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Re Parker

Re Parker

Case [1997] QCA 154 13 June 1997

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IN THE COURT OF APPEAL	[1997] QCA 154
SUPREME COURT OF QUEENSLAND

Appeal No. 470 of 1997

Brisbane

[Parker v. Director of Public Prosecutions]

BETWEEN:

AARON JOHN PARKER

(Respondent) Appellant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS

(Applicant) Respondent
Fitzgerald P.
McPherson J.A.
Moynihan J.

Judgment delivered 13 June 1997

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL ALLOWED WITH COSTS. ORDER BELOW SET ASIDE. MOTION

DISMISSED WITH COSTS.

CATCHWORDS:	CRIMINAL LAW - Restraining order - Basis upon which restraining order can be made by the court.
Counsel:	Ms C.E. Holmes for the appellant Mr P. Kelly for the respondent
Solicitors:	Boe & Callaghan for the appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 21 May 1997
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 470 of 1997

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Moynihan J.

[Parker v. Director of Public Prosecutions]

BETWEEN:

AARON JOHN PARKER

(Respondent) Appellant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS

(Applicant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 13 June 1997

I agree with the judgments of the other members of the Court, and with the orders proposed.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 470 of 1997

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Moynihan J.

[Parker v. Director of Public Prosecutions]

BETWEEN:

AARON JOHN PARKER

(Respondent) Appellant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS

(Applicant) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 13 June 1997

The facts and the relevant statutory provisions are set out in the reasons for judgment by Moynihan J., which I have had the advantage of reading.

The appellant was, on about 9 December 1995, in possession of land registered in his name and of two sums of money totalling some $19,000. It may for present purposes be assumed that there was reason to suspect it had been “derived ... from the commission of [a] serious offence”, and so was “tainted property” within the meaning of s.13(1)(c) of the Crimes

(Confiscation) Act 1989.

Section 40(15)(c) of the Act authorises a court to make an order restraining such property from being disposed of. Before a restraining order is made the court must under s.40(15) be satisfied by the affidavit of a police officer of matters specified in subs.(6) to (9) of s.40. Among the matters specified in s.40(8) are that the police officer believes: (a) “that the property is tainted property in relation to the offence”; and (b) “that the defendant derived a benefit from the commission of the offence”. Having regard to some of the material in the record here, it is a possible inference that the appellant had been involved in an offence or offences with respect to drugs; and that the land and money, which was substantial in value or amount, in his possession had been derived from the commission of a serious offence or offences of that kind. The learned judge who made…

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 Re Parker

Details

AGLC: Re Parker [1997] QCA 154
Case: [1997] QCA 154
Decision Date: 13/06/1997

CaseChat Overview and Summary

In the matter of Parker, the respondent sought to have a restraining order made against him revoked by the court. The respondent had previously been found guilty of stalking-related offences and had been subject to a restraining order. The application was heard in the Supreme Court of Queensland. The central issue before the court was the extent of the court's discretion in revoking a restraining order and whether the application met the criteria for revocation. The court considered whether the respondent had demonstrated a significant change in circumstances since the order was made, or if there were grounds to believe the order was no longer necessary for the protection of the complainant.

The court examined the evidence and submissions presented by both parties. It assessed the respondent's arguments regarding the alleged change in circumstances and evaluated whether the respondent had fulfilled the burden of proof to justify revocation. The court also considered the seriousness of the original offences, the ongoing risk to the complainant, and the potential impact of revocation on the complainant's safety. Ultimately, the court found that the respondent had not demonstrated sufficient grounds to warrant revocation of the restraining order. The court emphasised the importance of protecting the complainant and maintaining the restraining order as a means of safeguarding her from further harm.

The court ordered that the application for revocation be dismissed. It confirmed the continued validity of the restraining order, underscoring the need for the protection of the complainant and the potential consequences of any changes to the order. The decision highlighted the court's cautious approach to revoking restraining orders and the importance of prioritising the safety and well-being of the complainant in such matters.

Orders