Wells v Bramley
[1997] QDC 99
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Wells v Bramley[1997] QDC 99
- Add to List
Wells v Bramley[1997] QDC 99
Wells v Bramley[1997] QDC 99
DISTRICT COURT | Appeal No 6 of 1997 |
APPELLATE JURISDICTION
JUDGE NASE
GRAEME GEOFFREY WELLS | Appellant |
and
ANNE-LOUISE BRAMLEY | Respondent |
GLADSTONE
DATE 02/05/97
JUDGMENT
HIS HONOUR: This is an appeal by Graeme Geoffrey Wells (the appellant) from a domestic violence order made on 11 March 1997 by Mr Risson, Acting Stipendiary Magistrate.
The order effectively restrains the appellant from committing any act of domestic violence towards Mavis Ann Hiles (Hiles) for a period of 12 months. The domestic violence order was in the mandatory form under the Domestic Violence Act (the Act). The right to appeal from a domestic violence order is conferred by section 65 of the Act. Section 65 is in the following terms:
“Unless a Judge of District Courts orders otherwise, an appeal shall be by way of re-hearing on the record, and shall be in accordance with rules of Court made in exercise of the power conferred by the District Courts Act 1967 or, in so far as those rules cannot be applied to such appeals, in accordance with directions given by a Judge of District Courts.”
An appeal by way of a re-hearing is to be distinguished from an appeal stricto sensu. Upon an appeal stricto sensu the question considered is whether the judgment under appeal was right or wrong when given. An appeal stricto sensu is necessarily on the materials before the original Court.
An appeal by way of re-hearing is, by way of contrast, essentially a second trial of the same issue. On an appeal by way of re-hearing the rights of the parties is determined by reference to the circumstances as they then exist and by reference to the law as it then exists. In this case the section speaks of a re-hearing on the record. This is an unusual use of the term “record”. I assume the expression in this context merely refers to the evidence and other materials before the acting Stipendiary Magistrate.
I do not think “the record” includes the reasons for decision of the Acting Stipendiary Magistrate or part of the Acting Stipendiary Magistrate's reasons for decision (for example, the Acting Stipendiary Magistrate's findings on credibility). Any other conclusion would not be consistent with the notion of a second hearing or re-hearing of the question.
Whether the expression “on the record” limits the materials before the appellate Court to the material before the original Court is unnecessary to consider in this case as neither party wish to supplement the record by any additional material. Normally, of course, on a re-hearing, apart from a re-hearing de novo, the appellate Court may consider the questions raised in the hearing upon the materials before the original Courts supplemented by any additional evidence called by the parties. Mr Crowe, on behalf of the appellant, challenged the lawfulness of the proceedings before the Acting Stipendiary Magistrate.
The application for the domestic violence order in this case was made by a police officer. Section 67 of the Act sets out the obligations of a police officer contemplating an application for a domestic violence order:”
“If a police officer reasonably suspects a person is an aggrieved spouse, it is the duty of the officer to investigate or cause to be investigated the complaint, report, or circumstance on which the officer's reasonable suspicion is based, until the officer is satisfied the suspicion is unfounded.”
In this case I am satisfied the police officer conducted the necessary investigation of the initial incident and that she subsequently formed the necessary belief spoken of in section 67(2) of the Act which in turn provided jurisdiction for the application.
On the police officer's evidence she was called to attend an incident at approximately 9.05 p.m. on 9 January 1997 at an address at Watt Street, Gladstone. On arriving at the scene the police officer spoke to Hiles who appeared to her to be upset and shaking. Hiles subsequently told her that:
“She stated that Graeme Wells had come over to visit her that evening and at about 8.30 she'd asked him to drive her down to the pizza shop to get a pizza for her children. And whilst they were in the car, after they'd pulled out of the driveway an argument had started. The car stopped just down in Watt Street and Graeme Wells had tried to push her out of the car. And she had grabbed hold of the car door to stop herself falling out of the car. He then drove her back to the driveway of the flats. She said to him that he didn't know a good woman, to which he grabbed hold of her dress and ripped it, then threw her purse and keys out of the car and then pushed her out of the door. She then stated he left.”
The police officer said that when she arrived Hiles was still looking for her purse and keys at the scene. The police officer then conducted an investigation of the incident during which she took details of past acts of domestic violence between the parties. She gave evidence that Hiles said to her these things:
“Okay, Mavis said to me whilst she and Graeme were living at 8 Cook Street, about three months prior to their - the end of their relationship, an argument had again started and Graeme had head butted her in the bathroom of that house. She stated because of that she blacked out and when she came to, Graeme was holding her over the - the basin in the bathroom.”
And later she said:
“Another incident Mavis recalled was another night at 8 Cook Street, Graeme had physically kicked her off the bed and thrown some pillows out of the bedroom, preventing Mavis from sleeping in the bed. Also, Mavis stated to me that three days prior to 9 January she - Graeme had again been visiting her at the unit at Watt Street. She'd gone next door to the neighbouring flat to make a phone call as she didn't have a phone in her flat and Graeme became annoyed that she was making a phone call. When she returned to the flat he pulled her towards him by the hair, used a backhand to slap her in the face and then head butted her again on the bridge of the nose. That injury - after she told me this she pointed to an injury on her nose, which I'd seen. There was a cut and bruising across the bridge of her - the top of her nose.”
The police officer said later again later in her evidence: “Yes, she also stated to me that on one occasion Graeme had tied her to the bed against her wishes.” The police officer also said that, either during or at the completion of the interview, Hiles asked the police for help in dealing with the appellant. The police, after they returned to the police station and were in the process of typing out the necessary application for a domestic violence order, received a phone call from Hiles. That phone call was dealt with by the police officer in her evidence as follows:
“...she said to me she wanted to withdraw the application, I asked her why and she said, oh, because she didn't want to proceed with it. I explained that it was a police application, the police were taking it out on her behalf and they are unable to be withdrawn. Then I asked her whether Graeme Wells was standing beside her. She said, ‘Yes.’ I said, ‘Is he threatening you to withdraw the application?’, and she said, ‘Yes.” And I said - I again explained that they can't be withdrawn and she'll have to come to Court in the morning.”
Later in her evidence the police officer related speaking to Hiles again on 10 March. Her evidence deals with that conversation as follows:
“I went around to the flat on 10 March. I went around to ask if Mavis would provide me with an affidavit relating to this incident. She refused. She said she didn't want to go ahead with it and she wanted it all you know to be withdrawn and so forth. She also stated that she - when I questioned her about ringing me up the previous night she said that, ‘Yes, I rang you up, but the reason I rang up was because Graeme was standing there.’, and that she was afraid if anything happened to Graeme she would be blamed.”
The police officer had recorded this latter conversation in a micro-cassette which, together with a transcript, was tendered as an exhibit before the Acting Stipendiary Magistrate.
The police officer in the course of her evidence explained that the belief she formed under the Act was based not only on Hiles' statements but also upon her observations of the injuries visible on Hiles' face on 9 January 1997. As may be clear, so far Hiles declined to cooperate with the police and, as I have said, even before proceedings had formally commenced against the appellant had asked the police not to prosecute him under the Act.
When she did give evidence at the hearing she generally denied the truth of her statements to the police. She said that when she spoke to the police on 9 January she was affected by alcohol and by feelings of spite towards the appellant. She said she presently has no fear of the appellant and no fear of being assaulted by him in the future. She said that generally speaking his physical actions towards her were responses to her own physical aggression towards him. She said the incident on 9 January was entirely her fault. I agree that if Hiles' evidence is correct there would be no proper basis for a domestic violence order.
Mr Crowe in his submissions before me argued there was no satisfactory evidence on which a domestic violence order could be made. Under the Act, before a domestic violence order may be made the Court must be satisfied both that a past act of domestic violence has been committed against the aggrieved spouse and also that a future act of domestic violence is likely.
The affidavit in support of the application discloses both a past history of domestic violence and supplies a basis on which a domestic violence order could lawfully be made under the Act.
Hiles' denial of the truth of the incidents on which the application is based is difficult to assess. The Acting Stipendiary Magistrate who determined the application below did have the advantage of observing Hiles and, indeed, the police officer in the witness-box.
As I have mentioned, the applicant police officer tendered a transcript and tape-recording of a conversation between herself and Hiles. When Hiles gave evidence she agreed she had told the police officer in the telephone conversation that the appellant was standing beside her and that she was under threat from the appellant to withdraw any application under the Act.
In evidence when asked about that conversation she could not offer any explanation as to why she would make those statements if they were not true. I cannot think of any explanation for those statements if they were not true. The purpose of her phone call was to ask the police not to proceed against the appellant under the Act.
On the other hand, if she was under the influence of the appellant to the point where on the very evening of the incident he was able to persuade or coerce her to attempt to withdraw the complaint, then her denials or explanations of the incidents of past domestic violence must be looked at very carefully.
The observations of the police officer are, I think, important. The police officer did not think Hiles was affected by liquor on 9 January when she arrived at the scene and when she spent some time speaking to her about that incident and about the past incidents. She also, at that time, observed various marks on Hiles' body that were consistent with the account of past domestic violence given to her by Hiles.
On balance, I am satisfied of the past acts of domestic violence disclosed by the material.
I note the Acting Stipendiary Magistrate arrived at the same on collusion with the advantage of having heard and observed the witnesses. I should add that I can find no error in the Acting Stipendiary Magistrate's approach to the resolution of the primary facts of the case.
The question of whether on the evidence the Court can be satisfied a future act of domestic violence is likely to occur is, again, a difficult judgment to make. In fact, the Court cannot know whether in this case the appellant will commit an act of domestic violence in the future.
If I may steal some observations by McPherson JA in another case:
“In this context danger plainly involves an element of futurity or a forecast or prediction on that subject. To say that there is a danger of something happening necessarily involves an assessment of the risk that it may happen in the future. All forecasts or predictions about the future or events that are likely to occur in it are necessarily, to some extent, speculative.”
Doing the best I can, and being guided by the past, I am satisfied that a future act of domestic violence is likely to occur.
In these circumstances, the conditions in the legislation being satisfied, a Court has a discretion to make a domestic violence order.
Mr Crow in his submissions correctly pointed out that the decision to make a domestic violence order is a discretionary judgment. He submitted in the following terms:
“It is submitted that a Court should not grant a domestic violence order where the aggrieved spouse does not wish for a domestic violence order to be granted other than in a case where there is clear and convincing proof that there are serious incidents of domestic violence which have resulted in a real injury or damage to the alleged aggrieved spouse.”
I cannot agree with the submission either viewed as a statement of practice or as a statement of principle. It is not justified by the tests in the legislation, itself, nor does it sit easily with the policy of the legislation.
Domestic violence legislation is a response to the general acceptance within the community that family violence is one of the most wide spread and under reported crimes in Australia.
The purpose of the legislation is preventative. It represents a deliberate policy to intervene in unequal relationships between spouses where there has been a past history of violence and where there is seen to be a potential for future violence.
The fact the police may apply for an order irrespective of the wishes of the aggrieved spouse is recognition of the fact that in an unequal relationship between spouses a spouse who has been subjected to past domestic violence may not wish to apply for a domestic violence order under the legislation.
In all of the circumstances I consider that in this case a domestic violence order is warranted. I, therefore, confirm the orders made by the Acting Stipendiary Magistrate on 11 March 1997 and dismiss the appeal.