D v G [2004] QDC 477

DISTRICT COURT OF QUEENSLAND CITATION: D v G [2004] QDC 477 PARTIES: D Appellant v G Respondent FILE NO/S: D3730/03; D162/04; MAG11180/03; BEAU-MAG337/03 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane; Magistrates Court, Beaudesert DELIVERED ON: 3 December 2004 DELIVERED AT: Brisbane HEARING DATE: 9 August 2004 JUDGE: McGill DCJ ORDER: 1. Appeal D3730/2003 is allowed, the decision of the magistrate is set aside, and in lieu thereof a verdict of acquittal is entered. 2. Appeal D162/2004 is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – Domestic violence – whether breach of protection order – whether failure to be of good behaviour – whether intimidation. CRIMINAL LAW – Domestic violence – breach of protection orders – whether failure to be of good behaviour – whether intimidation. Domestic and Family Violence Protection Act 1989 s.80(1). Bailey v Costin [1993] QCA 404 – cited. Barrow v Ongheen (Rockhampton appeal 1/97, Nase DCJ, 1.5.97, unreported) – not followed. Higgins v Goldfinch (1981) 26 SASR 364 – considered. Ferguson v Kazakoff [2001] 2 Qd R 320 – considered. R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330 – considered. -- 1 of 11 -- 2 COUNSEL: The appellant appeared in person M A McCormack for the respondent SOLICITORS: The appellant was not represented Director of Public Prosecutions for the respondent. [1] These are two appeals from decisions of magistrates convicting the appellant of offences against s 80(1) of the Domestic and Family Violence Protection Act 1989 (“the Act”), in that he contravened a protection order. On 20 August 2003 the appellant was convicted following a summary trial of breaching the order on 15 January 2003. He was fined $500 and a conviction was not recorded. He has appealed on the ground that the conviction is unsafe and unsatisfactory at law. Before that appeal was heard, the appellant was on 7 November 2003 convicted of contravening the protection order on 7 January 2003, following another summary trial. He was fined $200 and a conviction was recorded. He has appealed on the grounds that his conviction is unsafe and unsatisfactory at law, and that the sentence was manifestly excessive, in that a conviction should not have been recorded. [2] The protection order relied on was one made in the Magistrates Court on 1 May 2002. The order was made in favour of the appellant‟s ex-wife, who was the “aggrieved spouse” for the purposes of that order. The appellant was present when the order was made. The relevant condition of the temporary protection order was that the appellant be of good behaviour towards the aggrieved spouse and not commit domestic violence. The incident on 15 January 2003 [3] The aggrieved spouse in her evidence conceded that there was no Family Court order in place dealing with the rights of the parties in relation to the four children of the former marriage: p.8. There had been an arrangement made between her and the appellant that she would give the appellant access to the children, whom she said he had not seen for some three weeks. She said that the agreement was that he had them for only one hour: p.42. She said that this was subject to the children wanting to go, but it is not clear from her evidence whether she said that to the appellant in their telephone conversation. Her evidence was that only two of the four children were willing to go, and she therefore dropped those two children at the appellant‟s residence. [4] The appellant subsequently went to her parent‟s house, where she and the other children were. She conceded under cross examination that he did not come in but simply came to the gate, and that she went to the gate: p.10. Her evidence was that he said he wanted to see all the children,1 so she went back inside and asked the other two if they wanted to go, but they did not: p.6. They went out to him and explained why they did not want to go, and then the older of the two whom she had earlier dropped off at the appellant‟s house (Jarrod) changed his mind, and decided not to go. The younger, Jett, who was four, still wanted to go with the appellant, but when the aggrieved spouse heard that the appellant was going with Jett she objected 1 She conceded that his statement that he wanted to see all of his children was not angry: p.45. -- 2 of 11 -- 3 to this, came back outside and said that the appellant could not take him: p.7.2 She explained that this was because she was concerned for his safety, if his older brother was not going to be with him: p.9. But this did mean that she was seeking to deny access by the appellant to a child of his who wanted to spend some time with him, and whom she had earlier that morning left in his possession. [5] She said that she had a disagreement with the appellant about this, and in the course of this she went to the front of his vehicle and took the keys out: p.7. She said he was holding Jett, and she took Jett by the hand and held onto him. There was she put it, “sort of to-ing and fro-ing like that”. She said she was saying to Jett, “come with mummy, we are going to have lunch”: p.12. Nevertheless, she conceded that Jett said he would go with daddy.3 She said that while she held Jett‟s hand the appellant grabbed her arm. At that point her father intervened, told the appellant to let go of her.4 She said that he held her arm for about a minute and then he simply let go of it; she then let go of Jett‟s hand, got her mobile and rang the police: p.36. Her father sort of pushed the appellant in the course of which his necklace was broken: p.7. At that point the police arrived. [6] There was a conflict of evidence as to where the appellant was at the time she took the keys; she claimed that he was at the back of the vehicle (p.12) whereas he said that he was about to open the front door, and she bumped him or pushed him in the process of getting the keys: p.104. Her father also said that there was a bit of a bump and a shoving going on when she was trying to get the keys: p.80. Nevertheless, it was open to the magistrate to resolve that conflict in favour of the aggrieved spouse. She agreed he did not try to stop her from taking the keys: p.35. In re-examination it was elicited that she felt scared in the presence of the appellant: p.44. She said that when he arrived she thought he had come for a confrontation, but that was not evidence of his behaviour towards her on this occasion. This evidence was properly objected to on behalf of the appellant. In my opinion it was not admissible. [7] The mother of the aggrieved spouse also gave evidence that at the time when the appellant had Jett in his arm the aggrieved spouse went to take Jett from him and the appellant grabbed her by the arm: p.49. The father of the aggrieved spouse said that he saw the appellant holding Jett and that the aggrieved spouse was trying to take Jett off him, and the appellant would not hand over Jett: p.65. He said that the appellant was just trying to push her away or hold her away. He admitted that at one point he grabbed the appellant by the shirt or the chin: p.65. He said that when he heard sirens coming Jett started crying, and then the appellant gave him to the aggrieved spouse: p.66. He agreed that they were all trying to stop the appellant from leaving with Jett: p.87. [8] The appellant‟s evidence was that he had not seen the children for some time,5 and he had arranged by telephone to have them: p.100. There was no particular time agreed: p.102. He said he was expecting all of them to come, but only the two, Jarrod and Jett, were dropped off: p.100. He said he went to her parents‟ house 2 She said she just said to the appellant, “you are not taking Jett”: p.21. 3 Her father confirmed that Jett had said that he wanted to go with the appellant: p.82. 4 She admitted her uncle also became involved, and spoke to the appellant: p.33. 5 He said 11 months at p.99 but six weeks at p.101. -- 3 of 11 -- 4 where he had a brief conversation with the other two boys, who indicated they did not want to go, and at that point Jarrod said that he would stay too, but Jett still wanted to go, so he went to leave with him when the aggrieved spouse came out and said that he was not taking him anywhere: p.101. He said she tried to grab Jett and he was turning around and trying to prevent her: p.102. He said the others came out as well and tried to stop him from taking Jett. He had said he was going (p.103) and went to get into the vehicle but she grabbed the keys out of the ignition: p.104. He said that she and her father were swearing at him, and her father was threatening him with a golf club. He referred to some further conversation, and claimed that his ex-wife‟s uncle had grabbed him by the shirt and had broken his necklace: p.105. He denied that he had held her arm at any stage: p.109. [9] At the end of his evidence-in-chief the magistrate said (p.109) that it was unnecessary to cross-examine because: “His evidence from the witness box so far, in my view, is not sufficient to excuse him from what I see as a breach of the charge here against him.” Ordinarily, if a magistrate prevented cross-examination of a witness, she could not properly proceed other than on the basis that the evidence of the witness was rejected. But what was said here was rather that, on the evidence of the appellant, he was guilty of the charge anyway. But unless the prosecutor was prepared to accept that version of the facts, there ought to have been cross- examination, if only for the facts to be resolved for the purpose of sentence. Since the magistrate ultimately did not proceed on the basis of the version given by the appellant, in my opinion this intimation was inappropriate. [10] The magistrate went on to indicate that it was her view that the mere fact of his attendance at that address in the context of the breakdown of the relationship amounted to a failure to be of good behaviour towards her: p.110. There may be circumstances under which going to the house where the aggrieved spouse is staying could in a particular context be or be part of conduct which amounted to failing to be of good behaviour towards her, but that in itself would not amount to failure to be of good behaviour merely because the relationship had broken down and the protection order had been made. There was nothing in that order prohibiting him from going to any house where she was known to be or was living. The magistrate went on to say that saying he wanted to see all his children was not being of good behaviour towards her, and failing to leave could also be seen as a failure to be of good behaviour towards her. The matter was then adjourned to 30 May. [11] Apart from the excessively wide concept of failing to be of good behaviour which this exchange reveals, it is not the appropriate way for a summary trial to proceed. It was a matter for the prosecution to particularise the conduct relied on as amounting to failure to be of good behaviour. The solicitor for the appellant said early in the trial (p.10) that no such particulars had been provided. It was not a matter for the magistrate to particularise the charge; the magistrate should have obtained from the police prosecutor the particulars relied on by her, and should have decided the matter on that basis. They should have been provided at the commencement of the hearing. -- 4 of 11 -- 5 [12] In the event the matter did not resume for the purpose of submissions until 25 July 2003. The police prosecutor then made submissions outlining the facts on the basis of the evidence of the aggrieved spouse. [13] The magistrate published written reasons on 20 August 2003 for finding the charge proved. There was, however, no clear statement in the written reasons as to what conduct was found to amount to a failure to be of good behaviour towards the aggrieved spouse, or to be domestic violence. The magistrate did reject the appellant‟s evidence and preferred the evidence of the prosecution witnesses where there was a conflict, which was not the position intimated at the conclusion of the appellant‟s evidence-in-chief. She found that: “It was not right for the defendant to go seeking contact with the two other boys as he did. It was fraught with trouble.” The magistrate appears to have proceeded on the basis that simply to go to the place where the respondent was and seek contact with the other two boys was itself a failure to be of good behaviour towards her. [14] I reject the notion that that in itself can amount to a failure to be of good behaviour. Under the Family Law Act 1975 (Cwth) by s 61C(1) each of the parents of a child who is not 18 has parental responsibility for the child. By s 61B, parental responsibility means all the duties, powers, responsibilities and authority which by law parents have in relation to children. Subsection (2) goes on to provide expressly that this is not affected by the parents having separated, but is subject to any order of a court; it is apparent from the definition of “court” in s 4 that that is a reference to a court exercising jurisdiction under that Act. It follows that the operation of s 61C is not modified by the making of a protection order under the Act. In the event of conflict, the Commonwealth legislation of course has priority.6 [15] There was no order depriving him of parental responsibility in relation to those children, and on the face of it he was entitled to exercise it under the authority of the Family Law Act. How he went about that of course might be modified by the requirements of a protection order, but the mere fact that he sought some contact with his sons could not in itself amount to a breach of that order.7 On the face of it he was allowed some contact with them, and was then proceeding to leave without those who had indicated they did not want to go with him. Up to that point on the evidence of the aggrieved spouse nothing had occurred which in my opinion could amount to a failure to be of good behaviour towards her. [16] In circumstances where there was no order prohibiting contact with her or prohibiting him from going to where she was, he was entitled to go peacefully to where she was and to make contact with her peacefully for the purposes of seeking contact with his sons. There was no evidence from her that anything more than that occurred up to the point when he sought to leave with Jett. Yet on the magistrate‟s findings it was a breach of the order simply to go there. I do not agree. In my opinion it is clear that that behaviour could not amount to a breach of the protection order. 6 Under s 109 of the Australian Constitution. 7 There was also no basis for the characterisation of this on p.4 that he went there “to obstruct what had been pre-arranged.” Indeed, I do not understand that. -- 5 of 11 -- 6 [17] I am not aware of any general discussion of the meaning of the expression “good behaviour” for the purpose of this Act. Indeed, there is little discussion of the concept for any purpose in law, although it is a term which has been used from time to time, and in a variety of contexts. Judges hold office during good behaviour.8 A person convicted of an offence may be released on entering into a recognisance to, among other things, be of good behaviour.9 There is little authority, and no agreement, on the meaning of the expression in the former context. There is also very little authority in relation to the latter context, notwithstanding that there has existed a jurisdiction to require persons in certain circumstances to enter into a recognisance or bond to be of good behaviour for hundreds of years.10 Despite this, the term is not mentioned in “Words and Phrases”, and Stroud refers only to a reference in “Termes de la Ley”, a venerable text but not one frequently cited these days. [18] In 1980 Zelling J confessed that he was unable to find any authority on what is or is not good behaviour,11 and the following year King CJ said there was a paucity of authority as to what sort of conduct is a departure from the standard of good behaviour.12 His Honour concluded that, for the purposes of a breach of a recognisance to be of good behaviour, “conduct must not only be such as to constitute a breach of the law attracting penal sanctions, but must constitute such a breach as can fairly be regarded as a relapse into non law abiding ways.”13 [19] In the same case, Legoe J, after noting at p.383 that “there is a dearth of authority investigating the extent or limits of such a condition”, and referring to the passage in Termes de la Ley, said: “Good behaviour is clearly a term of wide import. In the context of the Act the purpose of such a condition would appear to be mainly rehabilitative and designed to give the child an opportunity to mould into the community again. If the conduct of the child during the tenancy of the condition to be of good behaviour transgresses into the field of community aggression or harm then this promise to adhere to a standard of behaviour would probably be characterised as contrary to good behaviour. The standards of behaviour in communities may vary tremendously by reason of different educational, religious or social beliefs. The standard required of a promisor 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 parlance 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.”14 [20] His Honour went on to add that in a proceeding alleging a breach of recognisance the alleged breaches must be identified with the necessary particulars of the facts relied upon, and added at p.385: “Proof of the commission of an offence subsequent to the bond will not necessarily be on its own sufficient proof of a breach of the condition to be of good behaviour.” There was some discussion of the 8 The Constitution of Queensland 2001 s 60(1). 9 Penalties and Sentences Act 1992 s 32. 10 The matter was dealt with in a statute of 1360: 34 Edward 3, c.1. 11 R v Malone (1980) 23 SASR 195 at 198. I was very relieved to find this statement. 12 Higgins v Goldfinch (1981) 26 SASR 364 at 366. 13 Ibid p.367. 14 This is interesting, but not very helpful. -- 6 of 11 -- 7 particular conduct alleged, various traffic offences, and his Honour concluded at p.387: “The examples given in the old textbooks all tend to suggest a serious interference, harm or assault upon the peace and order of community life.” There is therefore really very little practical guidance as to the limits to the concept of “good behaviour” even in the context of a recognisance. [21] The test for what is a failure to be of good behaviour for that purpose would not necessarily be the same as for what is a failure to be of good behaviour for the purpose of the Act. Nevertheless I think it significant that the South Australian courts which have considered the issue concluded that even conduct which is in breach of the law will not necessarily amount to a failure to be of good behaviour, for that purpose. The inference is that conduct which is not a breach of the law will not be. [22] It may be that the standard of “good behaviour” is more rigorous for the purpose of this Act than for that purpose, but in circumstances where the failure to be of good behaviour is made a criminal offence for which the maximum penalty is imprisonment for one year,15 in my opinion the standard should be not much lower, if indeed lower at all. For present purposes, it is not necessary for me to go further than to conclude that, in my opinion, the mere fact that the aggrieved spouse is unhappy about the conduct of the defendant, or that the defendant is doing something that the aggrieved spouse does not want the defendant to do, or is not doing something that the aggrieved spouse wants the defendant to do, will not without more amount to a failure to be of good behaviour. [23] The magistrate went on to make an alternative finding in the following terms: “Upon the defendant‟s arrival the boys made it clear they did not want to go with him. The defendant did not then leave the scene. It is not accurate to assert (as defence counsel did) that the defendant attempted to leave. He only attempted to leave with the youngest child Jett aged approximately three years. The defendant did not relinquish hold of Jett and involved himself in argument about contact with Jett while the child was in his arms and close witness to the argument occurring between his parents. [The aggrieved spouse] said „Do not take Jett.‟ The defendant refused to comply with that request.” [24] As to this, the first proposition was too wide. Three of the boys did not want to go with the appellant, but the fourth did. The appellant made no attempt to take any of the boys who did not wish to go with him, but did attempt to take one boy who did want to go with him, and who had previously been left at his house by the aggrieved spouse. At that point he did attempt to leave the scene, and would have left the scene except for his being prevented from doing so by the aggrieved spouse and her family. Although there was an argument about the child with him, that was not an argument he started. He was subjected to an attempt forceably, and ultimately violently, to prevent him from leaving with a child of his who wished to leave with him. It was only when the police car came up with its siren going that (on the evidence of the aggrieved spouse) the child showed some willingness to stay with her. Significantly in my view at that point the appellant immediately handed the child back to her. 15 Or if the defendant has been convicted on at least two different occasions of an offence against the subsection within the last three years, two years: s 80(1). -- 7 of 11 -- 8 [25] The magistrate described the actions of the appellant as “the actions of a person who seeks to get his way by force and intimidation.” In my opinion on the evidence of the aggrieved spouse it was her actions that were the actions of a person who sought to get her way by force, and, on the part of her family, by intimidation. On her own evidence there was violence shown to the appellant by her father, and both him and her uncle were trying to prevent him from leaving with his son against her wishes. [26] The magistrate went on to make a finding that the appellant committed domestic violence by “wilful injury to (the aggrieved spouse) in causing her the distress and upset to which she was put that day” and “intimidation or harassment of the spouse by persisting with holding the child Jett after it became clear that it was not appropriate for him to continue contact with the youngest son who was not of an age to be able to make a decision about contact and when the three older sons would not be present at the contact and in the circumstances that the time for contact was coming to an end in any case.” The latter finding appears based on the proposition that contact was entirely a matter within the control of the aggrieved spouse. There was no Family Court order to that effect, and I do not consider that the making of a protection order in these terms has that effect. [27] Furthermore, in my opinion it cannot amount to intimidation or harassment merely to continue to hold the child Jett in circumstances where the aggrieved spouse does not want him to do so. The mere fact that the appellant was doing something which the aggrieved spouse was not happy with does not mean that that amounts to harassment, at least in circumstances where there is no reason to think that he was doing it deliberately in order to harass her. There is certainly no reason to think that that was the case here; there was no basis for any finding other than that he wanted to take the child Jett in order to have the opportunity of some contact with Jett, who is his son.16 In my opinion refusing to hand over Jett to the aggrieved spouse, and seeking to leave with him, in circumstances where Jett was expressing a willingness to go with him, can not amount to intimidation or harassment for the purposes of the Act. [28] As to the question of whether there was domestic violence by causing wilful injury by causing her distress and upset, that does not amount to injury for the purposes of the Act. There was no evidence that she suffered either bodily or psychiatric injury that day. Merely being distressed or upset does not amount to injury for the purposes of the Act. The term “injury” is not defined in the Act. I think it is reasonable enough to treat it as extending to psychiatric injury as well as to physical injury,17 given the nature of the legislation, but not every variety of mental disturbance will amount to psychiatric injury. A similar question was considered by Thomas JA in Ferguson v Kazakoff [2001] 2 Qd R 320 at 324-5, dealing with the boundaries of “mental or nervous shock” which was by definition an injury for the purposes of the compensation provisions of the Criminal Code. There is no reason why the concept should be wider under the Act than under those provisions. I think this analysis provides at least a lower limit for the purposes of the Act. It has also been held that physical pain as such was not an injury for the purposes of those provisions, although it may be a symptom of an injury: R v Tamcelik, ex parte 16 Indeed, the magistrate found at p.3 that his paramount consideration was his wish to see the children or some of them. 17 Compare Deeble v Nott (1941) 65 CLR 105 at 113. -- 8 of 11 -- 9 Ozcan [1998] 1 Qd R 330. If physical pain is not an injury, it is difficult to see how a transient emotional response like being distressed or upset can be. [29] The magistrate referred to the decision of Barrow v Ongheen (Rockhampton appeal 1/97, Nase DCJ, 1.5.97, unreported). There was some similarity between that case and the present, in that both involved a dispute arising in the context of an informal arrangement for access by a father, who was subject to a protection order, to his children. In the course of this, something happened which caused the spouse to seize one of the children, apparently as a result of some misunderstanding (or lack of precision) as to what had been agreed in relation to the access. The magistrate found that the appellant in response had run or jogged over to where the spouse was, verbally abused her father, and then attempted physically to pull the child from the spouse. That child became upset and hit at the appellant, and another child was crying. The magistrate had found this behaviour amounted to a breach of the protection order, and noted that although there had been some degree of provocation that did not apply as a defence under the domestic violence legislation. That is strictly speaking correct, in that provocation is only a defence in the technical sense to a charge of which assault is an element.18 But that leaves unanswered the question of whether provocation in a non-technical sense can properly be taken into account in determining whether there has been a failure to be of good behaviour towards the spouse. [30] It was argued on appeal that before there could be intimidation of the spouse the spouse had to be subjectively intimidated, and there was no evidence that that had occurred. His Honour referred to definitions which he said suggested that “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.” He then went on to hold however that it was not necessary for the prosecution to prove that the target of the intimidation was in fact intimidated. [31] In that case there was no doubt that the spouse was aware of the conduct, and the issue was whether there was some deficiency in the proof offered at the trial. Nevertheless, it seems to me, with respect, that there are difficulties in approaching the matter on an objective basis and without regard to the subjective state of mind of the person alleged to have been intimidated. What if the conduct does not come to the notice of the spouse? I have difficulty in seeing how conduct which might have intimidated the spouse had she been aware of it but of which she was in fact unaware can amount to intimidation.19 It also seems to me that, at the other extreme, a particular act which might objectively not appear to be at all intimidating may have the effect of intimidating a particular spouse, for some reason personal to her. If the person subject to the order deliberately did such an act, knowing that it would intimidate the spouse and intending to achieve that result, it is difficult to see why that should not to be regarded as domestic violence for the purposes of the Act merely because on an objective test the act was not intimidating.20 On the other hand, it is difficult to see why conduct which objectively was likely to intimidate a 18 Kaporonowski v R (1973) 133 CLR 209. 19 MAN v MAM [2003] QDC 398 at [9]; and compare R v Davies [2004] QDC 279, concerning stalking. 20 MAN v MAM (supra) at p.16. The relevant activity was driving with only two fingers on the steering wheel (on a quiet highway). It was not objectively intimidating, but there was a finding that it had been done deliberately to upset the spouse. -- 9 of 11 -- 10 spouse should amount to domestic violence if the particular spouse was not in fact intimidated by it, perhaps because of a particularly stoic or phlegmatic nature. [32] As his Honour noted on p.6 of his reasons, the Macquarie Dictionary definition of the verb “intimidate” implies the target has become intimidated. I would respectfully differ from his Honour‟s approach; in my opinion it is necessary to prove that the spouse was in fact subjectively intimidated in order to show that there has been domestic violence by intimidation. On the particular facts of that case however an inference that the spouse was intimidated was obviously open, in view of the evidence of her response and conduct at the time. His Honour‟s reference to R v Lansbury [1988] 2 Qd R 180 was simply by way of exposition; that decision has nothing to say which is relevant to the present case. [33] One matter which was not relied on by the magistrate in the present case was that there was domestic violence by grabbing her arm, although she did in the course of her reasons find that the appellant did grab her arm. That plainly could amount to an act of domestic violence. Whether it amounts to a breach of the protection order is a matter which has troubled me. Had he been charged with assault, an issue would have arisen as to whether he had a defence of provocation. Even on the evidence of the aggrieved spouse, it seems to me that it would be difficult for a tribunal of fact to be satisfied beyond reasonable doubt that he did not have a defence of provocation to a charge of assault in those circumstances. There was no evidence that he caused her any physical injury, and his action, which he appears to have desisted from reasonably quickly, appears to have been simply a response to her having seized and held onto the hand of the child. [34] However, this was not a charge of assault. It may be that conduct which would not amount to an assault because of the defence of provocation could still be a breach of a protection order. It is ultimately not necessary for me to decide that. [35] In the present case in my opinion the whole trial process miscarried. The matters relied on as a breach of the order were never properly particularised by the prosecution, and, because of the magistrate‟s attitude that it was a breach of the order simply to go to the premises on that day seeking contact with his sons, it seems to me that no proper consideration has really been given to the question of whether there was a breach of the order by grabbing the aggrieved spouse‟s arm. I note that her father gave evidence which seems to me to be inconsistent with an allegation that the appellant grabbed her arm. In all the circumstances, in my opinion even the finding of fact that there was a grabbing of the arm is unsafe. [36] In theory there could be a new trial in relation to the issue of whether the arm was grabbed, and if so whether that amounted to a breach of the domestic violence order. But if it was a breach, in circumstances where it seems to me to have been a moderate response to provocation on the part of the aggrieved spouse, it was at worst a very minor breach of the order. Accordingly, in my opinion it would not be appropriate for there to be a further trial simply to ascertain whether there was a breach in that respect. The appeal is allowed, the decision of the magistrate is set aside, and in lieu thereof a verdict of acquittal is entered. -- 10 of 11 -- 11 The incident on 7 January 2003 [37] On 19 November 2003 the appellant was convicted after a summary trial before a different magistrate that he breached the protection order on 7 January 2003. That case was about telephone calls made by the appellant to the aggrieved spouse on that date. The prosecution alleged that in one of those telephone calls the appellant said: “I am going to find you tonight, kill you and take the kids.” The aggrieved spouse had given evidence that he said this and that she was very frightened for herself and the children as a result, and rang the police the same night. [38] It could hardly be doubted that conduct of that nature amounted to a breach of the protection order. It clearly amounts to a failure to be of good behaviour towards the aggrieved spouse, and would also amount to intimidation of her, and a threat of violence against her, so as to be domestic violence as defined in the Act. The appellant admitted that he made the telephone call, but denied that he made that statement during the call. [39] The issue before the court therefore was whether the magistrate was satisfied beyond reasonable doubt by the evidence of the aggrieved spouse that those words had in fact been said by the appellant. The magistrate gave reasons for not accepting the evidence of the appellant, and accepted the evidence of the aggrieved spouse, and found on the basis of that evidence that he was satisfied beyond reasonable doubt that the relevant words had been spoken. On that basis the magistrate found the charge proved. [40] There is nothing in the reasons of the magistrate to suggest that there was any error made in arriving at those conclusions. I have read the transcript of evidence, in the course of which the aggrieved spouse did give evidence that the phone call was made in those terms. She did not resile from that under cross-examination. The appellant gave evidence to the contrary, but it was open to the magistrate to reject his evidence and to accept the evidence of the aggrieved spouse. The magistrate had the advantage of having seen and heard the witnesses give their evidence, which is a matter of some significance: Bailey v Costin [1993] QCA 404. Accordingly the appeal against conviction must be dismissed. [41] With regard to the appeal against sentence, a fine of $200 was imposed which is quite modest and reflected the financial problems that the appellant spoke of following his conviction, particularly in circumstances where he was given two months to pay, the period requested by him. With regard to the recording of a conviction, the magistrate said that this was the first time he had come before the court in a matter such as that. The police prosecutor had referred to a brief history for other, minor offences, which was tendered. Of course by the time this matter came on his criminal history would have included the offence which is the subject of the other appeal; although those facts occurred subsequently, the trial had already taken place by then. The appellant did not put any material before the sentencing magistrate to suggest there would be any particular adverse consequences to him of the recording of a conviction. In all the circumstances, I could not conclude that recording a conviction was outside the scope of a proper sentencing discretion. The appeal as to sentence should also be dismissed. As a consequence appeal D162/2004 is dismissed. -- 11 of 11 --