D v W [2010] QDC 270

[2010] QDC 270 DISTRICT COURT APPELLATE JURISDICTION JUDGE SAMIOS No 648 of 2009 D Appellant and W Respondent SOUTHPORT DATE 06/05/2010 -- 1 of 6 -- 2 HIS HONOUR: On the 30th October 2009 in the Magistrates Court here at Southport, the learned Magistrate found the appellant guilty of a charge of a breach of a protection order made under the Domestic Violence Family Protection Act 1989. The sentence imposed by the learned Magistrate was no conviction recorded and 12 months' good behaviour bond, under section 19, paragraph 1, sub-paragraph (b) of the Penalties and Sentences Act 1992, with a recognisance of $500. A protection order had been made under the Act on 10 September 2009, with standard conditions. It required the appellant to be of good behaviour towards his son. The grounds of appeal are that the learned Magistrate made findings contrary to the evidence and the learned Magistrate made findings contrary to the law. The appellant's son gave evidence on the hearing of the breach proceedings, as did two police officers. The appellant did not give evidence or call evidence. However, the circumstances before the Court involved an incident that occurred at the Nerang Caravan Park on 18th November 2008, where both the appellant and his son were living. The evidence of the son was that he was watching TV in the lounge, in the annex of the caravan. His father had gone to sleep. He accepted that he must have turned it up a bit loud, because he thinks there was a slight sprinkling of rain on the tin roof, which made it difficult to hear very well. He said the appellant came out and asked him to turn it down and they ended up having a verbal argument over the loudness of the TV, -- 2 of 6 -- 3 because his father was trying to sleep. It started up civil but escalated, because the son did not want to turn down the TV. He explained what he meant by escalate, by saying it was because his father grabbed the remote control off the table and went to turn it down and jumped up and snatched it off him and pushed him away and turned it back up. The son said the appellant got up him because he was having no respect and he got back up him, saying it was his place. He was asked to describe what happened and the son said in evidence, "I pushed him and I took the remote back and then we sort of grabbed each other by the shoulders.". He was unsure who grabbed who first, but he said, "Because I lunged at Dad for the, like I said, I grabbed the remote back and pushed him and I think he went to grab the remote back and then we started wrestling.". There was no dispute both men ended up on the ground. There was no dispute both were heavily intoxicate. There was no dispute that the son bit the father's ear during the struggle. Then the conflict ceased. The son readily admitted, when he was cross-examined, that he was the one who started the trouble. That was because he said he had not turned down the TV. The learned Magistrate found that the circumstances were a breach of the domestic violence order and that the appellant -- 3 of 6 -- 4 had not been of good behaviour. The argument on this appeal is that when the facts are examined, the actions of the appellant could not amount to breach of good behaviour, or at least the learned Magistrate could not have been satisfied, beyond reasonable doubt, that the appellant had been not of good behaviour. The decision of his Honour Judge McGill in Dowse v. Gorange 2004 Queensland District Court 477 has been referred to by the learned Magistrate and on this appeal. Authorities are referred to in the judgment where the difficulty of determining what is or is not a good behaviour is discussed. Importantly, Legoe Justice, in the case of Higgins and Goldfinch 1981, 26 South Australia State Reports 364 and 366 said, "The standard required of a promise or to adhere to a period of good behaviour can only be assessed by the Courts by using the yardstick of the ordinary and average citizen. Such a standard is not necessarily what might in other Parliaments be described as the reasonable citizen. The person who breaches his promise to be of good behaviour is one whose conduct is such that by deliberate and conscious action, he has transgressed into the area of anti-community behaviour." While that is relevant to any case, the difficulty in this case before me is to draw the line between what is or is not a breach of good behaviour in the circumstances. Clearly, the son acknowledged, when he gave evidence, that he lunged at his father. But before that, there had been a grabbing and snatching of the remote, with the father's demand that the TV -- 4 of 6 -- 5 be turned down. It does appear that it was open to the learned Magistrate to find that the demand to turn the TV down and the snatching of the remote control amounted to a breach of good behaviour. What followed was a fight between the two men, which may not have amounted to a breach of good behaviour in the sense that everyone is entitled to defend themselves. But the case was not necessarily placed before the Magistrate on that basis. There was a broad basis and that included what had occurred up to the struggling between the two men. That is, the appellant must be expected to put up with discomfort in living arrangements and this would require him to be of good behaviour in those living arrangements and adopt what is happening in those living arrangements. To get involved with the snatching of the remote control, in my opinion, can amount, as the learned Magistrate found, to a breach of good behaviour. What followed, correctly, was identified by the learned Magistrate, to go to penalty. Clearly, the son acted beyond what was reasonable, but as the learned Magistrate pointed out, alcohol was involved, as it often is, in these situations. Therefore, in the circumstances, I conclude the learned Magistrate did not make findings contrary to the evidence, nor contrary to the law. The findings he made were open to be made on the evidence and even though there was a fight situation that developed, the case was put before the learned -- 5 of 6 -- 6 Magistrate on a broad basis which could include the demand for the volume to be turned down and the snatching of the remote control from each other, amounting to a breach of good behaviour. I therefore dismiss the appeal. Is there anything further on the appeal then? MR McNAB: No, your Honour. MR MITCHELL: No, your Honour. HIS HONOUR: Yes. That'll be the order. The appeal is dismissed. MR McNAB: Thank you, your Honour. ----- -- 6 of 6 --