Farthing v Phipps [2010] NSWDC 317

New South Wales District Court

CITATION: Farthing v Phipps [2010] NSWDC 317

HEARING DATE(S): 18 October 2010

JUDGMENT DATE: 18 October 2010

JURISDICTION: Criminal

JUDGMENT OF: Lakatos SC DCJ

DECISION: Appeal allowed; Orders of Magistrate quashed

CATCHWORDS: CRIMINAL LAW - Appeal against Apprehended Violence Order - MENTAL HEALTH - Utility of order made against mentally ill person - Capacity to understand terms of order

LEGISLATION CITED: Crimes (Domestic and Personal Violence) Act 2007

CASES CITED: R v Presser [1958] VR 45 John Fairfax Publications Pty Limited v The Ryde Local Court (2005) 62 NSWLR 512

PARTIES: B Farthing K Phipps

FILE NUMBER(S): 2010/47914

COUNSEL: M J Ierace SC P R Coady

JUDGMENT

1 HIS HONOUR: On 7 June 2010 the learned Local Court Magistrate, Mr Cheetham, made an order at the Manly Local Court pursuant to s 16 of the Crimes (Domestic and Personal Violence) Act 2007 directed towards the appellant Ms Phipps. The person in need of protection was Mr Farthing. The appellant has appealed to this Court against the making of the order.

2 I have read the short transcript of the Local Court hearing and also an extensive number of exhibits which were tendered before his Honour. There was a measure of common ground, in fact a great measure of common ground between the parties in the present appeal. Both Ms Phipps, the appellant, and Mr Farthing, the person in need of protection, are handicapped persons. Both of them in 2005 or thereabouts, were thrown together in a common accommodation situation, notwithstanding apparently some serious concerns, which were expressed by those persons who knew both of them, about the compatibility of the living arrangement. In that respect it is regrettable about how this turned out, because it appears that the parties were put together not through their own choice but by, no doubt, well meaning persons but apparently not well informed ones concerning potential problems which were to arise. Indeed, the problems did arise and they resulted in, if I can put it neutrally, the abuse and assault by Ms Phipps upon her housemate, Mr Farthing. That apparently was not a one off situation. It appears that there had been some considerable problems prior to that, all of which stem not from any malicious intent by either person involved it appears, but by a function of their psychological makeup.