Police v BAC
[2010] QMC 27
•21 October 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v BAC [2010] QMC 27
PARTIES:
POLICE
(prosecution)
v
BAC
(defendant)
FILE NO/S:
MAG96574/10(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Kowanyama
DELIVERED ON:
21 October 2010
DELIVERED AT:
Kowanyama
HEARING DATE:
21 October 2010
MAGISTRATE:
Bentley JM
ORDER:
Defendant found not guilty
CATCHWORDS:
FAMILY LAW – DOMESTIC VIOLENCE – OFFENCES – whether acts not directed against the aggrieved constitute domestic violence
COUNSEL:
Bowen for defendant
SOLICITORS:
Prosecution on own behalf
ATSILS for defendant
BAC is charged that on 15 May 2010 he contravened a Domestic Violence Protection Order which was made 28 August 2009 in the Magistrates Court at Kowanyama.
The facts are agreed by the parties and are, as follows:
The order was made on 28 August 2009 and contained the condition that the defendant be of good behaviour towards the aggrieved, GAA, and not commit acts of domestic violence against her;
The order was served on the defendant;
on 15 May 2010 the defendant was at the residence he shares with the complainant, GAA, and their children;
the complainant and the children left the house that morning;
in the afternoon the defendant became involved in an argument with other persons and entered the residence and overturned furniture, including two refrigerators, breaking the door of one, smashing a television and a number of photograph frames;
the complainant called police that afternoon and advised that the defendant had been heard to smash things in the house;
the complainant did not return home until the following day by which time the defendant had cleaned up the house and repaired most of the damage caused.
The issue in this case is whether the conduct of the defendant in damaging the property, amounts to a breach of the domestic violence order.
The prosecution submits that it does in that “property” is defined by the Domestic and Family Violence Protection Act 1989 (the Act) to include property that the person owns and that which the person uses and enjoys and “domestic violence” is defined to by s 11 to include wilful damage to another person’s property.
The defence submits that the conduct does not amount to domestic violence as the aggrieved was not present at the time and the conduct was not directed at the aggrieved and the defendant did not intend that the conduct intimidate or threaten the aggrieved.
The defence referred to a number of cases which turned on whether conduct, which was not known to the aggrieved, could amount to intimidation and/or harassment of the aggrieved.
Whilst I have considered those cases and I acknowledge that there are no cases specifically on point, I consider that they are not of assistance in the circumstances of this case. Intimidation and harassment is another type of conduct which can amount to domestic violence and the question in those cases was whether conduct could be intimidating or harassing.
Here, the issue is whether damage to property, not directed at the aggrieved and not carried out in the presence of the aggrieved, can amount to domestic violence under the Act.
Section 3A of the Act provides:
“the main purpose of this Act is to provide for the safety and protection of a person in the case of domestic violence committed by someone else”,
if a domestic relationship exists between the two persons.
The Act, therefore, is concerned only with violence committed in a domestic context.
Domestic Violence is defined by s 11 of the Act which provides:
“Domestic violence is any of the following acts that a person commits against another person if a domestic relationship exists between the 2 persons”
The section goes on to include wilful damage to a person’s property.
However, the definition makes it clear that for an act to be domestic violence it must be an act committed against the other person.
In this case, although the defendant damaged property that was used by the aggrieved, the act was not “committed against her” and therefore, his conduct was not domestic violence as defined by s 11 and I find the defendant not guilty.
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