EBH v DH [2001] QDC 16

DISTRICT COURT OF QUEENSLAND CITATION: EBH v. DH [2001] QDC 016 PARTIES: EBH Appellant And DH Respondent FILE NO/S: D 4854 of 1999 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: 24 January 2001 DELIVERED AT: Brisbane HEARING DATE: 15 December 2000 JUDGE: Judge Samios ORDER: Appeal dismissed CATCHWORDS: Words and Phrases - wilful injury – domestic violence; Domestic Violence (Family Protection) Act 1989 s.9, s.11(1), s.14(1), s.20(1), s.84(2) and (3); Shaw v. The Queen (1952) 85 CLR 365; Briginshaw v, Briginshaw (1938) 60 CLR 336; Regina v. Chan–Fook (1994) 1 WLR689; The Queen v. Scatchard (1987) 27 A Crim R 136); Devries v. Australian National Railways Commission (1993) 177 CLR 472; Re: Lyndon (1987) 31 A Crim R 111 COUNSEL: Mr C Reid for the appellant SOLICITORS: Ron Sherman Solicitor for the appellant [1] This is an appeal against the decision of the learned Magistrate at Wynnum (the Magistrate) who on 16 November 1999 pursuant to the provisions of the Domestic Violence (Family Protection) Act 1989 (the Act) ordered that the appellant be of good behaviour for a period of two years subject to four standard conditions. -- 1 of 29 -- 2 [2] Section 20(1) of the Act provides:- “A court may make an order against a respondent spouse if the court is satisfied that – (a) the respondent spouse has committed an act of domestic violence against the aggrieved spouse; and (b) the respondent spouse – (i) is likely to commit an act of domestic violence again …” Domestic violence is defined in s.11 of the Act as follows:- “(1) “Domestic Violence” is any of the following acts that a person had committed against his or her spouse – (a) wilful injury; (b) wilful damage to the spouse’s property; (c) intimidation or harassment of the spouse; (d) indecent behaviour to the spouse without consent; (e) a threat to commit an act mentioned in paragraphs (a) to (d).” Sub-sections (2) and (3) of s.84 of the act provide evidentiary provisions relevant to this appeal. Those provisions are:- “(2) In any proceeding with the view to – (a) making a protection order or a temporary protection order … the court or Magistrate may inform itself, himself or herself in such manner as it or the Magistrate thinks fit and is not bound by the rules or practice as to evidence. (3) The court or Magistrate need not have the personal evidence of the aggrieved spouse before making a domestic violence order.” Further, s.14(1) of the Act provides that an application for a protection order may be made only by – -- 2 of 29 -- 3 (a) an aggrieved spouse; or (b) an authorised person mentioned in sub-section (2); or (c) a police officer mentioned in sub-section (3).” Finally, s.9 of the Act provides:- “If a court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.” [3] Before making the order he did the Magistrate was satisfied that the appellant had committed an act of domestic violence against his wife and was likely to commit an act of domestic violence again. The Magistrate expressed his findings as follows:- “I am then satisfied on the balance of probabilities that domestic violence of a serious kind has occurred that in so far as it was perpetrated upon Mrs DH it did involve choking sufficient to cause an 13 year old boy to leap on his father’s back to try and protect his mother.” “In fact, I am more than satisfied that as at today, on the evidence before me and on the evidence of what has gone before and what has been undertaken up to the date of this court and that there is a likelihood of further domestic violence.” [4] The grounds upon which the appellant submits the order of the Magistrate should be set aside are:- 1. The court erred in finding that the respondent spouse had committed an act of domestic violence against the aggrieved spouse, in particular that it involved choking 2. The court erred in finding the respondent spouse was likely to commit an act of domestic violence again, in particular, that physical violence occurred a couple of times a year. 3. The court erred in allowing a confidential report to be admitted into evidence and using that report against the interests of the respondent spouse. 4. The court erred in accepting and giving greater weight to matters raised by means other than sworn evidence as opposed to preferring sworn evidence. 5. The court erred in allowing the prosecution to re-open the case. -- 3 of 29 -- 4 [5] It was Detective Sergeant Kerlin, a member of the Queensland Police, who brought the application for the order. [6] His evidence was that on 30 June 1999 he received written notification from Nicole Karger of the Redlands Department of Family Youth Community Care. This notification related to alleged assaults committed upon a MH 17 years, PH 6 years and KH 13 years. The notification stated that MH had received an injury to his ear as a result of the assault and a request was made by Family Services to assist them to check on the wellbeing of the children. Later that afternoon with others he attended at the EBH’s home at …, Capalaba. There was no person at home. On Thursday 1 July 1999 he again attended at that address with plain clothes Constable Bennett and Ms Karger. The appellant answered the door and was advised by Detective Kerlin that he needed to speak with the appellant’s children to check on their welfare. The group was invited into the house and Detective Kerlin arranged for KH to speak with them in the presence of the appellant’s wife . His evidence was that KH was 13 years of age and in the presence of the appellant’s wife he stated he had witnessed an incident on 28 June 1999 between the appellant and his wife. He said KH stated that KH witnessed the appellant slap his wife and choke her with his hands. Then KH stated that he jumped on the appellant’s back to stop him assaulting his wife. Detective Kerlin stated that when KH told the group this account of the incident he became upset and began to cry. Detective Kerlin also stated that he spoke with the appellant’s wife although this conversation was not tape-recorded. She stated to him that she had been married to the appellant for 23 years and had experienced various degrees of verbal and physical abuse over that time. Whilst the appellant was a member of the Victorian Police Force there had been a domestic dispute which caused the Police to become involved due to threats -- 4 of 29 -- 5 of injury that were made to the appellant’s wife. Further, that there had been a domestic matter which had been investigated whilst the appellant had been in training at the Queensland Police and Emergency Services Academy. She stated that the appellant goes through “certain moods” a couple of times each year which leads to physical violence against her. Further, in Detective Kerlin’s statement there appears the following statement: “In respect to disclosures that her son KH had made about an incident on 28 June 1999, the aggrieved agreed with his version of events. She stated that her daughter MH has behavioural problems and has been prescribed medication for depression. The argument on 28 June 1999 resulted from MH refusing to take her medication and having her music too loud, this upset the respondent. The aggrieved stated that the assault was caused by a phone call from her daughter MH from the Redlands Hospital. The aggrieved stated that she was to pick her daughter up from the Hospital when the respondent approached her. She stated that when she warned the respondent not to touch her or she would call the Police. The aggrieved stated that this statement provoked the respondent and he then hit her in the head and placed his hands around her throat. She did not give any further details except to say that she later left to collect her daughter MH.” [7] Detective Kerlin stated in evidence before the Magistrate that the appellant’s wife had telephoned him about a week and a half ago (the hearing was taking place on 21 September 1999) to the effect of having the application brought by Detective Kerlin withdrawn. There is no dispute in these proceedings that the appellant’s wife did not make a complaint of domestic violence, and that she did not want the application to proceed. [8] Detective Kerlin accepted when cross-examined that when the appellant's wife referred to being slapped, it was with an open hand. Further, he did not ask KH to describe what he meant by the work ‘choke’. Detective Kerlin did not accept that -- 5 of 29 -- 6 the appellant may have had his hands on his wife but was not choking her. Detective Kerlin would not accept that was what KH said to him. [9] During cross-examination of Detective Kerlin it appeared that although he based his application on what he described as the assault that happened on 28 June, he nevertheless had information from Ms Karger in the form of a three-page facsimile dated 30 June 1999. He said it was because of that facsimile he attended at the premises and carried out the enquiries referred to in his statement. The Magistrate allowed Detective Kerlin to give further evidence in chief and admitted this document into evidence as Exhibit 2. This document recorded MH alleging the appellant had suddenly grabbed her left arm, and pulled her off the bed onto the floor. That he then squeezed his hands around her throat which hurt at the time and had remained sore. No marks or bruising were observed by the notifier on MH’s arm or neck. Further, that MH indicated to the appellant she was intending to report the abuse. The appellant then indicated to her that he would make it worth it and hit her three times on the left side of her head above the ear. MH experienced pain. MH phoned the Police who arranged for an ambulance to take her to the Redlands Hospital for medical attention. She was then examined by a doctor and then discharged. She was suffering a headache. She referred to another incident that had occurred two months earlier. Regarding PH it is recorded in this document that on the Sunday the appellant became angry with PH and squeezed his hands around his neck. The notifier was unable to observe whether PH sustained any marks or bruising at the time. PH is recorded as being afraid of the appellant. Then with respect to KH it is recorded in this document that on that Sunday KH observed that incident in relation to PH. PH indicated to the appellant that they were only playing. The appellant then hit KH once forcefully against his left ear causing KH -- 6 of 29 -- 7 to almost lose his balance. KH experienced loss of hearing for several hours and indicated his ear felt full of water. KH also suffered pain all day. The notifier was unable to indicate whether KH was still experiencing pain. The notifier did not observe any marks/bruising to KH. Further information was recorded that there was a history of domestic violence towards the appellant’s wife. [10] Detective Kerlin agreed in cross-examination that there were no particular acts of domestic violence which he could point to which occurred at any time, apart from the incident on the night of 28 June. [11] Constable Bennett also gave evidence. In the early stages of her evidence in chief it appeared her evidence was of a general nature. It was not as specific as that given by Detective Kerlin. Constable Bennett referred in her evidence to an incident that related to some firearm when the appellant was stationed with the Police Force in Mildura and a later occasion when in Queensland he had joined the Police Academy there was a firearm removed from the ceiling of the house. As the evidence was general the Magistrate was duly critical regarding the lack of particularity (T25/50). [12] Then the appellant’s wife gave evidence. The second question asked of her was: “Now, are you the aggrieved spouse with regards to the application just before the Court?” Her answer was as follows: “No, I don’t see that I am the aggrieved spouse.” The next question was: “And your name is the aggrieved spouse in an application that is before the Court?” -- 7 of 29 -- 8 Her answer was: “They told me that I am, yes.” A little further down she was asked this question: “Now, do you remember 28 June this year?” Her answer was: “Of course.” Some further questions were asked and in answer to one of those questions the appellant’s wife said: “I guess I have to bring it to context with the problems that we have had with our daughter and that has been over a period of about four years. She had been a fairly – an ---“ This then brought a rebuke from the Magistrate to the Police Officer representing the applicant regarding controlling the witness. Answers to further questions appeared determined to ensure that any evidence she given by the appellant’s wife referred to difficulties the appellant was having with MH on the night in question and before that time too. The appellant’s wife was asked this question and gave this answer (T31/55- 60): “No, I don’t your worship. “Now, after your daughter left what happened then? – Nothing really. I mean, we were very stressed and concerned, but there was nothing else we could do. She had done it before and we waited for the phone call basically.” “Did your husband say anything to you? -- No.” However, contrary to “Nothing really” having happened after MH left, the appellant’s wife said in her evidence she had been on a seminar over the weekend and MH had come off her medication of her own accord and she should not have and that was addressed, and she said that was the reason that she would be upset. Further that the appellant was unaware at the time because it was a sequence of -- 8 of 29 -- 9 events over the weekend and it just had not been discussed with him. MH had been off her medication for about 48 hours. Other evidence given by the appellant’s wife was that one of her sons had come down the steps and he jumped on the appellant’s back because he felt that the appellant was hurting her. Later in her evidence the appellant’s wife described that she and her husband were extremely stressed and as her husband was on his way to bed she was in his way. Further, that he was stressed and she recalled him hitting her and putting his hand as he sometimes does with the children behind her neck to move her out of the way and that was the point in time when her son came in. When asked to describe how she was struck, she said it was with just an open hand. She denied ever mentioning anything about firearms and claimed the Police were getting incidents mixed up. She also denied there were any previous domestic violence issues. She did say though that in 1994 the Police were concerned about a firearm in the roof. However, the firearm was in the roof to keep it safe and away from the children. When asked about whether any domestic violence had occurred over the last 12 years, she said the Police may have asked her about that but that she could not recall what her response was to that question. Further, the appellant’s wife denied that since 1994 to June 2000 there had not been any other arguments which had been physical between her and the appellant. She denied that the appellant ever choked her. She did say though in cross-examination that when she was struck with the open hand by the appellant, it was hard and caused her “maybe slight pain”. On a scale of between 1 to 10 she would say that the degree of pain was about 2. She said she was never concerned about her own safety, nor that of the children. When asked about the evidence referred to in Exhibit 2 of certain moods a couple of times each year, which lead to physical violence against her, she did not give a responsive answer. However, she -- 9 of 29 -- 10 said there was not the frequency that statement suggested and that context had to be put to the statement because “we all have frustrations and moods whatever, it was nothing more than that, and twice a year – I’ve no idea where they have got that from.” She denied it would be correct to say there had been physical violence against her twice a year. She also said that she had not witnessed violence towards the children. Regarding KH being struck on the ear her answer implied that while the appellant may have flicked his hand against KH, that any connection with his ear was unfortunate. She then sought to say in cross-examination that the domestic violence order being sought would not assist and that professionally, financially and emotionally it would affect the family. She said that MH would make allegations which were not true. [13] When the appellant’s wife was excused the Police Officer representing the applicant announced that was the case for the applicant. However, the Magistrate expressed his opinion that the state of the evidence was unsatisfactory because matters had not been fully ventilated in terms of firearms, choking of children and the like (T47/40). The Magistrate expressed his concern in light of submissions from the appellant’s solicitor that he had been instructed that there was urgency in resolving the matter because the appellant was due to go to Timor as a soldier. The Magistrate expressed his view that the case had not been as well investigated as it might have been. A concern was expressed about references to a firearm. The Magistrate was concerned that it might be in the public interest that the Army might be advised regarding the state of the inferences that might be drawn from the evidence that had been given so far. The Magistrate was considering an interim order. After all parties gave more consideration to the circumstances as they presented themselves in the proceedings at that point in time, the Police Officer -- 10 of 29 -- 11 representing the applicant sought to address the Magistrate’s concerns regarding the evidence adduced so far and sought permission for the applicant to re-open his case which was granted. The matter was then adjourned for further hearing to 16 November 1999. As that date preceded the Timor departure, it was not necessary for the Magistrate to make any orders at that stage in relation to service of his order on the Army. [14] When the proceedings resumed, Mr Dowd, a Queensland Ambulance Service Officer, was called to give evidence. He stated he received a call from his control room on 28 June and arrived three minutes later at a telephone booth where he met MH. She said to him that she had been assaulted. Although she said she had been struck in the head, he did not observe any apparent injuries to the head. Further, there were no other signs of injury. However, MH was taken to the Redlands Hospital. [15] Mr Barnes, the medical superintendent at the Redlands Hospital, also gave evidence. He produced the records of MH’s admission to the hospital on the evening of 28 June. The records referred to an alleged assault after disobeying her father, and that she stated that she was hit by her father and had a lump on her head. No injury was detected apart from a question of a slight haematoma or a bump on the top of the head. The following was also recorded in the notes: “The patient states that she was hit by her father this evening. The patient states he has hit other family members. He hit (her) for not turning CD player down in home. Patient cannot remember exactly how he hit her, but has blood in mouth. No loss of consciousness.” [16] Ms Karger was also called. She confirmed that she attended with the two Police Officers at the house on 1 July where they spoke with KH. She recalled him saying -- 11 of 29 -- 12 that there had been a disagreement between his parents and that he witnessed his father physically attacking his mother at which point he jumped on his father’s back to stop what was happening. She also thought that KH had said that the appellant had hit him across the head around the ear area which caused him pain. She also recalled KH being very distressed at the time she was speaking to him. She also stated that the Department had received information from MH regarding physical abuse by the appellant towards herself and the two boys. It was as a result of that information that she attended the address to investigate that further. She also stated the Police became involved because of child protection concerns. The Police also became involved because the father of the family was a Police Officer. Ms Karger agreed when cross-examined that she would not recall the exact words used by KH when she mentioned the words “attacked mother”. She recalled that he said that he jumped on his father’s back and that his father had his hand or hands on his mother’s neck. [17] After Ms Karger was excused, the Police Officer representing the applicant told the Magistrate that he had a confidential report submitted to the officer in charge of the Police Academy and there was a witness who could produce that report. This document made mention of a firearm and what happened to the firearm subsequently. Objection was taken to the receipt of the report because when the interview with the appellant took place he was told that the interview would be confidential and that it would never be used in any proceeding and would not come up again and would not be further referred to although it would be placed on the file. It was on that basis that the appellant spoke with the Police Officer. If he had been told otherwise he would not have continued to speak with the officer at that time. It was submitted that it was arguable in these circumstances, the appellant -- 12 of 29 -- 13 had been induced to make admissions by the promise that the document would be kept confidential. However, the Magistrate determined that in all the circumstances of the case at that stage, he should receive the evidence as it could resolve the actual circumstances of the weapon being kept in the roof of the dwelling. The file was then tendered as an exhibit. This recorded information concerning the appellant and the results of interviews with the appellant and his wife in 1994. The report stated that incidents of domestic violence had been committed by the appellant on his wife over a number of years. That his wife was terrified of him and although she feared for her safety she would not complain, and that the appellant kept a firearm in the ceiling of his house. During the interview with the appellant he stated that since the birth of his first child 12 years ago, he had occasionally assaulted his wife. Regarding the firearm, although the appellant had a shot-gun it was registered in Victoria and that because of his children, he stored it in the ceiling of his house. He held a current Victorian Shooters Licence. The Police took possession of the shot-gun from the appellant’s house which was then at Alexandra Hills and associated equipment. They also copied the licences. The appellant had explained that he had intended to apply for a Queensland Shooters Licence as soon as he was sure he was to remain permanently in Queensland when inducted into the Police Force. He also needed to explain that he had some financial difficulties owing to the failure of a previous business and he had to be careful with his expenses and this was another consideration for waiting to convert the firearm licence to a Queensland licence. The appellant’s wife stated when interviewed she had been a victim of domestic violence both physical and verbal for the past twelve years. She and her husband were well aware of their problem and had sought counselling on a number of occasions to try and resolve it. They were at the time -- 13 of 29 -- 14 receiving professional counselling through their Church. She stated the last time her husband had physically hit her was in about April 1994. That incident involved an argument in relation to a dog. The appellant’s wife said that since that last assault, she had given her husband an ultimatum that if that type of incident occurred again, she would leave him. [18] That then was the case for the applicant. [19] The appellant gave evidence. Regarding what happened on 28 June, he said there were so many things that impacted on that date that occurred far before that and led up to it. In essence he said that MH, since becoming a high school student, or in her early teens, had become very difficult. He referred to behavioural management problems with MH and that in the early part of the year she was admitted to the Royal Brisbane Hospital psychiatric unit as a voluntary patient. There was an assessment done on her and she was prescribed certain medications. A written agreement was formalised between MH and the appellant and his wife as to what was expected of MH regarding her behaviour in the home. That followed from very serious assaults that MH had committed on the appellant’s wife. They could not have carving knives or sharp knives in the house because MH would take those and threaten the appellant’s wife with them so they had to remove those from the home. They could not have alcohol in the house because on one occasion MH took a bottle to school and consumed a significant part of it and got herself totally intoxicated. She then kicked holes in the walls and maliciously damaged property around the house. It was a concern as to how to protect the appellant’s wife and the boys from her. The consequence of the agreement was that if MH did not toe the line she would have to leave the house and would have to live elsewhere. He stated -- 14 of 29 -- 15 the relationship was working out quite well. The family had gone on holiday and had arrived back from holidays the weekend leading up to 28 June. During that particular weekend the appellant’s wife had a seminar that she was attending over the weekend so the appellant was looking after the two young boys and MH. Regarding 27 June and how KH ended up with a sore ear, he stated MH was doing some ironing and he heard her call out from the study for the boys to behave themselves. They were kicking a small football around. There was a chance of some of the property being damaged. He went and spoke to the boys about their behaviour, to cut it out and to behave themselves and not kick the ball around anymore. A little while later they were again kicking the football. He heard things being knocked over. MH raised her voice at the boys as well. He ordered the two boys to go to their rooms to separate them for a while and to settle the situation down. The appellant’s wife was away at the time. At this point MH was having no input at all. He stated the young fellow dug his heels in a little and was not going to go to his room. He told this boy to go off to his room and that it had been his practice so as not to hurt them in any way he just grabbed him by the shirt, lifted him up and put his hand on the back of his neck and just pushed him on his way to get him moving. He stated the youngest went off to his room, however, the older boy, KH, stood his ground and started back-chatting. He told this boy to go off to his room and he refused again. At that point they were standing about face-to-face to each other. He told this boy he expected him to go to his room and to move it. As this boy said he did not have to, the appellant gave him a clip on the back of the right side of his head with the back of the appellant’s fingers. He made a noise, but nothing dramatic and then went off to his room. He was not aware of any problem with KH about any injury and it was not until he thought the Monday that he had -- 15 of 29 -- 16 complained to his wife about his ear being sore. He could not work out why it was, because as far as he was concerned he had not even contacted his ear. Then regarding 28 June, while he was still on holidays, his wife and KH wanted to watch a video and the appellant was watching another program in another room. MH went past and went into her room and turned up the music very loud. The wall was physically shaking between her room and the room in which the appellant was at the time, notwithstanding there was sound-proofing in the wall. The appellant waited for her to turn it down, thinking she may have inadvertently put the music on too loud. The appellant thought MH would turn the music down but she did not. He went to MH’s bedroom and was invited in. He asked her if she was going to turn it down and she replied that she was not. The appellant said some indecent language was used by MH to him. He therefore turned it down himself. MH said she would turn it up again when he left the room anyway. With that he said that he would have to take the power lead out as well. The appellant’s evidence was that as he went to pull the power lead out MH jumped off the bed at him and her left leg was extended out towards him as she was springing off the bed and he just grabbed her leg and dropped her straight on the floor and just swept her down and grabbed her with his hand round the back of her neck. He said his hands were large enough and he could apply pressure on the side of her neck and that was just a pain compliance technique. He said he had used this police-wise and there are various adaptations of it. He said all he was thinking to do was to calm her down and told her to settle down and she did. There was more conversation including MH stating that she was going to leave the home and the appellant said that if she was not going to abide by the agreement between them, then she should go. MH asked him to let her go. The appellant said he had hold of her neck and she was quite -- 16 of 29 -- 17 submissive at that point. He thought she had calmed down enough and he did not feel threatened at that point. Just as he let go the anger rose in MH again and he thought MH was going to have a go at him again. The appellant said he wanted to get out of the door and that all he did with an open hand, and to keep her down on the floor while he basically made a retreat out the door, was to slap her. He described what he did as a slap as being across the top of the left side of her head. He said his intention was basically to disorientate MH so that he could leave. He did not believe the force in the blow was other than reasonable. He denied there was enough force to result in injury. He said he knew exactly where the blow went and it was nowhere near her mouth. Further, there was only one blow. He said that as he was leaving the room MH was intimating then that she was going to be reporting the matter to the Police. He said MH stood behind his wife in another room and said that the appellant had assaulted her. A little later he said the appellant’s wife came to him and told him that she had known that MH had not been taking her medication for 2 or 3 days. The appellant said he was upset about this because there was a breach of trust between himself and his wife, that she knew that the medication was supposed to be taken and the consequences of it as far as the agreement between all of them. Further, and more importantly, he said, it was just a behaviour aspect of it, and he felt there was a lack of trust there between MH and himself, but that he had gone like the lamb to the slaughter in trying to deal with MH when she had fired up that night. He said that he had no idea that she had not been taking her medication and he thought that he was going in there to reason with somebody who, up to that point in time, had been very reasonable, when suddenly he was confronted with what he described occurred in MH’s bedroom. The appellant said he and his wife had words about this and was more than annoyed -- 17 of 29 -- 18 that his wife had not kept him informed and from that point he did not want to discuss the matter any more. However, his wife came back several times and wanted to talk about the matter and he did not want to talk about it. Then there was a telephone call from somebody that the appellant’s wife knew down at the local hospital to say that MH had been conveyed there by ambulance for this assault. This took the appellant aback significantly that MH had been able to dramatise something like that. The appellant claimed MH did in the past exaggerate incidents. The appellant said his wife wanted to speak to him about picking up MH. However the appellant did not want to discuss it any more, other than as far as he was concerned MH had burnt the bridges behind her, and that she was going to leave and find somewhere else to live. The appellant’s wife was opposed to MH being removed from the house that night. However, the appellant because of the way things had happened had made up his mind, that for the protection of all of the family it was essential that MH leave that night. He did not want to discuss it any further. He had made his decision and that was that. However, his wife insisted on continuing the discussion. It was late at night and he was trying to get to bed at that point and that where their family room is there was a small passageway and his wife stood in the passageway blocking it. His wife wanted to discuss the matter further, whereas the appellant told her he did not want to discuss it anymore and that MH was going to leave that night and that was the end of it. However, his wife kept on talking about it and talking about it and in the end he gave his wife a clip over the side of her head to get her out of the way and that was the only reason he did that. He did not want to discuss the matter any more. He told the Magistrate that it was not with intent that he caused injury or harm to her. He said he kept on telling his wife “Will you get out of the way? Will you move? I’m going to bed. -- 18 of 29 -- 19 Move out of the way?” However, his wife did not move and kept up the discussion. The appellant said he struck his wife only once over the top of the head and straight away he grabbed her by the back of the neck, not shaking her, and moved her out of the way. He said he knew as soon as he did that, he should not have done that, but “I felt provoked into it and the fact that she wasn’t just listening, that the discussion wasn’t going anywhere and I wanted to leave that area, and she wouldn’t make way for me to go through. So I took her by the back of the neck and moved her out of the way and I just said to her, “Why didn’t you listen to me when I wanted you to move out of the way? Why didn’t you just do that?” The appellant went on to say that at the same time “Our young fellow” must have come out from his room having heard the discussion and more likely he would have been standing there and when his hand was on the back of his wife’s neck and having moved her out of the way, he straight away jumped on the appellant’s back and he just flipped KH off his shoulders. The appellant said that was all that happened between himself and KH. He could not remember whether it was the next day, but MH found alternative accommodation and has not been with the family since that time. The Magistrate thought to enquire from the appellant about the statement in the report about domestic violence over a long period of twelve years or more. The appellant said there had been no domestic violence in the house since the Police Service intervention. That would appear to have been in 1994. The next question from the solicitor appearing for the appellant was as follows: “Please just answer the questions and I’ll ask you if there is anything else you want to say?” The answer was “Ok.” The appellant went on to say there had only been one blow to the top of his wife’s head that night. It was with an open hand. Further, he denied -- 19 of 29 -- 20 any violence to KH whatsoever. He claimed all he did was to shrug KH off. With respect to the incident where he did clip KH over the top of the head, he agreed that it was the previous day and said it was not part of the same incident. He said he only hit MH once and that happened on that day described earlier in his evidence. The appellant also denied choking his wife. He denied the Police in Victoria had to become involved in any incidents. Although he had no independent recollection, what he understood was that his wife had gone and got some advice about domestic situations and that was all. He was never interviewed by the Police about any violence. He also denied Detective Kerlin’s evidence which Detective Kerlin gave that the appellant did not wish to speak to Detective Kerlin about any matter. The appellant then explained in his evidence his possession of a shot-gun while in Victoria and how he kept it in the roof for safekeeping. He had licences for the firearm. However, the firearm never featured in any incident between himself and his wife. His guess was the Police had a concern that he had a weapon whilst they were enquiring into their domestic situation. He ultimately sold that weapon. He agreed he said as recorded in the confidential report that he made a statement to the effect that since the birth of their first child twelve years ago he had occasionally assaulted his wife. That was in 1994. He denied there had been any act of violence to his wife since 1994 other than the slap on 28 June. He went on to explain the pressures upon him personally through work as a Police Officer. He also explained to the Magistrate the pressures that can arise in a family. He also mentioned counselling that he and his wife had undertaken. He also mentioned personal pressure arising because of the loss of a brother who took his own life and then he was forced through his work to handle a suicide investigation even though he did not want to do it. He agreed that at some stage before 1994 he had slapped his wife -- 20 of 29 -- 21 previously, although he did not know the dates that occurred. However, there had been no previous complaints. He also described to the Magistrate the trouble that had happened with MH becoming intoxicated at school and the events that followed that episode. He was then given an open-ended question by the solicitor appearing on his behalf if there was anything else he wanted to say to the court. With that he said: “I mean, we’re a family that’s – there is family dynamics. My daughter had been a big, you know, influence in that and how the dynamics have functioned perhaps quite destructively for her own best known reasons. It is very concerning to us that since she has left home, we’ve though, you know, if we were the catalyst in it, that would have changed, but it hasn’t. You know, where she is staying in these youth shelters, they’ve seen the same thing. They’ve had to get the Police around, handcuff her and take her away. You have on-going concerns for MH don’t you – Yeah.” [20] The appellant agreed during cross-examination that as soon as he struck his wife across the top of her head to shift her out of the way and turned her by the neck to shift her out of the way, he knew he had done the wrong thing. Later, in cross- examination he said that although there had been relational problems between himself and his wife, and although he has slapped his wife, it has not had an immediate repercussion on the children or any violence towards the children. He said the children had never been involved in domestic violence as such. [21] I have set out above the provisions of the Act relevant to how the Magistrate had to decide this application. Further, I have set out above the course the proceedings took before the Magistrate and the evidence before the Magistrate. [22] I will deal with ground 5 of the grounds of appeal as that was the first ground argued by the appellant in his outline of submissions. That is, that the Magistrate -- 21 of 29 -- 22 erred in allowing the prosecution to re-open the case. At the stage at which the applicant closed his case, the proceedings became concerned with whether the proceedings could be finalised that afternoon and whether if they could not, the Magistrate ought to make an interim order and ensure the order was notified to the Army. At that point in time, the appellant had not lost any opportunity to meet any further evidence that might be adduced in the future. In support of this ground of appeal, Shaw v. The Queen (1952) 85 CLR 365 was cited. Certainly in Shaw it was held that the occasion must be special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence. In that case, the prisoner had closed his case. The majority recognised that it was unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. In the present proceedings, when the question arose regarding the applicant re-opening his case, the appellant had not embarked upon a course of action that was irreversible. The appellant had the opportunity to meet any further evidence and did so. The appellant does not demonstrate any prejudice arose from the decision of the Magistrate to allow the appellant to re-open his case. Therefore, in my opinion the Magistrate did not err in exercising his discretion to allow the applicant to re-open his case. [23] The appellant also criticised in his outline of submissions the Magistrate because it was submitted he played the role of an inquisitor rather than as an arbiter between the parties. It is true the Magistrate accepted he prompted the applicant because of what he thought were a number of deficiencies in the evidence. The applicant took up on this prompting and decided to seek to re-open the case. In my opinion, the Magistrate was not bound to ignore what he thought were deficiencies in the -- 22 of 29 -- 23 investigation. Section 84(2) of the Act provides that the Magistrate may inform himself in such manner as he thinks fit and is not bound by the rules or practice as to evidence. The purpose of the Act is to provide for protection to a person against violence committed or threatened by his or her spouse, for protection of certain other persons and for prevention of behaviour disruptive to family life. With that purpose in mind, and the power invested in the Magistrate pursuant to s.84(2) to inform himself as he thinks fit, it is my opinion the Magistrate need not err in expressing his views about the state of the evidence as he did. In my opinion the Magistrate did not go beyond what was fair in the circumstances. It should also be noted that subsection (3) of s.84 provides that the Magistrate did not need to have the personal evidence of the aggrieved spouse before making the domestic violence order. Further, that an application may be brought by a police officer. In my opinion these are indications that the Act recognises the difficult area of domestic violence in a family context and that an obligation falls upon Police officers and Magistrates to investigate and inform themselves about matters relevant for the purposes of the Act. Therefore in my opinion no complaint can be made about how the Magistrate approached his task in these proceedings. [24] It is now convenient to discuss ground 4 of the appeal because this seems to be the next ground argued by the appellant in his outline of submissions. That ground is that the court erred in accepting and giving greater weight to matters raised by means other than sworn evidence as opposed to preferring sworn evidence. Although the submissions of the appellant recognise the power conferred upon the Magistrate pursuant to s.84 of the Act, it was submitted this does not allow the Magistrate to ignore rules of natural justice. Further, that while the Magistrate is at liberty to accept material from many sources, he should be careful in weighing -- 23 of 29 -- 24 sworn evidence against hearsay evidence. It was submitted the allegations brought against the appellant were particularly grave considering he was both a police officer and an active member of the Army Reserve. Further, that the Magistrate was aware of the serious consequences which would flow from a finding against the appellant. An example is suggested of the danger in such a wide-ranging enquiry. It was submitted this can be found in Officer Bennett’s evidence who spoke of ‘firearms’ being involved in the Victorian dispute. It was submitted this was denied by Mr and Mrs EBH and did not appear in Detective Kerlin’s statement of evidence. Further, that Officer Bennett made enquiries in Victoria and found nothing to substantiate such an allegation. Hence it was submitted that this seems to be clearly wrong on all the evidence and indicates the difficulties of relying on a police officer’s recollection of a conversation not recorded. Further, it was said that this is all the more so when that conversation is with a person who has not made a complaint and who was not being investigated and who was simply speaking to a police officer and colleague of her husband during what must have been an emotional time. Further, that no statement was taken from the appellant’s wife and any conflict between her sworn account and the police officer’s recollections should have been carefully approached before any adverse view was found. [25] In my opinion there is no substance to this complaint because the Magistrate did not make a finding that the appellant had a firearm for what I may describe as a sinister purpose. There was evidence about the firearm. However, at the end of the day it does not feature as a matter relied upon by the Magistrate in making any of the findings he made to support the making of the order. Further, the evidence of Detective Kerlin was not shown to be objectively unreliable or inaccurate. It was for the Magistrate to assess all the evidence before him including that which was -- 24 of 29 -- 25 hearsay evidence with the care that should be exercised before relying upon hearsay evidence and then come to a decision on the facts before him (see Re: Lyndon (1987) 31 A Crim R 111). [26] By the time the proceedings had concluded there was evidence from the appellant’s wife and from the appellant that the appellant had slapped the appellant’s wife with his open hand and that it had caused the appellant’s wife slight pain. That was consistent with what the witnesses said KH told them. The appellant and his wife conceded the appellant grabbed the appellant’s wife by the neck to move her out of the way. The appellant and his wife accepted KH jumped on the appellant. That was consistent with what Detective Kerlin said KH told him. [27] The Magistrate also had the advantage of observing the witnesses give their evidence and assess their demeanour. Even if demeanour is argued to be too fragile a base for assessing evidence, in my opinion, when one considers the appellant’s wife’s evidence, the Magistrate could conclude, she was reluctant to be frank and forthright and actively avoided giving direct answers to questions. The Magistrate could conclude the appellant was also seeking to minimise his actions towards other family members. One example of this is his evidence he gave KH a clip on the head and yet on his own account KH complained on the following Monday to his mother his ear was sore. Another example is the appellant showed he blamed MH for going off her medication, he blamed his wife for not telling him this had happened and he blamed his wife for wanting to discuss the matter and not getting out of his way. -- 25 of 29 -- 26 [28] It is true that in Briginshaw v, Briginshaw (1938) 60 CLR 336 it was established that notwithstanding that the standard of proof may not be the criminal standard of proof when a serious allegation is made or the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal (per Dixon J. page 362). [29] However, for the reasons referred to above in my opinion the Magistrate could properly prefer the evidence of other witnesses compared to the appellant and his wife. The Magistrate did not in my opinion fail to use his advantage nor acted on evidence which was inconsistent with facts incontrovertibly established by the evidence nor which was glaringly improbable (Devries v. Australian National Railways Commission (1993) 177 CLR 472, 479. In my opinion the Magistrate could properly in the circumstances act on the hearsay evidence and the finding that there was choking was justified. [30] Ground 3, is that the Magistrate erred in allowing the confidential report to be admitted into evidence and using that report against the interests of the appellant. In my opinion s.84(2) of the Act allowed the Magistrate to admit that report into evidence. Although it was claimed that the appellant was induced to make the admissions contained in that report by a promise of confidentiality, that does not in my view, protect the report against being admitted into evidence in these proceedings. While the report may have contained information adverse to the appellant, I do not consider that alone justifies a conclusion that it was unfair to the appellant to admit the report into evidence. It may well be that though he was -- 26 of 29 -- 27 promised confidentiality that was an error on the part of the person who promised that confidentiality and on the part of the appellant who accepted it without giving consideration to the entitlement of the Magistrate to be informed as the Act allows by reason of s.84(2). Even without the report, in my opinion, there was other evidence before the Magistrate upon which he could make the findings he made. Although the appellant advanced reasons for how he treated members of his family to force them to comply with his expectations, they were not, in my opinion, reasons that required the Magistrate to find the appellant was justified or authorised or excused in law for his acts towards his wife and to take his acts towards his wife outside the provisions of the Act. Although during the proceedings enquiry was not made into what was involved in previous assaults, the proper inference the Magistrate could draw, in my opinion, was that these assaults, when these assaults occurred, were not justified. With that history and the Magistrate’s findings about what happened on the 28th, there was ample evidence without the report for the Magistrate to make the order. [31] Then as to the remaining grounds numbered 1 and 2 the Act does not define ‘wilful injury’. Had the Legislature used an expression such as ‘actual bodily injury’ or ‘bodily harm’ that could have been an indication that more than a trivial or transient effect upon a spouse was required to bring a matter within the provisions of the Act. (see Regina v. Chan–Fook (1994) 1 WLR689; The Queen v. Scatchard (1987) 27 A Crim R 136). In my opinion as the Legislature has chosen to use the expression “wilful injury” and not those other well recognised terms, a transient effect of being struck is within the meaning of the term ‘wilful injury’ as used in the Act. The Criminal Code distinguishes between a common assault and an assault occasioning bodily harm. A common assault occurs when a person strikes, touches or moves or -- 27 of 29 -- 28 otherwise applies force directly or indirectly to the person of another without that person’s consent. If a common assault were not within the expression “wilful injury” then one spouse could commit numerous common assaults upon the other spouse and claim that as the effects were only transient the provisions of the Act do not apply. I do not consider that was the intention of the Legislature. Further it is no answer in my opinion to say that a common assault could be dealt with under the provisions of the Criminal Code. In my opinion the ordinary meaning of the words ‘wilful injury’ should be applied. Wilful is defined in The New Shorter Oxford English Dictionary as “of an action etc: done on purpose; deliberate, intentional. Injury is defined in The New Shorter Oxford English Dictionary as “wrongful action or treatment; violation or infringement of another’s rights; suffering wilfully inflicted; a wrongful act, a wrong inflicted or suffered”. It is also defined as “hurt or loss caused to or sustained by a person or thing; harm, detriment; damage, specially of the body; an instance of this”. It was submitted that the appellant’s wife having suffered “may be slight pain” was not an injury. In my opinion the slap to the appellant’s wife whereby she suffered pain and the choking each amounted to wilful injuries. [32] If the Magistrate had found the appellant had grabbed his wife behind her neck to force her out of his way, that too would be a wilful injury. That would be a common assault. That would be violence offered to his wife which it is the purpose of the Act to protect against. An interpretation to achieve the purpose of the Act is to be preferred (s.14A Acts Interpretation Act 1954). [33] In my opinion that the conversations with KH and the Appellant’s wife were not tape recorded and a written statement was not taken from the Appellant’s wife are -- 28 of 29 -- 29 not reasons that persuade me the Magistrate should not have made the findings he did in these proceedings. [34] In my opinion the Magistrate was correct in the conclusion he formed on the evidence that there had been an act of domestic violence. Further in my opinion the evidence of Detective Kerlin that the appellant’s wife said she had experienced various degrees of verbal and physical abuse during the course of her 23 years of marriage to the appellant and that the appellant went through certain moods a couple of times each year which lead to physical violence against her provided a proper basis for the Magistrate to make the finding he did that there was a likelihood that domestic violence would occur again. There was also further evidence to support that finding in the contents of Exhibit 2 and in the confidential report. Further there was evidence from Ms Karger that in her opinion the appellant needed to undergo anger management counselling. All of that in my opinion entitled the Magistrate to reach the conclusion he did. He was entitled in my opinion to conclude that previous counselling had not addressed the situation in an effective way nor did the promise of future counselling in light of the history. [35] In my opinion the Magistrate did not err in making the findings he made nor did he err in making the order he made. [36] I therefore dismiss the appeal -- 29 of 29 --