Comment to 'Appeal of a 18 year Family Violence Intervention Order.'
  • Cameron McKenzie Whilst appeals focus on errors of law and act in a supervisory capacity, clearly the discretion of the judge is wide.
    Fundamentally, there does appear to be the obvious problem with taking an order without admission where the evidence remains untested and no finding on the evidence is ever made. Concerns exist that in absence of any tested evidentiary foundation, on what basis can the appeal court increase the sanction? The appeal court appeared to make findings and the drawing of inferences in the absence of evidence, which is an error of law: Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321, citing Sinclair v. Maryborough Mining Warden (1975) 132 CLR 473.
    So the point remains, when does taking without admission, suddenly result in all allegations being proved? If the evidence was that strong the prosecution could have sought the mater to be tried thus affording the defendant to test the evidence. Clearly the appellant angered the court and was punished.
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