Citation: Wright v R (No. 2) [2021] NSWDC 766
Court: District Court of NSW
Date: 24 September 2021
Judge(s): Neilson DCJ
Background
The appellant had been sentenced in the Local Court at Muswellbrook following proceedings that also resulted in a final Apprehended Violence Order (AVO) being made against him on 22 March 2021. The AVO contained several conditions restricting the appellant's contact with his former wife (the complainant) and the three children of their marriage, including prohibitions on approaching them within 50 metres, contacting them other than through a lawyer or by court-approved means, and being in their company within 12 hours of consuming alcohol or illicit drugs.
The appellant appealed to the District Court against the making of the AVO. The background to the matter involved a family dispute that came to a head on 20 December 2019, following a post the appellant made on a local community Facebook page. The complainant had subsequently led police to a crossbow and marijuana plants at the property, items the court noted she appeared to have known about before that date.
By the time of the appeal, the complainant and the three children were residing in the Northern Territory. The appellant had had no contact with his children for approximately two years.
Legal Issues
- Whether domestic violence had been proved on the balance of probabilities, the standard required to sustain the AVO (as distinct from the higher criminal standard of proof beyond reasonable doubt applicable to the underlying convictions)
- Whether the evidence of the complainant was sufficiently reliable and cogent to satisfy the requirements of section 140(2) of the Evidence Act 1995 (NSW), as informed by the Briginshaw principles
Decision
Issue 1: Standard of proof and the reliability of the evidence
The District Court observed that the criminal convictions had already been set aside, those having required proof beyond reasonable doubt. The AVO, however, required only proof on the balance of probabilities (at [7]). The court nonetheless had to be persuaded, to that lower standard, that some episode of domestic violence had occurred (at [9]).
The court assessed the credibility of the two principal witnesses. Neilson DCJ found the appellant's evidence to be more plausible than the complainant's and noted that the complainant appeared to have a motive to act against the appellant's interests. The court pointed to her apparent prior knowledge of the crossbow, marijuana plants, and ammunition, and the fact that she had led police to those items only after the Facebook dispute (at [8]).
Issue 2: Application of Briginshaw principles
Section 140(2) of the Evidence Act 1995 reflects the common law standard articulated in Briginshaw v Briginshaw, which requires that the tribunal of fact exercise care and caution proportionate to the gravity of the allegation when assessing civil proof. Applying that standard, the court was not persuaded on the balance of probabilities that the domestic violence the complainant described in her evidence had in fact occurred (at [10]). The AVO was accordingly set aside.
Orders Made
- The AVO made by the Local Court at Muswellbrook on 22 March 2021 is set aside.
Key Takeaways
- The District Court confirmed that while criminal charges arising from domestic violence incidents require proof beyond reasonable doubt, an AVO made in the same proceedings requires proof only on the balance of probabilities (at [7]).
- A lower civil standard of proof does not mean an undemanding one: the court applied the Briginshaw principles as codified in section 140(2) of the Evidence Act 1995, requiring careful scrutiny of evidence proportionate to the seriousness of the allegations (at [10]).
- Where the evidence of a complainant is found to be less plausible than that of the defendant, and where there is material suggesting the complainant had an ulterior motive, those factors can be sufficient to prevent satisfaction of even the civil standard of proof required for an AVO (at [8]-[10]).
- Setting aside underlying criminal convictions does not automatically determine the outcome of an associated AVO appeal, since each involves a distinct standard of proof (at [7], [9]).
- The court expressed concern about the appellant's two-year separation from his children and observed, in passing, that the family circumstances before the incident suggested the children may have been closely bonded to the appellant, who had been their primary carer (at [5]-[6]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336