TS v DT

Case [2019] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

TS v DT

Citation:

[2019] ACTSC 295

Hearing Date:

30 September 2019

DecisionDate:

25 October 2019

Before:

Crowe AJ

Decision:

See [93]

Catchwords:

APPEAL – FAMILY VIOLENCE – Appealing of the decision of a Magistrate to make a final Family Violence Order in accordance with s 34 of the Family Violence Act 2016 (ACT) – whether the Magistrate failed to take proper account of interim orders when making the final orders – whether the Magistrate failed to consider the appellant’s living arrangements before making the final orders – whether the Magistrate failed to give proper weight to the living arrangements of the appellant before making the final orders – whether the Magistrate possessed enough evidence of instances of family violence before making the final orders – appeal dismissed

CRIMINAL LAW – EVIDENCE – Whether evidence of previous convictions relied-upon by the Magistrate should have been excluded – whether an application for leave to appeal out of time is an “instituted” appeal or review – where the Court was on notice as to the existence of the application – application of ss 91 and 92 of the Evidence Act 2011 (ACT) – Magistrate erred in taking account of convictions – error did not lead to miscarriage of justice

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 5081, 5100, 5130

Domestic Violence and Protection Orders Act 2001 (ACT) s 40
Evidence Act 2011 (ACT) ss 91, 92
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 48
Family Violence Act 2016 (ACT) ss 6, 7, 13A, 14, 31, 34, 35 36, 37, 38, 39, 65, 86, 92, 93, 95, 97, 98

Magistrates Court Act 1930 (ACT) s 209, div 3.10.2

Cases Cited:

CM v TM and Anor [2011] ACTSC 53

CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394
Greenwood v Barlee [2018] ACTSC 46

Peverill v Crampton [2010] ACTSC 79

Texts cited:

Australian Law Reform Commission, Evidence (Interim)(ALRC Report 26), Report No 26 (1985) vol 1 para 776

Parties:

TS (Appellant)

DT (Respondent)

Representation:

Counsel

Self-represented (Appellant)

B Hamack (Respondent)

Solicitors

Self-represented (Appellant)

ACT Legal Aid (Respondent)

File Number:

SCA 24 of 2019

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Chief Justice Walker

Date of Decision:         14 March 2019

Case Title:  DT v TS

Court File Number:       FVO 489/2017

Crowe AJ

  1. This is an appeal against a final Family Violence Order (FVO) which was made against the appellant (TS). The respondent (DT) was the “protected person” referred to in the order. The order was made by Chief Magistrate Walker (Chief Magistrate) on
    14 March 2019. The orders of the Chief Magistrate were as follows:

Having heard an application dated 16 October 2017 regarding the behaviour of [TS] (‘the respondent’) in relation to [DT], under section 34 of the Family Violence Act 2016 the Court orders that for a period of 2 years from 14 March 2019:

1. The respondent is…

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TS v DT [2019] ACTSC 295
Case
[2019] ACTSC 295
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CaseChat Overview and Summary

In the case of TS v DT, the appellant, TS, sought to appeal against the decision of a Chief Magistrate to make a final Family Violence Order (FVO) under s 34 of the Family Violence Act 2016 (ACT). The appellant contested the validity of the order on several grounds, including whether the Magistrate had failed to consider interim orders, the appellant's living arrangements, and whether there was sufficient evidence of family violence. Additionally, the appellant argued that the Magistrate had improperly taken into account his prior convictions, which should not have been admitted under s 91 of the Evidence Act 2011 (ACT).

The court had to determine whether the Magistrate's failure to consider the aforementioned factors amounted to a miscarriage of justice. The appellant argued that the Magistrate had not given sufficient weight to his living arrangements and had improperly relied on his previous convictions, which were not admissible under the Evidence Act. The respondent contended that the evidence provided was sufficient to justify the issuance of the final FVO. The court found that while the Magistrate had erred by considering the appellant's previous convictions, this error did not lead to a miscarriage of justice, as the evidence of family violence was otherwise strong.

Ultimately, the court dismissed the appeal, finding that the evidence presented by the respondent sufficiently established the grounds for the final FVO. The court determined that the Magistrate had not erred in a manner that would require the order to be quashed. The court also noted that the appellant had a potential right of appeal against his convictions, which was pending at the time of the hearing. The final order was to remit the charges back to the Magistrates Court for further hearing and determination.

Orders

Orders of the court

See [93]

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ground on which the appellant succeeded was that the Magistrate had erred by admitting into evidence a judgment against the appellant in an earlier matter in which he had been convicted of common assault charges involving the son and the daughter of the parties. The judgment was tendered into evidence and used by the prosecution to establish facts relevant to the new charges. This was in contravention of s 91 of the Evidence Act 2011 (ACT) (Evidence Act). The prosecution (the respondent on that appeal), conceded that the judgment should not have been admitted into evidence and that the Magistrate’s reliance on it led to a miscarriage of justice. That outcome warranted the quashing of the convictions and the remitting of the matter for further hearing and determination in the Magistrates Court. The appellant pressed another ground of appeal. He argued that the evidence called before the Magistrate was insufficient to justify a finding of guilt beyond reasonable doubt in relation to the four matters in which he was convicted. On that basis he sought an acquittal. Her Honour rejected that argument and ultimately remitted the four charges to the Magistrates Court. Those charges were still pending at the time of the hearing before me on 30 September 2019. It is apparent from the above chronology that when the application for a final FVO came before the Chief Magistrate the appellant had a potential right of appeal against his convictions contingent on leave being granted by this Court. That leave was not granted until the day after the Chief Magistrate handed down her decision. In the course of the opening comments of the parties (see T2-5, 21 February 2019), it became clear that: The appellant was self-represented in the hearing before the Chief Magistrate. The respondent was represented by Ms Theodore from the ACT Legal Aid Office. After the issues in contest had been clarified, the respondent gave evidence. She was cross-examined through a Registrar of the Court (see s 48 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)). The appellant also gave evidence and was cross-examined. The following documents were tendered and admitted into evidence: In the course of the appellant’s evidence-in-chief, he informed the court that he had applied to the Supreme Court for leave to appeal from his conviction out of time. There was some debate about this, in the context of s 31 of the Family Violence Act 2016 (ACT) (FVA) (see T 27-30, 21 February 2019). It is clear that both parties wished the matter to proceed. Her Honour decided to adopt that course and the appellant returned to the witness box to complete his evidence. Both parties made submissions. Ms Theodore, for the respondent, submitted that the evidence of the respondent established the grounds for making a final FVO under s 34 of the FVA. Ms Theodore also relied on the fact that the appellant had been convicted of assault in 2008 as a relevant factor, in accordance with sub-s 14(f) of the FVA. Ms Theodore also relied upon the conviction of the appellant in relation to the7 October 2017 events, which she submitted should be given “substantial weight”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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