SSW v Commissioner of Police & Anor [2026] QDC 2

District Court of Queensland|2026-01-30

MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - APPEAL - where the appellant and second respondent made cross applications in the Magistrates Court for the making of a Protection Order - where pursuant to s 37 of the Domestic and Family Violence Protection Act ('the Act') the Magistrate made a Protection Order naming the appellant as the respondent and dismissed the appellant's application against the second respondent - where the appellant submits the Magistrate erred in findings of fact that he had committed acts of domestic violence and that the second respondent had not committed acts of domestic violence - whether the Magistrate erred in his findings of fact - whether the orders of the Magistrate should be disturbed.

MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - APPEAL - where the appellant applies to adduce further evidence on appeal - where the evidence sought to be adduced is new evidence - whether there is good reason to admit the evidence for consideration on appeal.

Criminal Code Act 1899, ss. 23, 245, 277, Ch 29A.

ADH v AHL [2017] QDC 103.

Ashley v Marinov [2007] NTCA 1.

Brawn v The King [2025] HCA 20; (2025) 423 ALR 69.

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

Builders Licensing Board v Superway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616.

Coal v Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194.

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472.

Doerr v Gardiner [2023] QCA 160.

DU v Jackson (DCJ) [2024] QCA 122.

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392.

GKE v EUT [2014] QDC 248.

HBY v WBI and Anor [2020] QDC 81.

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659.

McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612.

McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13.

MDE v MLG & Queensland Police Service [2015] QDC 151.

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259.

PAD v GA [2022] QDC 125.

Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355.

R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229.

R v Spina [2012] QCA 179.

R v War Pensions Entitlement Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228.

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510.

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679.

Rodi v State of Western Australia [2018] HCA 44; (2018) 265 CLR 254.

Sudath v Health Care Complaints Commission [2012] NSWCA 171.

Sutton v Hunter and Anor [2022] QCA 208.

University of Wollongong v Metwally (No 2) (1985) 60 ALR 68.

WJ v AT [2016] QDC 211.

Mr J.R. Hunter KC and Mr S.J. Bain for the appellant.

Gilshenan & Luton Lawyers for the second respondent.

[1] At all relevant times, the appellant and the second respondent were husband and wife, and both were, and still are, serving police officers. On 19 September 2023, a police officer, Sgt Turgeon, issued a Police Protection Notice under the Domestic and Family Violence Protection Act 2012 ("the Act"), naming the appellant as the respondent and the second respondent as the aggrieved. Subsequently, the appellant brought a cross-application seeking a Protection Order in his favour. In order to save confusion, in the course of these reasons I will refer to the parties by the role they have in this appeal.

[2] The cross-applications were heard conjointly over two days and, on 8 October 2024, the presiding Magistrate, having been satisfied of the matters requiring consideration under ss. 22A and 37 of the Act, refused the application brought by the appellant and allowed the application brought by the first respondent, making the Protection Order the subject of this appeal.

[3] On 1 November 2024, the appellant filed an appeal against the making of that Order, and the refusal to make an Order naming him as the aggrieved and the second respondent as the respondent. He now seeks leave to amend the grounds of the appeal, which leave is not opposed by any party, in the following terms:

The learned Magistrate erred in finding that the appellant had committed acts of domestic violence;

a) The finding was unreasonable;

b) The learned Magistrate erred in failing to pay any or sufficient regard to [the second respondent] initially disavowing/ providing an inconsistent version of the domestic violence which she subsequently alleged.

c) The learned Magistrate erred in failing to pay any or sufficient regard to the failure to allege the physical abuse was in the context of two sworn affidavits where she was seeking the Court to make a domestic violence order in her favour.

d) The learned Magistrate erred in failing to pay any or sufficient regard to [the second respondent] being a police officer who would be aware of the significance of the undisclosed physical abuse, the importance of providing a truthful account and the consequences for not doing so.

e) The learned Magistrate erred in failing to pay any or sufficient regard to the context in which the subsequent allegations arose which included a motive to inflate her allegations given a Magistrate had considered the evidence and had observed [the appellant] had not committed any acts of domestic violence and refused to make a temporary protection order.

f) The learned Magistrate erred in finding that [the second respondent's] allegations of physical abuse was supported by [the appellant's] acceptance of surrounding circumstances and [the second respondent's mother's] evidence.

g) The learned Magistrate erred in finding that [the appellant's] version about the incident at [XX] Road was absurd.

h) The learned Magistrate erred in failing to pay any or sufficient regard to the innocent explanation for [the second respondent's] injury in August 2023.

The learned Magistrate erred in failing to consider the proper context of the incident on 15 September 2023 and whether what occurred constituted 'physical abuse'.

The learned Magistrate erred in finding that the second respondent had not committed acts of domestic violence:

a) The finding was unreasonable.

b) The learned Magistrate erred in failing to pay any or sufficient regard to [the second respondent's] insistence that the demolition would occur.

c) The learned Magistrate erred in failing to pay any or sufficient regard to the timeframes [the neighbour] heard banging at [the investment property] on 18 September 2023.

d) The learned Magistrate erred in failing to pay proper regard to the entirety of the conversation between [the neighbour] and [the second respondent] on 18 September 2023.

e) The learned Magistrate erred in failing to pay any or sufficient regard to other behaviour by [the second respondent] on 18 September 2023 that evidenced a bad intention.

f) The learned Magistrate erred in reasoning that [the second respondent's] behaviour of limiting the time spent with his children was not domestic violence because it was 'not unusual'.

New evidence shows that a miscarriage of justice occurred.

[4] The third ground of appeal was added without objection at the oral hearing of the appeal. The appellant's associated application to adduce further evidence on the appeal[1] is opposed by both respondents, at least in so far as it relates to material relevant to that third ground of appeal.

[5] It can be seen that there is no complaint about his Honour's determination of the issues under ss. 22A and 37 of the Act, given the findings he made. The complaints relate to the findings that the appellant committed acts of domestic violence, and that the second respondent did not. However, the appellant submits that different conclusions under ss. 22A and 37 of the Act will be reached once those factual errors are corrected.

[6] A person who is aggrieved by a decision to make or to refuse to make a Protection Order may appeal that decision.[2] The appeal is by way of a re-hearing on the record,[3] and so the appeal is to be decided on the evidence and proceedings before the Court below, unless the appellate Court makes an order to the contrary,[4] such as allowing the admission of further evidence on the appeal. Further, on an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing; "the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance."[5]

[7] The onus is on the appellant to show that there is some error in the decision under appeal.[6] The powers of this Court to interfere with the orders below are exercisable only where the appellant can demonstrate that, having regard to all the evidence, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, or that the findings cannot stand in light of further evidence not adduced below. The demonstration of error is essential. It is not enough to demonstrate that the appellate court could reach a contrary view.

[8] There are "natural limitations" that exist in the case of any appellate Court proceeding wholly on the record, including the fact that the Magistrate had the advantage of seeing and hearing the witnesses in assessing their credibility and reliability.[7] The task confronting the appellate court is to undertake a real review of the evidence, in light of any additional evidence exceptionally allowed to be admitted on the rehearing,[8] and making allowance for those natural limitations. That includes making my own determination of relevant facts in issue, including any inferences to be drawn, while giving due respect and weight to the Magistrate's conclusions.[9]

[9] Further, as was observed in Doerr v Gardiner:[10]

"The appeal court must conduct its review on appeal having regard to the way in which the parties chose to conduct their litigation for they are generally bound by their conduct of the trial and confined to the issues they litigated in it."

[10] A footnote to that passage cited the observations of the plurality in University of Wollongong v Metwally (No 2)[11] explains the reason for that approach_:_

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

Most of the particulars of the present grounds of appeal allege error in the factual findings made. In respect of those allegations, error will be proven if it can be established that the finding was contrary to the evidence. The test to be applied is often framed as needing to establish that the finding was contrary to "incontrovertible facts or uncontested testimony", was "glaringly improbable" or was "contrary to compelling inference".[12] While it is undesirable to fix stringent labels to the nature of the test, those observations demonstrate the high bar that must be cleared by an appellant seeking to overturn findings of fact. It is a daunting, but not impossible, task.

[12] If the conclusion is reached that there has been error below, the Court must act on the correct basis, as it finds it to be. The relevant principles have been helpfully summarised in Sutton v Hunter and Anor.[13]

[13] In the present matter I have concluded, for reasons to be explained below, that his Honour did err in the assessment of the second respondent's credibility and in his findings concerning some of domestic violence allegations. Accordingly, I must reach my own conclusions.

[14] The powers to dispose of the appeal are found at s. 169 of the Act. Under s. 169(2) of the Act, the decision of this Court is final and conclusive.

[15] In deciding any matter on the rehearing of the cross-applications, the applicable standard of proof is the balance of probabilities. Although not expressly the subject of submissions on the appeal, all parties agreed below that, given the potential consequences to the employment of both the appellant and the second respondent, clear satisfaction of the issues in dispute is appropriate.[14] I agree. I also must bear in mind that the onus of proof is held by variously the appellant and the first respondent, depending on the allegation being considered.

[16] In conducting the rehearing, the rules of evidence do not apply.[15] However it is well settled that the Court's decision must derive from relevant, reliable and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.[16]

[17] Lastly, and as something of a footnote, s. 158(1) the Act provides that the Court is to be closed on the hearing of an application under the Act. The Act also provides for an appeal, not an application for leave to appeal. Hence, the Act does not expressly provide that the Court is to be closed on the hearing of an appeal. These reasons have been anonymised, in a manner consistent with s. 159(2)(d) of the Act. I have done that because to do otherwise would render futile the closure of the Court below for the hearing of the application. It is consistent with what I understand to be the widely held view of members of this Court. Nonetheless, it is a matter that I consider is deserving of legislative guidance.

The application to adduce further evidence - legal principles.

[18] The exceptional nature of allowing an appeal on a different basis to that conducted below has earlier been noted. The power to receive further evidence on the appeal is found at s. 168(2) of the Act, which is in general terms that do not directly provide assistance as to the test to be applied. In that respect, I gratefully adopt the observations of Moynihan QC DCJ in HBY v WBI and Anor:[17]

"The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 [2019] HCA 35; (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include "that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.": see s. 4(1) of the Act."

[19] According to that test, the threshold for admissibility is one of "good reason" to admit the further evidence; error does not need to be established. The determination of the issue will be informed by common law principles as to the admission of fresh or new evidence on appeal. Therefore, the cogency of the further proposed evidence to the issues under consideration will be a relevant consideration. While those principles inform, but do no necessarily determine, the admissibility issue, they will usually be of considerable weight in its determination.

[20] In the present instance, the appellant accepts that the proposed further evidence is new evidence, and not fresh evidence. Nonetheless it is helpful to contrast the different tests for admissibility of the two classes of further evidence at common law.

[21] Evidence sought to be adduced on appeal is fresh evidence only if the evidence did not exist at the time of the trial, or could not have been discovered by the exercise of reasonable diligence by the person seeking to adduce it.[18] Where fresh evidence is admitted on appeal, the Court will allow the appeal if, upon all of the admissible evidence at the trial together with the fresh evidence, there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant.[19] In Mickelberg v The Queen,[20] Toohey and Gaudron JJ observed that the rationale for setting aside a conviction on the basis of fresh evidence is that the absence of such evidence from the trial was a miscarriage of justice, but there is no miscarriage of justice in a failure to adduce at trial evidence that was then available or could have been made available by the exercise of reasonable diligence.

[22] Further evidence that does not meet the test for being classified as fresh evidence is called new evidence. An application to adduce new evidence on appeal may be refused because it did exist at the time of the trial, or it could with reasonable diligence have been discovered then by the party seeking to adduce it, but the Court retains a residual discretion to receive further evidence if that is necessary to avoid a miscarriage of justice.[21] That is a more difficult test to satisfy than the fresh evidence test and, therefore, for new evidence to be admitted on the appeal, it must possess a high degree of cogency and relevance to the issues in the appeal.

[23] Although I have referred to common law principles for the admission of further evidence in criminal proceedings, the present appeal is not an appeal in a criminal proceeding. Nonetheless, the principles remain applicable for the reasons stated by Cash QC DCJ in PAD v GA.[22] None of the parties have argued to the contrary.

[24] The appellant submits that the test for the admission of new evidence should be considered in light of what has more recently been said by the whole of the High Court in Brawn v The King[23] as to what amounts to a miscarriage of justice. The submission, if accepted, would have the effect of substantially lowering the bar for the admission of new evidence on an appeal. It, however, cannot be accepted. Without having recourse to the different contextual and policy considerations that apply to an appeal under the common form criminal appeal provision and the application for admission of new evidence, the Court itself expressly excluded its findings from utility in an application of the present sort, and thereby maintained the present understanding of the test of admissibility.[24] On that basis alone, the submission cannot be accepted.

[25] The factual allegations are complicated. I have read all of the material before the Court below, and I have listened to the recordings on which his Honour relied to reach his decisions. What follows immediately below is a general overview of the matter to give context to the later consideration of the factual allegations, as they are relevant to the appeal.

[26] As earlier noted, the appellant and the second respondent were, and still are, serving police officers. They were married in 2006, and separated on or about 13 August 2023. There is no dispute that they were in a relevant relationship for the purposes of the cross-applications. They have four children: E (aged 17 years at the time of the separation), Y (14 years), M (9 years) and C (4 years). By September 2023, at the latest, the relationship between the appellant and E was very poor; E wanted nothing to do with his father and it was said he was openly hostile to and about him.

[27] It appears that, during their marriage, they had bought and sold properties. Of present relevance, at the time of their separation they had a primary residence in a suburb south-west of the Brisbane CBD ("the primary residence"), and an investment property south-east of it ("the investment property"). A decision had been made prior to their separation to demolish the residential building on the investment property and rebuild. To that end, discussions were on-foot with a demolition business and a builder since at least 7 August 2023. On that date a deposit of "a significant amount of money", presumably about $6,500, was paid to a demolition business.[25] The appellant accepts that the children had been told in August 2023 that they could help demolish parts of that residence, although which parts was not revealed with precision.[26]

[28] In April 2023 the appellant commenced a sexual relationship with another woman, Ms. A, who also was, and still is, a police officer. The second respondent became aware of this extra-marital affair on or about 11 August 2023. The appellant stopped living in the primary residence from about 13 August 2023, and it was decided he would live in the investment property. At that time, it had running water but no electricity, and it was sparsely appointed. There are allegations of conduct by both the appellant and second respondent that they respectively submit amounts to domestic violence on that day, as well as prior to and after it. These allegations are considered in more detail below.

[29] Prior to lunchtime on 18 September 2023, the second respondent and the four children attended the investment property, when the appellant was not there. This incident is considered in more detail later, but it is sufficient for present purposes to note that while they were there, loud banging noises were heard coming from the residence and that the second respondent conversed with a neighbour about the intended demolition of the residence.

[30] That afternoon the appellant returned to the property and found that the premises had been extensively damaged. He attended the local police station to make a complaint. After waiting 31/2 hours without being attended to, he directly rang the District Duty Officer to complain. Sgt Turgeon, who was of a lesser rank than the appellant, decided to attend the police station and spoke with him. There, he told her that he had advice from a solicitor and from a Magistrate, whom he named, to obtain a "DV order". She then arranged for both of them to attend another police complex where she obtained from him an affidavit in which he asserted he was the victim of domestic violence. The affidavit was not signed at that time, which was the very early hours of 19 September 2023. Arrangements were made for another police officer to attend the investment property to photograph the damage. That was unsuccessful.

[31] Later that day, in the afternoon, Sgt Turgeon conducted an interview with the second respondent. She referred to the second respondent as the aggrieved at the commencement of that interview. That evening she issued a Police Protection Notice, and arranged for it to be served on the appellant.

[32] Although the evidence on this aspect of the matter is unsatisfactory, it appears that on 27 September 2023, the matter was heard and the then presiding Magistrate declined to make a Temporary Protection Order ("TPO") under the Act, but did give directions for the filing of material for the ultimate hearing. On 22 November 2023 the appellant filed the cross-application and, I am informed from the Bar table, a TPO was made in his favour. It is here convenient to note that the making of, or refusal to make, a TPO is of no relevance in itself. The appellant contends that those events are relevant to a contextual understanding of the submissions as to factual error.

[33] It is also of contextual relevance to note that the appellant has suffered from mental health illness, to varying degrees, throughout the relevant period.

[34] A consideration of the whole of the evidence below reveals that the separation was far from amicable. While the second respondent asserts that she took steps to repair the marriage shortly after discovering the affair, the appellant's continued association with Ms A after he had told the second respondent that he would cease contact with her, created further bitterness. The acrimony flowed both ways.

[35] It is against that context that his Honour considered the following allegations (which I have re-arranged into a roughly chronological order), each of which were said by variously the appellant and the second respondent to have amounted to domestic violence being perpetrated by the other on them.

a) The incident in the car on a date unknown between August 2009 and June 2010 where the second respondent alleges the appellant punched her to the face ("the XX Road incident");

b) The incident in Roma in 2012 or 2013 where the second respondent alleges the appellant punched her to the face;

c) The incident in Grange Road in 2016 where the second respondent alleges the appellant struck her;

d) The incident on 13 August 2023 where the second respondent alleges the appellant elbowed her to the face;

e) The incident on 15 September 2023 where it is variously alleged that the second respondent assaulted Ms A, and was assaulted by the appellant;

f) The damage to the investment property on 18 September 2023;

g) Allegations by the appellant that the second respondent deprived him of access to a motor vehicle;

h) The second respondent stealing items from the investment property;

The second respondent's attempts to contact the appellant after the removal of $100,000 from a joint bank account.

j) The appellant's allegations that the second respondent deprived him of contact with the children;

k) E's 18th birthday party;

General allegations by the second respondent about coercive control;

m) General allegations by the appellant about economic abuse;

n) The second respondent's unauthorised access to the appellant's emails; and

o) The second respondent's conduct towards the appellant as a pattern of behaviour.

[36] His Honour, correctly, noted that the various allegations required consideration of what amounts to domestic violence,[27] the meaning of "emotional or psychological abuse"[28] and of "economic abuse".[29] He also correctly noted that proof of a relevant relationship was not in issue.

[37] On appeal, the appellant has particularly pressed assertions of error in relation to the incidents numbered a) to f) inclusive and j).[30]

[38] The credit and reliability of each of the appellant and the second respondent was an important issue below, and remains so on the rehearing.

[39] Although there was no explicit finding to this effect, it is clear that his Honour was generally impressed by the second respondent's credit and reliability, but was not with the appellant's.

[40] His Honour made broadly positive findings concerning the second respondent's credit and reliability at different points of his reasons. For example, he found her to be, generally, a measured, reasonable and understandably reluctant witness,[31] that her accounts in some respects were supported by photos or independent observations of bruising injuries, as well as the observations of her mother of "unexplained injuries"[32] and that she was an honest and reliable witness.[33] More generally, his Honour tended to prefer the testimony of the second respondent where it was in direct conflict with the appellant's. There are, however, reasons to doubt the accuracy of his Honour's assessment of her credit and reliability overall.

[41] First, his Honour erred in finding that the second respondent's mother's account of unexplained injuries provided support for the XX Road incident.[34] Her affidavit refers to observing injuries over "recent years", as well as shortly after the separation in August 2023. The meaning of the term "recent years" was not explained, and so it should take its usual meaning, which would not encompass some 13 or 14 years prior. Further, her description of the injuries, other than that observed shortly after the separation, is so vague as to be incapable of relating to, or being consistent with, the complained of injury arising from the XX Road incident, or any other particularised incident. That is especially so in circumstances where her work duties were so dynamic that bruises were not necessarily unusual. Finally, there was no dispute that the second respondent suffered an injury in the XX Road incident; what was in issue is how it was caused. An observable injury, even if it could be attributed to an incident, did not support the second respondent's account; it is irrelevant to the issue of causation and cannot provide the support his Honour referred to.

[42] The same criticism does not apply to her observation of the second respondent having a black eye shortly after the separation. That evidence did provide support for the second complainant's account, for reasons that will be explained below.

[43] Second, the nature of the explanation given, and the way it was revealed in evidence, concerning the damage to the property on 18 September 2023 should have resulted in his Honour considering that some care was needed when assessing the second respondent's overall credit and reliability. I explain the reasons why that is the case below. His Honour did not express any consideration of these matters in the course of his reasons, and so it must be assumed he did not factor it into his assessment of her credit and reliability generally.

[44] Thirdly, the second respondent testified that she became aware of the transfer of $100,000 from an offset account on 20 September 2023. She testified that she was concerned to make sure that the money had not been removed by a third party and sought to contact the appellant a number of times while she was at the Court for a hearing. That is, necessarily, during business hours. There is some supportive evidence of efforts made to attempt to contact the appellant about this subject during business hours.[35] However, exhibit 16 also demonstrates that there were 39 occasions between 8.29 pm and 8.50 pm that evening where the appellant was rung from a "no caller id" number, and that the appellant answered a call at 8.57 pm. The second respondent made no reference in her affidavit to any contact, apart from the one successful telephone call. In cross-examination she accepted she was responsible for at least some of these unsuccessful calls in the evening - she estimated about 5 - but this was after she had seen the appellant's affidavit. She stated that she could not be accurate with the number of unsuccessful calls made, but denied she was responsible for all 40.[36] His Honour dismissed the appellant's complaint that this contact amounted to domestic violence, but does not appear to have taken into account the initial failure to mention the night-time contact in its full context.

[45] The appellant strongly asserts that a highly pertinent feature of the evidence is that the second respondent did not make any complaint of a physical assault at the hands of the appellant, and positively denied any had occurred, until she filed her third affidavit in the proceedings on 13 February 2024, apart from the incident of 15 September 2023 and a broad and unparticularised assertion in her first affidavit, sworn 30 October 2023, of physical abuse in circumstances where other allegations of emotional, psychological and economic abuse were particularised. Further, it is emphasised that in fact prior to that third affidavit she had said that the appellant had been a good husband and father, and that the particularised complaints were only made after she was refused a TPO, meaning that she had a motive to fabricate the complaints. The appellant's submissions that these factors should have meant that her complaints of physical abuse cannot be accepted is another way of saying that they are matters that overwhelmingly bear on the assessment of her credit and reliability.

[46] His Honour was clearly alive to the importance of the issues raised, but determined, in effect, that due to his credit assessment of the second respondent, including because he considered there was corroborative support for aspects of her accounts, and bearing in mind the accumulated knowledge reflected in the jury directions referred to in Part 6A of the Evidence Act 1977, that they did not raise sufficient doubt about the accuracy and reliability of those complaints.

[47] Given that I must assess all the evidence and reach my own conclusions, I note that the delay in those complaints is a relevant feature, but not the only one, and I have to conduct my assessment of the evidence in light of the advantage that his Honour had in seeing and hearing the second respondent.

[48] The essence of the appellant's submissions is that the presumed knowledge held as a police officer of the importance of timely and fully accurate complaints overshadows the considerations reflected in the jury directions found in Part 6A of the Evidence Act 1977, and that in any event the explanation does not hold true when the conduct of the second respondent on 18 September 2023, as the appellant submits it should be seen, is taken into account.

[49] I accept that the second respondent's presumed knowledge as police officer is a relevant consideration, but it does not necessarily outweigh all other considerations. If it did, it would create a separate class of domestic violence complainant, which is contrary to the main objects and principles of the Act.

[50] The explanation given by the second respondent for her delay in making particularised complaints of physical violence[37] is eloquent and compelling, as did his Honour. It is clear on the material that she cared deeply for the appellant, at least prior to their separation. It is notorious that serving police officers who are reported for domestic violence usually face internal disciplinary investigations, and that the revealing of mental health challenges can also result in workplace changes, whether a police officer or not. It is also not difficult to accept that there is a deal of embarrassment in a serving police officer admitting to being a victim of violent crime, even where some of the complaints are revealed. The stated reasons for her reluctance in complaining are consistent with the recording by Sgt Turgeon on 19 September 2023 which reveals the second respondent, in effect, saying she did not want to make a complaint of domestic violence due to the possible repercussions on the appellant's mental health.

The application to adduce further evidence - the text messages

[51] The application to adduce further evidence concerns three categories of further evidence. The first is the text messages which will be the subject of consideration immediately below. The second is a copy of a consent order made in concurrently running proceedings in the Federal Circuit and Family Court of Australia, and the third comprises two different letters sent by the second respondent's family law solicitors to the solicitors for the appellant in the family law proceedings.

[52] I did not understand the first or second respondent to oppose the admission of the second and third categories of that evidence. However, exhibit 18 below is the sealed copy of the consent order, and so its admission is unnecessary. The application for its admission is refused on that basis.

[53] The third category is of assistance in considering the "necessary or desirable" limb of s. 37 of the Act on the rehearing given the determination must be made on the current state of events. The application for their admission is allowed on that basis.

[54] The appellant contends that the further evidence of the text messages should be admitted as it directly supports the appellant's account of what occurred in the XX Road incident, and also because "it is compelling evidence that substantially undermines the credit of the second respondent".

[55] The considerations for the admission of this further evidence have been earlier considered herein. I am not satisfied that a miscarriage of justice will occur if the text messages are not admitted. The particular message said to be of significance, presumably from the second respondent, is an unequivocal admission that there was an occasion where she "hit" herself to the head when the appellant wouldn't get out of the car on an unknown date prior to 18 June 2021, but it is not clear at all that it was the occasion of the XX Road incident. While accepting that one wouldn't necessarily expect an exact account of the earlier incident in the context of the text messages being exchanged, and also accepting that a reference to the head may include a reference to the face, there is no reference to multiple self-inflicted blows to the head, no reference to the second respondent continuing to drive while doing so, no reference to the striking causing any bruising to the eye and no reference to point in time (other than it must be before the date of the text message) or place.

[56] His Honour's finding that the appellant's account of the XX Road incident was "absurd"[38] was not suggesting that the possibility of self-harm was absurd, but that the appellant's overall account of events, particularly including continuing to drive a manual car, while navigating a roundabout and while punching herself to the face using different hands was absurd. This is borne out by his Honour's reference to the cross-examination by the police prosecutor.[39] Even if the text message was admitted into evidence, it does not change the unbelievability of the appellant's account.

[57] While the second respondent was asked, and denied, if she was screaming and punched herself in the XX Road incident, she was not asked if she had ever hit herself in the head. The lack of precision in the question asked means the text message cannot be admitted as a prior inconsistent statement. That is not a criticism of Counsel appearing for the appellant below; she was not aware of the existence of the message, and when the appellant was challenged as to his version of events he gave no hint of a belief that a text message existed that, in his view, may have supported his account.

[58] The mere assertion that the second respondent has previously hit themselves in the head in effectively undisclosed circumstances carries no real weight in an assessment of her credit and reliability generally.

[59] There are also policy reasons which militate against the admission of the message. The appellant correctly submits that, given he was not required for cross-examination on the appeal hearing, his account of how and when he came to find the message is unchallenged. Nonetheless, the combination of the credibility concerns outlined below and the policy reasons against the admission of further evidence justify some scrutiny of the circumstances.

[60] The appellant had roughly 5 months between the filing (and presumably the timely service) of the second respondent's affidavit making the allegations concerning the XX Road incident and the first day of the hearing below. It was on that day that the second respondent was cross-examined about the XX Road incident, and when he also gave his first account of that incident in evidence-in-chief. There was roughly a further two months before the resumed hearing when his testimony concluded. The appellant testified by way of his recent affidavit that his search for text messages was hindered by a lack of access to the laptop he usually used, and hence to his iTunes account which would have allowed him to download his entire phone and search his text messages saved on the cloud in a more manageable way. As it was, he had to manually search the text messages between two since 2020. He spent about seven hours over several days doing that. He located the subject messages on 28 October 2023, 20 days after the finding that his account of the XX Road incident was absurd.

[61] Why the appellant could not log into his iTunes account from another computer is unexplained, nor why he could not perform a text search on the text messages in his phone. In any event, spending about seven hours over a total of about seven months looking for a message is not, to my mind, particularly diligent. The appellant does not suggest he had completed his search and missed the message due to the sheer volume of them. It appears that he had not looked through all messages prior to the delivery of the judgment below, but was spurred on by the deleterious finding.

[62] The appellant's written submissions on the appeal,[40] immediately after submitting that the further evidence should be admitted, refer to the fact that a Court hearing an application is not bound by the rules of evidence.[41] That submission was not orally developed, and it may be that the submission was separate to the application to adduce further evidence. If it is intended that it be linked, s. 145 is necessarily limited in its otherwise broad scope by the provisions of s. 168, according to the usual principles of statutory construction.

[63] It is trite to observe that, where possible, all provisions of an Act should be construed as to allow each work harmoniously within the context of the mischief which the legislation is designed to alleviate. If necessary, the ordinary meaning of provisions may be adjusted to give effect to that outcome.[42]

[64] Section 145 is designed to facilitate the reception of cogent material upon which findings can be made without the formality attending to strict adherence of the rules of evidence, in a jurisdiction where there is a large proportion of self-represented litigants. Section 168 represents the long-held policy considerations to adopt a just and flexible approach to the desirability of the finality of litigation while recognising that there will be occasions where a miscarriage of justice will arise if later discovered evidence is not considered on appeal. Section 168 would, on occasions, be rendered nugatory if s. 145 were understood to mean that the common law considerations as to the admission of further evidence on appeal did not apply.

[65] In my view, s. 145, in so far as it applies to the reception of additional evidence on an appeal under the Act, should be understood as being limited by the other provisions of the Act, and the rules and principles arising from them. On that basis, the principles earlier referred to as to the admission of further evidence on the appeal are applicable.

[66] It may well be that the appellant was not making the submission that I have just addressed. I acknowledge that it was he who directed my attention to the principle from HBY v WBI and Anor referred to in paragraph 18 herein. It would be inconsistent to direct my attention to that principle and to then suggest that it did not apply, without direct argument on the issue.

[67] Looking past those common law principles, which would deny admissibility, I cannot detect any other "good reason" for the admission of the proposed further evidence, and the appellant's submissions did not extend past issues of a miscarriage of justice.

[68] It follows that the third ground of appeal must fail. Therefore, the proposed further evidence does not affect the assessment of the second respondent's credit and reliability.

[69] Nonetheless, the second respondent's testimony cannot be treated as being inherently creditworthy and reliable, as it implicitly seems to have been treated by his Honour, even allowing for the advantage he had in seeing and assessing her in person. While that does not mean that her accounts should necessarily be rejected, it does mean that her accounts can be accepted to the requisite standard only after careful consideration.

[70] Although he made no express statement to this effect, it is clear that that his Honour's impression of the appellant as a witness was not favourable. He considered that the appellant's initial contact with Sgt Turgeon was "unprofessional" and that the use of the Magistrate's name was intended to influence her investigation.[43] He also found that the appellant's explanation for the XX Road incident was "absurd",[44] that his evidence that he only had access to a "bills account" for his money was inconsistent with the evidence of the transfer by him of $100,000 from an offset account[45] and that the appellant was the dominant and selfish member of the relationship.[46]

[71] A review of the record shows that those criticisms are well-founded. I accept that the name dropping occurred only after several hours of inattention to his complaint, but it evidences a willingness to apply inappropriate pressure to achieve his means. It was unnecessary; the sergeant attended the station when directly contacted and thus he had effected an expedited consideration of his complaint. As earlier noted, his Honour tended to prefer the second respondent's testimony where it was in direct conflict with the appellant's.

[72] The review of the record shows additional reasons why the appellant's testimony should be treated with caution. Unfortunately, many witnesses are non-responsive to some questions in cross-examination, and the second respondent was guilty of this on some occasions, but the extent to which the appellant was non-responsive suggests that it was deliberate.

[73] He also had a distinct tendency to answer in a selective way which tended to promote his case, but which did not give a full account of the relevant event. For example, in cross-examination he asserted that the second respondent had been informed by his solicitors in advance that he would be withdrawing the $100,000 that he withdrew from an offset account on 20 September 2023. When he was reminded that the letter concerning that was sent the day after the withdrawal, he maintained that a letter had earlier been sent.[47] The letter sent the next day is drafted in terms that do not refer to any earlier correspondence.[48] The only correspondence in evidence that the appellant could be referring to is a letter dated 31 August 2023,[49] which refers to a proposal, not a stated intention, that each party withdraw a lesser amount, namely $50,000, for legal expenses and the like. There is no suggestion the proposal was agreed to. The removal of the funds, which it should be noted left a considerable balance available to the second respondent, was not the subject of a specific complaint, but was relied on to demonstrate the domineering nature of the appellant. The less than satisfactory explanation given by him does not reflect well on his credibility and reliability.

[74] In another example, the appellant filed an affidavit attesting to the second respondent stealing, amongst other things, the property of Ms A, variously referred to as a cardigan or jumper. He had earlier sent the second respondent a text message indicating that it was not owned by Ms A, but was that of another female,[50] but he did not refer to that in that, or any other, affidavit. Under cross examination, he eventually accepted there was an inconsistency as to ownership in his affidavit, but justified it by saying he had sent the text to stop the second respondent from harassing and talking about Ms A. He further justified not telling the whole account in his affidavit by saying the investigating police had the text message anyway. He denied that he had not been forthright in his affidavit material about this issue, even though he clearly had not been.[51] In any event, he admitted to deliberately lying to achieve his own purposes.

[75] In another example, in his account of events of 15 September 2023 he maintained that the second respondent was swearing and was abusive. Exhibit 17 is a recording of the interaction. Although the appellant put its completeness into issue, having listened to it I am satisfied that it captures the period immediately prior to the second respondent entering the premises and all relevant interactions.

[76] It puts events into a different context. The second respondent is clearly upset that the appellant had lied to her about having ceased contact with Ms A, who was there at the time. While she uses some less than complimentary descriptions of both of them while her voice is raised a little, she does not yell and does not swear. The recorded version, which I accept as accurate, cannot stand with the version given by the appellant. This is also the incident where there is a suggestion that the account of the alleged assault on Ms A has been fabricated. I deal with that later.

[77] Overall, I am satisfied that the evidence of the appellant must be approached with considerable circumspection before it can be accepted.

[78] Submissions were made below that the police investigation of the appellant's complaint was infected by bias. While it can be accepted there were some unfortunate aspects to the conduct of the investigation, they were not able to be controlled by Sgt. Turgeon and I am not satisfied of the asserted bias, for the reasons outlined by his Honour.

[79] On appeal, it was in essence submitted that the evidence given as to why the sergeant concluded that the second respondent was the person most in need of protection was irrelevant to the decision the Court had to make. It is sufficient to note that the officer's views can carry little, if any, weight.

[80] It was not submitted that the credibility and reliability of the testimony of the second respondent's mother and of the lady who lived next door to the investment property ("the neighbour") was in doubt, and I cannot detect any reason to find to doubt their evidence.

Findings on the re-hearing concerning the subject incidents.

[81] Given the findings already made, and of some to be made, it is convenient to deal with the subject incidents other than in the roughly chronological order in which they were earlier listed.

The incident on 15 September 2023 at the investment property.

[82] On this night, the second respondent attended the investment property. She and the appellant had engaged in sexual relations on one or more occasion relatively recently. According to the second respondent, the appellant had told her that he had ceased contact with Ms A. The second respondent decided that she would go to the premises, she says, in an effort to, in effect, spice up their sex life in an attempt to repair their relationship. She had sent text messages telling the appellant she would come over later that night, and he consistently told her not to. She persisted.

[83] I accept that on her arrival at the investment property the second respondent saw Ms A's car and realised she was there. That seems to have been the catalyst for her activating a recorder, which on listening to it clearly was activated prior to or as she is walking to the residence. As earlier observed, the second respondent was clearly upset. The entire recording lasts about 1 minute 21 seconds, and interaction in the premises is a little less than that.

[84] There does not seem to be any dispute that she was wearing a bomber jacket at the time, which Ms. A describes as being "thick". She was told on a number of occasions to leave the premises by the appellant, but she did not immediately do so. In her affidavit, Ms A asserts that the second respondent was yelling in her face, and had adopted an "aggressive stance". She makes no mention of the appellant touching the second respondent in any way, and she asserts that she was present for all "close personal interactions" between the appellant and the second respondent. Cross-examination revealed that was not the case.

[85] The appellant's account is that he placed an arm between the second respondent and Ms A and guided her out of the house. He denies that any force was used.

[86] The second respondent asserts that the appellant grabbed her by the left upper arm; "he grabbed me hard". Sgt Turgeon observed a bruise on the second respondent's left upper arm during the interview in the afternoon of 19 September 2023. In my view, the existence of that bruise is supportive of the second respondent's account, and the fact that she was bruised through a thick bomber jacket evidences that force was used.

[87] Ms A's affidavit, tendered as evidence-in-chief, makes no mention of having been assaulted by the second respondent. Neither does the appellant's affidavit dated 26 September 2023, and neither does it suggest that the second respondent was up close to Ms A's face. However, in his affidavit dated 22 November 2023, he stated that the second respondent had assaulted Ms A, but gave no particulars of it. In cross-examination it was revealed that he did not see any assault, but had been told about it by Ms. A; a factor not made clear in his affidavit, and another example of the appellant seeking to promote his own case without paying full attention to all the facts.

[88] In the course of their respective testimonies on 8 July 2024, the appellant and Ms A, in cross-examination, each spoke of Ms A being assaulted by spittle from the second respondent landing on her face. When put to Ms A that she was not assaulted, she said she was "a little bit undecided about it" and that feeling spittle on the face is "kind of assault". She said that she didn't mention it earlier because she felt like she deserved it. Unsurprisingly, the allegation was not put to the second respondent, given the allegation was not revealed until after her cross-examination had concluded.

[89] The appellant's case on this complaint was put on the basis of the spittle landing on Ms A's face being an assault. His Honour was not satisfied that had occurred. It is now argued that it should also have been considered on the basis of an assault having been committed under the second limb of s. 245 of the Criminal Code, and of the justification provided for the appellant's assault, if one is found to have occurred, by s. 277 of the Criminal Code.

[90] It is convenient to now make an observation about the course of submissions. The appellant and the second respondent agreed that an act could not amount to an act of domestic violence unless, allowing for the different standard of proof, it would also be illegal. There is a different view held by some.[52] I have proceeded on the assumption, without deciding, that the joint position of those parties is correct in all instances where a "defence" is said to arise on the facts.

[91] I too am not satisfied that there was an assault by way of spittle landing on Ms A's face. While I accept that there can be many reasons for a reluctance to reveal conduct, it is concerning that the details of the spittle were raised for the first time in cross-examination, and in circumstances where Ms. A and the appellant had clearly been discussing the allegation beforehand. If the real reason for not raising it initially was as Ms A testified, I cannot detect a logical reason to now volunteer the information, other than an apparent attempt to ambush the second respondent at the hearing.

[92] If I am wrong about that, it is notable that it was not suggested that the spitting involved the deliberate gathering of fluid in the mouth and a deliberate ejection of it at Ms A. The description is that it was an incident of the second respondent being close to her face and yelling at her. In circumstances where the second respondent weas not afforded an opportunity to give her account, I am not prepared to find that that the excuse under either ss 23(1)(a) or (b) of the Criminal Code has been negatived by the appellant. In either instance, it has not been established to my satisfaction that the second respondent unlawfully assaulted Ms A.

[93] Further, the appellant should not now be permitted to raise an argument concerning the second limb of s. 245. It was not argued below and it is not difficult to see why a rationale forensic decision might have been made to not rely on it. There is no suggestion that the second respondent attempted to apply physical force to Ms A. Reliance must be placed on the combination of the second respondent adopting what is described as an aggressive stance, whatever that may mean, and what she said amounting to a threat to apply force to Ms A. While exhibit 17 evidences that the second respondent was not complimentary of Ms A, it does not contain any threats. I am not satisfied that the allegation is made out.

[94] His Honour was satisfied that the appellant caused the second respondent personal injury by grabbing her on the left upper arm and causing a bruise,[53] thereby amounting to having done domestic violence. I agree.

[95] There is support for the second respondent's account in the fact of the bruise, which is fundamentally inconsistent with the appellant's account. I have earlier referred to the significance that the bruising was caused through the thick bomber jacket. While Ms A asserted in effect that the appellant did not assault the second respondent, it was established in cross-examination that she did not personally see all of their interactions. Further, the assessment of her credit and reliability must take into account the late disclosure of the spitting allegation.

[96] The appellant now contends that this conduct, if it was found to have occurred, should have been assessed through the prism of the justification found at s. 277 of the Criminal Code. This also was not pressed below, and one can well understand why. The appellant's unequivocal account was that he did not cause that injury. Counsel could legitimately have considered it unattractive to pursue an argument that the appellant did not cause the bruising, but if he did it was justified in the circumstances. To do so may well serve to undermine the assessment of the appellant's testimony. The appellant should not now be allowed to pursue this argument once he is aware that he has not been believed. If to be relied on, it should have been raised below.

[97] For that reason, I would not entertain the submission but, if I am wrong about that, it would not change my conclusion in any event.

[98] The second respondent was a part owner of the investment property. She therefore had a right to enter onto the property and thus was not wrongfully entering for the purposes of s. 277(1).

[99] Although not expressly clarified, the appellant's argument must therefore rely on s. 277(2). That provision justifies the use of force where a person conducts themselves in a disorderly manner, which I accept the second respondent did. However, the justification comes with two separate caveats; the use of "the force that is reasonably necessary in order to remove" the person, and that grievous bodily harm not be caused. The last-mentioned caveat does not arise.

[100] I am comfortably satisfied that s. 277(2) does not justify the force used. The second respondent, as can be heard in exhibit 17, was upset and had raised her voice, but she was not out of control and there is no suggestion that she was physically difficult to control. I am satisfied that the use of force sufficient to cause bruising through the thick bomber jacket was more that was reasonably necessary to remove her from the investment property.

[101] It follows that I do not accept that the second respondent assaulted Ms A on this occasion, but I am satisfied that the appellant inflicted domestic violence on the second respondent.

The damage to the investment property on 18 September 2023.

[102] There is no doubt that E, and possibly one or more of his siblings, caused damage to the residence this day. The issue is whether the appellant has proven to the requisite standard that the second respondent was in some way responsible for any of that damage.[54]

[103] As a preliminary point, there is a suggestion in the evidence, and in the submissions below, that the damage may have been occasioned as part of a family tradition when a house was to be demolished or renovated and that, prior to the separation the appellant had given the children permission to do that. That is, it was being suggested that any damage was done with the appellant's consent.

[104] Much of the debate about this centred around communications by the appellant to the second respondent to the effect that he no longer wished to proceed with the rebuild of the investment property, and an email sent at 10.45 am on 18 September 2023 to that effect. I accept that the second respondent had likely left the primary residence by that time to travel to the investment property, and was unlikely to have received it. There was also contention as to whether that meant that he also no longer agreed to the demolition of the residence on the investment property.

[105] All of that debate was unnecessary. There was in evidence, attached to the second respondent's affidavit dated 30 October 2023, a copy of a text message chain between her and the appellant, dated 22 August 2023, in which the appellant stated "They're not demo'ing. I live here. This is my house. All be it (sic) sparse but it's all I have.". There is nothing to suggest that the appellant had changed his position, and references to not consenting to the rebuild must be seen in light of it. Unfortunately, this message was not brought to his Honour's attention. Any suggestion of consent to the damage is therefore unsustainable. Whether anyone other than the second respondent had an honest and reasonable belief as to consent is a matter that I need not consider here.

[106] I accept that the second respondent's account of the events of this day is improbable in a number of respects. In cross-examination, she maintained her estimate that she and the children were at the premises for about 7-10 minutes. I accept that this, and all time estimates in this incident, are necessarily approximate, but nonetheless she maintained that she and the children were at the investment property for a short period of time. All the children travelled there with her. The extent of the damage means it is unlikely to have been caused in such a restricted time frame. Although the second respondent asserted that E told her he had returned to the property in the ute after she returned to the primary residence from the café with the other children, I consider that unlikely. The unstated suggestion was that E could have caused more damage after she had left the property. E was not called to testify to provide direct evidence of any return to the property after lunch. The proximity of the neighbour's residence to the property means she would have been likely to have been aware of any vehicle returning but, in any event, it is very unlikely she would not have been alerted by the noise of further damage, even if she did not see the vehicle.

[107] Further, the second respondent agreed, after being referred to toll road records,[55] that she would have arrived at the investment property around 10.45 am. The neighbour said she arrived home around 11.30 am and heard the noise and spoke with E and the second respondent. There is no reason to doubt the testimony of the neighbour. Even allowing for some looseness in the times, the limited time that the second respondent said she and the children were at the property seems unlikely.

[108] It appeared from toll road records that the second respondent's vehicle returned home through the nearest toll gate at 12.30 pm, however little can be deduced from that given the inattention in cross-examination to the driving time or distance from the café where lunch was eaten to the toll point. It would however suggest that lunch, if eaten at all, was hastily consumed.

[109] The appellant submits that criminal responsibility should be inferred, applying Briginshaw principles, given the improbability of that account. While I accept that the circumstances are very suspicious, I am not satisfied that it has been established that the second respondent was criminally involved, even on the non-criminal standard.

[110] The rejection of the second respondent's account does not of itself mean that guilt has been established, unless it is shown that the rejected account was given out of a consciousness of guilt. There is, in my view, a reasonable hypothesis open as to why a false account was given that does not inculpate the second respondent, namely protection of E and/or any of the other children who she knew were directly involved in causing the damage.

[111] The appellant accepted that E did not like him, at least by this date. That may be an understatement, based on other evidence. For example, E instructed a former girlfriend not to inform the appellant of the date and place of his graduation. In any event, there was animosity held by E towards him.

[112] On the second respondent's account, there was no intention to enter the premises that day, but E did, and he armed himself with an axe that was kept at that property and used it to damage the premises. Even on her account, E went off on his own destructive folly. It is not unrealistic to think that he did all the damage within the longer period established by the timelines set out above, with or without the help of any or all of his younger siblings. The damage did not have any unique aspect that meant only the second respondent could have caused part or all of it.

[113] I accept the version of the conversation as recalled by the neighbour with the second respondent, while E and Y were present. I do not accept that it was a word-perfect account, but I accept the general tenor of it. That account is not inconsistent with her lying to protect her child or children.

[114] Further, the appellant himself told Sgt Turgeon that he could not be sure if the damage was done by his wife or E. While that is not determinative of itself, it shows that even the appellant himself recognised the reasonableness of such a scenario.

[115] It is suspicious that the second respondent was present for what must have been a longer period than she speaks of, and when she was likely to have heard at least some of the commotion. However, mere presence is not sufficient to prove guilt under the party provisions of the Criminal Code,[56] it cannot be established on any standard of proof when she became aware of the damage being caused and there is no evidence of her direct involvement in the causation of the damage.

[116] The appellant has failed to satisfy me to the requisite standard that the conduct of the second respondent that day amounts to domestic violence.

[117] Once the timestamps on the photos were clarified, resulting in the tender of exhibit 15, it was not suggested that the second respondent had not suffered the bruising injury to the eye on that date. However, the appellant maintained he had not inflicted it. According to the second respondent's mother's affidavit, the second respondent told her the injury happened when she was playing with her children. She was not cross-examined on that topic. The second respondent did not recall giving her mother any excuse for the injury, but she did accept that she told the appellant in August 2023 that C had been punching her. She said in testimony it was to the body, not the face.[57]

[118] The appellant also suggested in his testimony that the injury seen in those photographs was "extremely similar" to the circle pattern resulting from the XX Road incident. He confirmed that he was suggesting that there was a conspiracy and that the second respondent was "continually punching herself to the face".[58] To the layman's eyes, there is nothing distinctive about the black eye shown in exhibit 15. In my view, the appellant's suggestion can be dismissed as speculative nonsense. Understandably, it was not pressed in submissions below, nor on appeal.

[119] Bearing in mind the competing considerations as to the respective credit and reliability issues, I am satisfied to the required standard that the appellant inflicted that injury. The photographs provide some support for the account of the second respondent, and I consider it unlikely that she would go to the trouble of photographing the changes in the appearance of the injury over ensuing days if caused accidentally by C. On the other hand, that is likely if it occurred at the hands of her husband, albeit in times of stress and difficulty in the marriage.

[120] There is support for the second respondent's account of suffering a bruised eye in this incident. It comes from the appellant himself. It can be accepted that something happened to cause it. What remains in issue is whether it has been proven that the appellant caused it.

[121] Interestingly, the second respondent asserts that the subject argument arose out of the fact of an extra-marital affair the appellant was engaging in at the time. The appellant testified that had finished some 12 months prior. I need not resolve that dispute.

[122] There are two competing direct accounts of how it was occasioned. The appellant's account is, to say the least, highly improbable, while the second respondent's account is well open to acceptance, even bearing in mind the credit and reliability matters noted earlier.

[123] Bearing in mind the appropriate standard of proof, I am satisfied that the appellant inflicted domestic violence on the second respondent on this occasion.

The incident in Roma in 2012 or 2013 and the incident in Grange Road in 2016.

[124] Each of these allegations are, in effect, bare allegations of a strike to the face by the appellant. There is little other detail given of either incident, and there is no independent support for the second respondent's allegations.

[125] His Honour in effect found that they had occurred due to his favourable impression of the second respondent as a witness, and because he was satisfied that the appellant had "a propensity to strike (the second respondent) in the face when challenged", based on his earlier findings that the appellant had on two separate occasions[59] struck the second respondent to the head during arguments.[60]

[126] I do not agree that a propensity, in the relevant sense, has been established. Without diminishing the seriousness of what I have found that the appellant has done, there are only a few instances which his Honour relied on, and they were spread over a number of years. It is not a continuing course of conduct. The time between the incidents is a relevant feature in determining if a tendency has in fact been proven.[61]

[127] Secondly, the second respondent asserts that the first of these incidents occurred in the course of a panic attack. That is an entirely different scenario to being struck in the course of an argument. It cannot establish the tendency that his Honour found had been established.

[128] Thirdly, there is no detail at all about what the argument in the latter incident was about. This detail is, in the present circumstances, necessary before a relevant propensity could be used as supportive of the second respondent's account.

[129] Given the issues of credit and reliability earlier identified, and given the lack of supportive evidence for her account, the second respondent has failed to satisfy me that the appellant committed domestic violence on either of these occasions.

The second respondent deprived the appellant of access to a motor vehicle.

[130] This vehicle was the utility that was driven from the investment property by E on 18 September 2023. It appears to have been one of two vehicles the family used prior to separation. The second respondent's stated purpose for taking the vehicle was to dispose of a washing machine, and so was intended to be for a limited period only. However, it was not returned until early December 2023. The appellant indicated in cross-examination his belief that E was using the vehicle after it was taken to go to and from school. While I fully accept it was inconvenient, it does not appear that the appellant was truly left stranded by the lack of access to the vehicle, regardless of what he asserts. He had made at least one request of the second respondent for the return of the vehicle.

[131] His Honour observed that "property issues" are not unusual in matters where parties have separated, and also found that the conduct, even if done deliberately, did not meet the threshold so as to amount to emotional, psychological or economic abuse in the context of this matter. I do not agree in respect of proof of emotional or psychological abuse.

[132] I accept that the second respondent had deliberately withheld the vehicle from the appellant, perhaps to allow E to drive to and from school. The fact she was a part owner of the vehicle is not to the point. It was intended to be borrowed for a specific and limited purpose only, and it is simply too convenient that it was returned after adverse remarks by his Honour in a pre-hearing mention to be a coincidence. There is insufficient evidence to satisfy the "threshold" for emotional abuse in s. 12 of the Act, but the same cannot be said for proof of emotional or psychological abuse in s. 11. That section sets a low "threshold", and the subject deliberate conduct at least amounts to behaviour that is offensive to the appellant.

[133] In my view, the provision itself must be the basis for an assessment of whether the conduct in fact amounts to domestic violence, or not. It is not open to impose an arbitrary threshold, determined according to the views of the presiding judicial officer. The degree of culpability reflected by that conduct is not a relevant consideration under s. 37(1)(b). It will however be very relevant in determining whether the making of a Protection Order is necessary or desirable under s. 37(1)(c), whether the exercise of the general discretion under s. 37 should be exercised and as to the assessment under s. 22A.

[134] In the present circumstances, the behaviour of withholding access to the vehicle was clearly directed to the appellant and, I accept, he found it offensive. I find that this conduct amounts to domestic violence committed by the second respondent against the appellant.

The second respondent stealing items from the investment property.

[135] The items the subject of this allegation were batteries and cycling equipment said to be owned by the appellant, and a jumper or cardigan said to be owned by Ms. A. Some of the evidence touching on the latter item has been outlined earlier herein.

[136] The evidence concerning the items allegedly owned by the appellant is vague and imprecise. The second respondent denies taking these items. Given the credit and reliability issues outlined earlier, and bearing in mind the appropriate standard of proof, the appellant has failed to satisfy that the second respondent stole them.

[137] The second respondent admitted removing the jumper from the investment property, in circumstances where, she says, Y pointed it out to her. She knew it wasn't hers, but took it anyway. Therefore, who owned it doesn't matter. The fact she offered to, and presumably did, return it goes to the level of culpability, not the inherent nature of the act.

[138] I find that it was behaviour directed towards the appellant, being the removal of property from the premises he was residing in, given the context of the dynamics at the time. As such, I accept it amounts to emotional or psychological abuse in that it was behaviour directed towards the appellant which was offensive to him.

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