A day after returning from an interstate holiday with his son and elderly mother, our client was served with a interim FVRO and was evicted from the family home. He spent 10 days without access to his, and his mother’s, personal belongings, including vital heart medication. When police eventually secured the co-operation of the protected party to facilitate access to the home, the situation was so rushed and time restricted to 30 minute limit, that his mother forgot to collect her heart medication.
Our client decided to collect the medication when he expected the protected person to be at work and not at the home. Our client drove down the driveway, stopped some distance and used a remote to open the garage door. On seeing a car parked in the garage, he reversed and drove away. He was subsequently charged with breaching the terms of the FVRO by allegedly transgressing within 10m of the external boundary of the home.
At his trial, our client disputed his vehicle travelled inside the 10m restriction and that he could see the parked car in the garage from where his car was positioned in the driveway. The prosecution did not present any evidence to contradict our client’s testimony. Whilst the trial Magistrate considered our client’s evidence to be honest and reliable, she employed her own estimation of distance to find our client guilty of the charge. A fine of $100 was imposed for the offence.
We successfully appealed and the conviction was quashed. Whilst we were permitted to introduce forensic evidence which proved the distance between our client’s vehicle and the external boundary was 14 metres, the appeal succeeded because the appeal Justice considered that it had not been appropriate for the trial magistrate to rely upon her own estimation of distance in assisting to determine whether the manner in which the order was allegedly breached had been proven beyond reasonable doubt.
A significant cost award was made in favour of our client for both the trial and the appeal.
