions of His Honour Judge McGill in Bottoms v Rogers [2006] QDC 080, and Her Honour Judge Clare in M v Gray [2010] QDC 014 in respect of what conduct amounts to either intimidation or harassment. While neither case is exactly on point insofar as its’ facts, I am satisfied that none of the categories that arise in respect of domestic violence set in s 11 of the Act applies. I am therefore unable to accept Mr Cook’s submissions that the letter in question either in its’ content or delivery amounted to intimidation or harassment in all the circumstances. As His Honour Judge McGill observed, intimidation imports a requirement for actual intimidation. There must be proof that the victim was made fearful or overawed with a view to influencing her behaviour. Harassment is a repeated or persistent form of conduct that is annoying or distressing, rather than something that would incite fear. The evidence available on this point at the lower court proceedings lacked sufficient precision in my mind to support any finding that Ms C felt either intimidated or harassed, particularly where the letter was a ‘one off’ and the content was really more directed at Mr K and his involvement with the Appellant’s children, taking them to school and the like, calling him ‘Dad’ and the comment relating to his concerns for the children’s safety while in Mr K’s company. While it is accepted that some of the content was directed at Ms C for example, a reference to Centrelink and any de facto relationship the Appellant believed she was engaged in (rightly or wrongly) at the time and the like, I am still not persuaded, on balance, that the letter amounted to either intimidation or harassment particularly against the ongoing (acrimonious) background that existed between the parties, a fact that was properly acknowledged by the Magistrate in his reasons for decision (1-2).
I therefore make the following orders:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld and in lieu of the order of the Magistrate made on the 10th March 2009, I order that a conviction be recorded but no further punishment be imposed.
3. That the extension of the order for a further period of 2 years from the 10th March 2009 be set aside and the appellant’s criminal history be corrected to reflect the orders I have just made.
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