AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 24 April 2008

Long v Eid

[2008] NSWDC 367

Domestic & family violence
CRIMINAL LAW APPEAL FROM LOCAL COURT DECISION DOMESTIC VIOLENCE APPLICATION REFUSED ISSUE FOR DETERMINATION MEANING OF "SAFETY" CONSIDERED MEANING OF "PROTECTION" CONSIDERED

Citation: Long v Eid [2008] NSWDC 367
Court: District Court of New South Wales
Date: 24 April 2008
Judge(s): Nicholson SC DCJ

Background

The appellant was a woman who had made a domestic violence complaint to police in June 2007 concerning the respondent, her former partner. Police initiated a formal complaint on her behalf in July 2007, seeking an apprehended domestic violence order (ADVO). Four separate incidents were the subject of evidence, involving derogatory and abusive language by telephone and in person, and one incident of deliberate spitting.

The matter was heard in the Local Court at Parramatta in November 2007, where Magistrate Hannam found that the appellant had reasonable grounds to fear intimidation and did in fact fear it. Despite those findings, the magistrate refused to make an ADVO, concluding that the intimidation was of the lowest order, consisting primarily of bad language and verbal abuse, and was therefore insufficient to warrant the order.

The appellant appealed to the District Court. By the time of the appeal, approximately eleven months had passed since the original complaint without any further reported incident.

  • Whether the level of intimidation established before the Local Court was sufficient to warrant the making of an ADVO under the Crimes (Domestic and Personal Violence) Act 2007.
  • Whether the magistrate had applied too narrow an interpretation of the concepts of "safety" and "protection" as used in the objects of the Act.
  • Whether the passage of time and the absence of any further incident since the magistrate's decision affected whether an ADVO should be made on appeal.

Decision

Nicholson SC DCJ accepted the magistrate's factual findings that the appellant had reasonable grounds to fear intimidation and did fear it. However, the District Court disagreed with how the magistrate assessed the significance of that intimidation. The court identified multiple criteria relevant to gauging the seriousness of intimidation: the vulnerability of the person targeted, the frequency of the conduct, the methods employed, and the objective the intimidator sought to achieve.

Applying those criteria, the District Court characterised the intimidation as low in the order, though not the very lowest. The conduct included verbal abuse, demeaning language, a threat to kill on one occasion, and deliberate spitting, which the court treated as constituting an assault causing a sense of demeaning.

The District Court held that the magistrate had interpreted the words "safety" and "protection" in section 9 of the Act too narrowly, confining them to physical safety. The court took the view that both concepts extend to mental and emotional wellbeing. On that broader interpretation, the conduct before the magistrate was sufficient to warrant an ADVO.

Turning to changed circumstances, the court acknowledged the eleven months that had elapsed without further incident. It considered this relevant to the duration rather than the making of the order. The court was satisfied the evidence remained sufficient to warrant an ADVO, but limited it to twelve months from the date of judgment, leaving open any future application if circumstances warranted it. The court also made clear that the order was not intended to interfere with the respondent's relationship with his son.

Orders Made

  • An ADVO made for a period of twelve months from 24 April 2008.
  • Mandatory conditions (a), (b), and (c) imposed, with the respondent's name inserted after the word "relationship" in condition (a).
  • Additional orders in terms of conditions 3, 5, 6, and 11.
  • The respondent's son named as a protected person (inserted into condition 1(a) for abundant caution).
  • The court noted the order was not intended to inhibit contact between the respondent and his son.

Key Takeaways

  • The District Court held that the concepts of "safety" and "protection" in the objects of the Crimes (Domestic and Personal Violence) Act 2007 encompass mental and emotional wellbeing, not only physical safety, and courts must be guided by that broader meaning when exercising powers under the Act.
  • A finding by a lower court that the applicant had reasonable grounds to fear intimidation and did fear it can be sufficient to support an ADVO even where the intimidation is of a low order, provided the broader statutory objects are correctly applied.
  • Deliberate spitting, even absent physical injury, was treated as an assault capable of constituting intimidation through its demeaning effect.
  • Several factors bear on the seriousness of intimidation: the vulnerability of the person targeted, the frequency of conduct, the methods used, and the purpose the conduct was designed to achieve.
  • The absence of further incidents during a period between the original hearing and an appeal does not necessarily defeat an ADVO application, but may be relevant to the duration of any order ultimately made.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), particularly section 9(4) and the objects of the Act relating to safety and protection.

Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336 (referenced in the judgment as the standard of proof applicable in civil proceedings involving serious allegations).