Barrow v Ongheen
[1997] QDC 134
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Barrow v Ongheen[1997] QDC 134
Barrow v Ongheen[1997] QDC 134
DISTRICT COURT | No 1 of 1997 |
APPELLATE JURISDICTION
JUDGE NASE
CARL KEITH BARROW | Appellant |
and
KEVIN VINCENT ONGHEEN | Respondent |
ROCKHAMPTON
DATE 12/05/97
JUDGMENT
HIS HONOUR: This is an appeal by Carl Keith Barrow (the appellant) from his conviction in the Magistrates Court at Rockhampton on 9 December 1996 for a breach of a Domestic Violence Order.
The appeal is brought under the provisions of section 222 of the Justices Act. Such an appeal is to be heard and determined on the evidence and proceedings before the Stipendiary Magistrate unless a rehearing is either ordered by the Court or agreed to by the parties (section 223 Justices Act). This appeal proceeded on the material before the Stipendiary Magistrate, Mr Lynn.
The grounds of appeal are set out in the Notice of Appeal. They are: one, that there was insufficient evidence that the defendant breached the Domestic Violence Order dated 23 November 1993 by committing an act of domestic violence against the aggrieved spouse; two, that the verbal argument between the defendant and the aggrieved spouse was not an act of domestic violence in that it did not constitute intimidation or harassment; and, three, that the Magistrate could not make a finding on the evidence that the defendant threatened or used wilful injury to the aggrieved spouse in breach of the said Domestic Violence Order. The third ground of appeal was not pursued by Mr Crow.
The first and second grounds of appeal were pursued. Put shortly, Mr Crow argued there was no satisfactory evidentiary basis for Mr Lynn SM's finding that the appellant's conduct constituted intimidation or harassment of the aggrieved spouse. Mr Crow also argued there was no satisfactory evidentiary basis for a conclusion the appellant knowingly breached the relevant Domestic Violence Order.
The primary facts found by Mr Lynn SM were not substantially in dispute. The breach alleged against the appellant occurred during an arranged meeting between the appellant and his two young children. At the time the two children were living with their mother Raelene Dianne Griffin, who was the aggrieved spouse under the relevant Domestic Violence Order (the spouse). There was no formal custody order regulating access and custody of the two children.
Notwithstanding that, the solicitors acting for the appellant and the spouse had agreed the appellant should be allowed supervised access to the two young children at the Botanical Gardens at Rockhampton on the afternoon of 3 February 1996. The appellant arrived with his mother (Mrs Baker) at the arranged time. The spouse, in the company of her father Clive Leon Griffin (Mr Griffin) and a friend Tracey Wilson, arrived at about the same time with the two children Jaime aged three and a half years and Kiana aged two years. Both groups sat at different tables near a kiosk.
After three or four minutes Mrs Baker walked over to the children calling out to Jaime. The spouse then suddenly seized Jaime. Mr Lynn SM was uncertain on the evidence as to the precise point in the sequence of events that the spouse seized the child.
The reason the spouse suddenly seized the child is of some interest. As I have said, there was at that time no Court order in place regulating access and custody. Some weeks earlier the spouse had unilaterally removed Jaime from the appellant's care during—an access visit arranged for her. Her idea on the occasion we are concerned with was that the appellant should have access but access only at the spouse's table and in the presence of the spouse. The appellant thought he would be entitled to take the children anywhere in the gardens during the agreed period of access.
Mr Lynn SM accepted the act of seizing the child triggered a quick response by the appellant. He ran or jogged over to the other group, he verbally abused Mr Griffin (on one version he called out loudly, “You fucking old cunt”), and then attempted to physically pull the child from the spouse. The child was upset and was hitting the appellant. The other child was crying. Throughout the incident and afterwards, Mr Griffin and the appellant were swearing at each other. The spouse, her friend and the two children took refuge in the kiosk. The police were then called. Mr Griffin and the appellant confronted each other outside the kiosk. At one stage Mr Griffin pushed the appellant.
The main factual dispute between the Prosecution and the appellant in the Magistrates Court was as to whether the appellant had pushed the spouse when attempting to pull the child from her. Mr Lynn SM was unsure as to exactly what occurred, although ultimately he said, “I am sure there was” - to quote from the extemporey reasons - “a bit of push and shove there, while the child was being grabbed hold of”.
Putting the allegations concerning the push aside, Mr Lynn SM was satisfied the appellant's conduct as a whole amounted to an act of domestic violence in breach of the order. Mr Lynn SM's reasoning is demonstrated in the following passages:
“The Prosecution acknowledges that the Prosecution's case in this instance is to prove its case beyond a reasonable doubt...The Prosecution submit that even if the push was not proved, the conduct of the defendant on the occasion amounts to intimidation and harassment and even though initially there may have been some degree of provocation to the defendant when the child was not allowed to go to his mother. He is not able to take any advantage of defence of provocation under the domestic violence legislation, because there is simply no provision for that, although it may be that he might have that defence to a charge of assault against the Code... unfortunately, the incident with the child getting grabbed back was sufficient to trigger things off by the defendant, shouting obscenities and then running over...It indeed appears to me to be the very. sorts of incidents that the Domestic Violence Act is designed to try and prevent...and as I said he became angry and shouting at the aggrieved spouse's father and ran over and attempted to tug the child from the mother and she, not surprisingly, resisted. The Prosecution submitted that those facts alone amount to a breach of the order and I am satisfied that that is so.”
Mr Crow argued that before there could be intimidation of a spouse, the spouse had to be subjectively intimidated. Mr McGrath, for the respondent, submitted the test under the legislation was an objective one. The relevant section in the legislation is section 11(1), which provides as follows:
“‘Domestic violence’ is any of the following acts that a person has committed against his or her spouse - (c) intimidation or harassment of the spouse.”
There are a number of examples set out in the foot note to the section.
Mr Crow's submission is ultimately based on the dictionary meanings of “intimidate” and “harass”. In the Macquarie Dictionary, 2nd Edition, the following definitions appear:
“Intimidate 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter.
Harass 1. to trouble by repeated attacks, incursions, et cetera, as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with troubles, cares, et cetera.”
From those definitions it can be seen the verb “intimidate” implies the target has become intimidated. It is doubtful, however, whether the verb “harass” implies a particular state of mind in the target person.
Mr Crow then pointed to the only direct evidence of the spouse's state of mind at the relevant time. Now, this is contained in a passage appearing at page 9 in the transcript:
“When that act occurred, when you were pushed, how did that make you feel?-- Well, I wasn't, you know, in - very happy about it. I mean, nursing a child and also being pregnant and being shoved backwards was, you know, it's not a very nice thing to do.”
It may be inferred from the general narrative of events that the spouse was in an agitated state of mind. She did, after all, take refuge from the appellant in the kiosk. It may be possible to infer she was to that extent made timid or inspired with fear or overawed or cowed. Whether or not such inferences may be drawn from the evidence, I do not think that it is necessary for the Prosecution to prove the target of the intimidation was, in fact, intimidated.
Domestic violence is defined as:
“Any of the following acts...committed against...the spouse.”
One of the following acts then set out in the definition is:
“...intimidation or harassment of the spouse.”
The section in its terms penalises acts committed against a spouse. Acts of intimidation I would understand to refer to acts calculated to intimidate, [the word “calculated” being used in its objective sense of “likely”: see R v. Landsbury (1988) 2 Queensland Reports 180.]
If this view is correct, it would be unnecessary to additionally prove the spouse was, in fact, intimidated by the act or acts of intimidation. Some support may be derived for this view from the examples provided in the section.
“Examples-
- 1.Following the spouse when the spouse is out in public either by car or on foot.
- 2.Positioning oneself outside the spouse's residence or place of work.”
This interpretation allows a more consistent standard to be applied to conduct said to amount to acts of domestic violence. On balance I do not consider it is necessary for the Prosecution to separately prove the spouse was, in fact, intimidated.
Looking at the primary findings of fact reached by Mr Lynn SM, I am satisfied the conclusion the conduct of the appellant amounted to domestic violence was not only open on the evidence but was the correct conclusion to draw from the evidence.
It is evident on reading Mr Lynn SM's remarks that he felt some sympathy for the appellant and that he recognised there was an element of provocation on the part of the spouse.
As to Mr Crow's argument concerning proof of the element of knowledge, Mr Lynn SM said simply he was satisfied there was a breach of the order. He was not asked specifically to turn his mind to the element of knowledge in the offence, so it is not surprising that he did not specifically discuss this particular element of the offence. On the evidence the appellant clearly had knowledge of the existence of and content of the Domestic Violence Order, as well as knowledge of all of the relevant facts constituting the breach. In these circumstances it was open to the learned Stipendiary Magistrate to be satisfied of this element of the offence.
There was no appeal from the sentence imposed.
In all of the circumstances I am not satisfied the learned Stipendiary Magistrate has been demonstrated to have erred in his assessment of the evidence or that he committed any other error in his consideration of the charge before him. In all of the circumstances therefore the appeal must be dismissed.