District Court New South Wales Medium Neutral Citation: Wright v R (No. 2) [2021] NSWDC 766 Hearing dates: 24 September 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: The AVO made by the Local Court at Muswellbrook on 22 March 2021 is set aside. Catchwords: CRIME – APPEAL against making of AVO – Whether domestic violence offence(s) proved on balance of probabilities. Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Texts Cited: Nil Category: Principal judgment Parties: R - Crown Appellant – Joseph Peter Wright Representation: Crown Laird, D. Appellant McGiff, P. File Number(s): 2019/00401558 Publication restriction: Nil Judgment 1. HIS HONOUR: On 22 March 2021 Magistrate Donnelly, while sitting at the Local Court at Muswellbrook, after passing sentence upon the appellant, made a final order Apprehended Violence Order ("AVO"), including conditions 1, 4, 6, 9 and 10. 2. Condition 4 required the appellant not to approach or be in company with either his former wife or any of his children, the fruit of his former marriage, for at least 12 hours after drinking alcohol or taking illicit drugs. 3. Condition 6 required the appellant not to approach his former wife or the children of their marriage, or contact them in any way unless the contact was through a lawyer, to attend an accredited or court approved counselling mediation and/or conciliation or as ordered by the Local Court or another court about contact with the children, or as agreed in writing between the appellant and the complainant about contact with the children. 4. Condition 9 forbad the appellant to go within 50 metres of any place where his former wife, or his children by his marriage to her, resided or worked, or the former matrimonial home in Paxton Street, Denman. 5. At the time that the orders were made the Local Court was told that the complainant was then residing in the Northern Territory. The instructions given by the appellant to his solicitor are that the complainant is still residing in the Northern Territory and that the three children of their marriage are with her. The appellant instructs his solicitor that he has had no contact with his children for two years. That is highly to be regretted. The appellant would be well advised to make an urgent application to the Federal Circuit and Family Court seeking an order permitting contact with his children. 6. I hazard the observation that, given the domestic circumstances of the appellant and the complainant prior to 20 December 2019, the children may have been more closely bonded to the appellant than they were to the complainant, their mother, because in essence the appellant was a stay at home "house husband", having the day to day care of his children whilst his wife attended to any one of her three occupations. 7. The fact that I have set aside the convictions for what could be described as domestic violence offences required proof beyond reasonable doubt, but the making of the AVO only required proof on the balance of probabilities. 8. Having read what I have read and considered the facts and the matters closely, I have formed the view that the evidence of the appellant was more plausible than that of the complainant. The complainant also had, it would appear, an animus against he appellant because she would have known the presence of the ammunition in the house, she certainly knew where the crossbow and where the marijuana plants were growing, and she led the police to the crossbow and the marijuana plants, indicating that she well knew that they existed prior to 20 December 2019 but did nothing to alert the police to their existence at any time before the interaction on 20 December 2019, after the appellant posted the entry on Denman community Facebook page which led to the upset between the appellant and the complainant, to put it in rather neutral terms. 9. However to be persuaded that the AVO should remain in place I had to be persuaded on the balance of probabilities that there was some episode of domestic violence. 10. Bearing in mind the provisions of s 140(2) of the Evidence Act 1995, encapsulating as it does the common law principles propounded in Briginshaw v Briginshaw (1938) 60 CLR 336, I am not persuaded on the balance of probabilities that there was the domestic violence practised upon the complainant as she deposed to in her evidence. For those reasons the AVO made by the Local Court at Muswellbrook on 22 March 2021 is set aside. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2022