Peter Vincent Princi v Jeanette Hanlon Princi Sca [1991] ACTSC 115 (17 December 1991)

SUPREME COURT OF THE ACT

PETER VINCENT PRINCI v. JEANETTE HANLON PRINCI
S.C.A. No. 61 of 1991
Appeal from the Magistrates Court - Taped Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Appeal from the Magistrates Court - Protection Order - Insufficient evidence - Necessary conduct - Whether applicant in fear of safety - Reasonableness of belief - Witness' evidence - Evidentiary weight of demeanor.

Taped Evidence - Admissibility of Technical report - Lack of stated qualifications - Whether lack of cross-examination reason for rejection.

Domestic Violence Act 1986 (ACT)

Crimes Act 1900 (ACT)

"Oral v Written Evidence: The Myth of the "Impressive Witness" - Loretta Re (1983) 57 ALJ 679

HEARING

CANBERRA
17:12:1991

Counsel for the Appellant: Mr G. Brzostowski

Instructing solicitors: Messrs Farrar and Gralton

Counsel for the Respondent: Mr I. Nash

Instructing solicitors: Legal Aid Office (Ms J. Harrison)

ORDER

The appeal be upheld.

The order made on 11 April 1991 in the Magistrates Court be set aside.

The application for a protection order be dismissed.

DECISION

This is an appeal from a decision of Magistrate Nicholl, made on 11 April 1991, to issue a protection order pursuant to the Domestic Violence Act 1986 (ACT) (DVA).

2. The original application was made on 12 February 1991. It relied on two particular incidents, one on or about 24 January 1991 (it seems to have been 22 January) and the other on 10 February 1991.

3. It is relevant to note that throughout that period of time, indeed since 4 December 1990, the appellant and respondent, who are married to each other but separated, had been in dispute about access to children and property. The complaints concern the alleged behaviour of the appellant when returning the children of the marriage to the respondent at her residence following access.

4. There was a general complaint about the appellant "harassing" and "intimidating" the respondent and behaving in "an aggressive and threatening manner" towards her. However, the case she presented relied on the two incidents referred to above, particularly the latter of the two.
Incident on 22 January 1991 -

5. The respondent alleged that this incident happened as follows:-
(T.27/2/91; p 5) "(The appellant) was standing on my right

hand side as I was carrying stuff, I was trying to get to the
back gate. He put one arm in front of me and I am up against
a gate then he put the other arm in front of me and continued
to talk on and on, what he was discussing at the time. I
repeatedly say, "Let me go I want to get in my back gate,
will you please leave me and let me go, will you just go?"
He refused to go...He made no actions to let me get through
the gate...Then my father came outside and Peter
automatically dropped his hands...walked straight over to my
father...my father repeatedly asked him to go again and
again, it was 10 minutes later before he finally left."

The respondent's father (Mr William McVie) supported that account. He said -

(T.4/4/91; p 3) "Peter had my daughter against the fence,
hands on both sides of her and he was almost screaming at
her, verbal abuse..."
He was asked (4) "Did you hear the (appellant) say anything
specific? - - - Mainly that everything wasn't fair. He
wasn't being treated properly. It was mainly, "I'm getting
wrong by". He was doing all the screaming. He had her
pinned against the wall."

6. He did concede, in cross-examination, that the respondent had been doing "some shouting". He said she had said, "Let me go".

7. Brenda Cotter, the respondent's sister, said she was present in the house when that incident took place. Her account was similar to her father and her sister.

8. At no stage was it alleged that the appellant applied or threatened any physical action other than temporary restraint. He may have shouted, he may have insisted on being listened to when he had no right to but there was nothing in this allegation which would have been justification for a fear that the appellant would inflict physical violence on the respondent. The allegation is, basically, of harassment.

9. In his sworn evidence, the appellant denied that allegation but admitted that, for whatever reason, the respondent's father had emerged and told him to leave.

10. The learned Magistrate, if that had remained the state of the evidence, would have been entitled to prefer the testimony of the respondent. He did so.
Incident of 10 February 1991 -

11. On 9 February 1991, the appellant collected his children for access. He arranged with the respondent to discuss with her a list of items of property of which he wished to be given possession. He suggested that discussion take place after he returned the children on 10 February. The respondent agreed.

12. The respondent says that on return of the children, the appellant then insisted on discussing his list. She told him to give it to her but he wanted to read it through to her "insisting that I agree or disagree to every item that was on the list".

13. She said -

(T.27/2/91; p 5) "I continually said, "Just hand me the list, I
will read it later". He continued to go through and through it."

At that point, she said, there was a refusal by him to give her the list. She sought to break off the discussion then saying -

"OK, well why are we discussing it? My solicitor is going to get
it. I will read it, I will hear about it then." I took two steps
back...he grabbed my arm...my sister...said, "Peter, just let her
go, leave her alone, the solicitors will sort this out, there is no
need for this".

14. She alleged that before she walked away -

"He was pointing at me and banging on my chest that I must
agree or I must not agree."

Brenda Cotter then, she said, walked in between them to separate them.

"He then still holding my arm pushed me to the side in towards the
tree and then started flexing his chest and sticking his chest into
my sister and telling her that she has no right to threaten him, he
is going to fix her, he is going to fix her good, he is going to fix
my whole family, they will never to allowed around me, he will make
sure that it is sorted...He pushed my sister with his chest about
two or three times and then he shoved her with his hand...I
repeatedly asked him to leave."

15. She says that then the appellant's mother -

"...was screaming at me, "Come over here Jeanette, you have
got to do everything that he says."...He would never stop
harassing me or annoying me until he got everything that he
wanted...He then started again, "You cannot tell me what to
do."...and the whole time he was doing this he was banging on
the bonnet of the car."

There is no allegation, however, of any other misconduct on the part of the appellant.

16. The respondent was then asked -

(T.27/2/91; p 11) MS LUMSDEN - "Can you tell the Court how you
feel when you are in the respondent's presence? - - - Intimidated,
frightened, he continually makes me feel as if I am obligated to do
whatever it is that he says that I have to do."

Again, it is clear that the respondent does not, whether justifiably or not, claim any fear that the appellant will engage in physical violence towards her. The "fix you" allegation, contrary to the assertion in her application, is directed towards the sister and, it seems, preventing her and the respondent's family from interfering in the discussions (or arguments) between the appellant and the respondent. The respondent's complaint is of the moral pressure induced by the appellant's demands. There is a complaint of what she perceived as an intimidatory and aggressive manner.

17. In cross-examination, notwithstanding the statement that the appellant had grabbed her wrist and was "banging" on her chest, she agreed that he had made no physical contact with her. She simply denied that "no physical contact" was inconsistent with her previous statements (T.27/2/91; p 50). She also resiled from her statement that he spoke aggressively to her. She said, in fact, the appellant was "unusually calm" but "his body language was still aggressive, as usual".

18. The only other evidence relevant to 10 February 1991, from the respondent's side, came from her sister Brenda Cotter. She gave evidence on 4 April 1991. Her account was -

(T.4/4/91; p 17) "...Peter had grabbed her arm and was
gesturing...I said "Come on Jeanette." I sort of put my hand
between them..."You don't have to listen to this, this isn't
right." And I told Peter that this wasn't right and it just
wasn't fair and I'd have to call the police if this kept up.
And then Peter was saying that I was harassing Jeanette. He
wasn't hurting or harassing Jeanette and that it was all my
doing, not his, and at the same time still prompting (sic) at
Jeanette that she should listen to these things on the list
and then he pushed Jeanette to (his) right hand side...Peter
was moving forward to me and telling me that this just wasn't
right, that I had to stop harassing Jeanette, leaving them
alone, and it was a gesturing forward and a poking and with
his chest pushed right out...I moved about three steps back
and he was saying that he would fix me, I can't go near
Jeanette, he'll fix the lot of us..."
(18) (HIS WORSHIP) "I will stop you from going near
Jeanette"? - - - Yes. And that's when he gave a final, like
a chest push on my shoulders with his hands."

19. After that she said -

"I remember Peter saying, "What was that you called me? What
was that?...(and he was) thumping, bashing, banging on the
top of the car. "What did you call me?"

The small daughter of the parties then apparently got upset. The appellant calmed the little girl down by saying Brenda, Mummy and Daddy were all all right.

20. The statement, about "fixing" her, became a little more uncertain when she was asked a further question by Ms Lumsden -

(18) "And can you remember whether he said anything when he
was banging on the car" Whether Mr Princi said anything? - - -
Well, he had said, "What was that you called me?", and it
was then that he was saying that still - that he would fix
the lot of us, fix Jeanette, fix the lot of us."

That latter statement was quite at variance with her earlier evidence and was not supported by the respondent's version of that statement.

21. She further alleged that as he was backing the car out, the appellant wound down his window and said, presumably sarcastically, "Oh Brenda, Oh Brenda...Have a great day, love you babe."

22. The appellant disputed this version of the event. He was surreptitiously audio-taping the incident. He denied that he had said anything about fixing anyone.

23. His sister, Louise Mansour, who was in or near the appellant's car, said there was no threat made by the appellant. There was no physical contact with the respondent or her sister. The respondent did not ask him to leave. She observed no banging on the car roof (or bonnet). She heard no noise consistent with such an action.

24. The Magistrate said he was not impressed with this witness' demeanour.

25. His Worship does not indicate which of the versions given he accepts where the respondent and her sister are at variance but it is more likely than not that the version given by the respondent was the one that he adopted.

26. There are two issues that arise at this point. First, whether the evidence of the respondent was capable of supporting the making of a protection order and, second, whether his Worship was entitled to disregard the taped evidence and the report relating to it. The taped evidence was, if accepted, completely destructive of the evidence of the respondent and that of her sister. It seriously reflected on their credibility generally.
Sufficiency of case for a protection order -

27. Section 4 DVA authorises the making of protection orders. Such an order may be made if, and only if, one or more of the qualifying circumstances are made to appear on the balance of probabilities.

28. The first two such circumstances require a finding that a "domestic violence offence" has been committed or has been threatened and is likely to be engaged in by the appellant, in relation to a person such as the respondent. A "domestic violence offence" is defined by s.3 DVA as a "prescribed offence". A "prescribed offence" comprises a number of offences under the Crimes Act 1900 (ACT). None of those offences or any threat to commit any of them, it was conceded, could be established as having been engaged in by the appellant on the respondent's version of his conduct.

29. The respondent submitted that s.4(1)(c) is applicable. That provision would authorise a protection order if the appellant has -

"engaged in conduct of such an offensive or harassing
nature...that...the spouse...fears for his or her safety"

30. The terms "offensive" and "harassing" are not defined. It may be assumed that the alleged conduct of the appellant both on 22 January 1991 and on 10 February 1991 could validly be categorised as either or both of "offensive" and "harassing" in relation to the respondent. She could be regarded as having been vexed, annoyed, displeased or even angered by the alleged conduct of the appellant.

31. However, it is not all such conduct in respect of which a protection order may be made. It is only available if such conduct is of such a kind that it causes the respondent (in this case) to fear for her "safety". It is not enough either that a subjective reaction to that effect is aroused. It must be an objectively reasonable response. It could not seriously be argued that the Act is intended to enable orders to be made where only a subjective justification exists. "Safety" implies a freedom from hurt, injury or danger. It relates essentially to freedom from "domestic violence" whether physically engaged in or seriously threatened. Mere criticism, nagging, even unreasonable persistence cannot credibly be described as "violence". The purpose of the Domestic Violence Act is to protect the prescribed persons from physical violence. Other incursions upon their well-being are able to be dealt with by Family Court orders or, where there is no marriage, ordinary injunctive processes. Mere annoyance or inconvenience does not require the drastic and draconian curtailment of ordinary liberties authorised by the DVA (see s.9).

32. The closest the conduct of the appellant is said to come to a threat against the "safety" of the respondent is the suggestion, which appears directed to the respondent's sister, of "fixing" her and the respondent's family so that they will not be permitted to interfere in the relationship between the appellant and the respondent.

33. The suggestion, put by the respondent, that this statement, if it was made, established a threat to the safety of the respondent is total nonsense. Even if the so-called "threat" could be taken seriously it is, in context, impossible to infer that it means more than a threat to use lawful means to the end of averting what the appellant was said to perceive as unwarranted interference in his relationship with the respondent. No physical threat was expressed or could reasonably be implied.

34. Indeed, not even the respondent so interpreted the alleged "threat". She was asked what she feared as a result of the conduct she had deposed to. She said (T.27/2/91, p 11), in effect, that she felt pressured to conform to the appellant's wishes. She did not say that she feared physical violence of any kind against herself or anybody else. Indeed, the proposition that she could so fear was manifestly preposterous.

35. It follows that even without a reconsideration of his Worship's factual conclusions, a lawful basis for the issue of a protection order was completely lacking in this case.

36. So to conclude is, of course, no criticism of the learned Magistrate. Counsel for the appellant seemed to have assumed, before the Magistrate that the alleged conduct, if proved, would warrant a protection order.

37. If it is the practice in the Magistrates Court to issue protection orders merely to prevent annoyance by one party to a domestic relationship of another, it seems to me that the resources directed towards eradicating or at least controlling violence in our society are being sadly misdirected. Of course, no-one knows what evil lurks undetected in the breasts of men and women aggrieved by a domestic relationship which has gone wrong. Tragedies occur. Sometimes without warning. Sometimes with what are later perceived only in the comforting light of hindsight as warnings. That does not warrant a disregard for the clear terms of the legislation.

38. The DVA does not require persons to be restrained until they prove an absence of violent intent. If a person is to be restrained by a protection order, that person must have displayed conduct giving rise to a reasonable fear of violence of the kind that would constitute a threat to the safety of a relevant person. It is not enough that they have behaved inappropriately or even offensively towards another.

39. A threat to safety would usually, though not always, be constituted by conduct, engaged in or threatened, which amounts to a "prescribed offence". Each of the prescribed offences involves physical violence being either engaged in or threatened.

40. Accordingly, in the present case, it appears that nothing allegedly done or said by the appellant could reasonably have been construed as a threat to the physical safety of the respondent. It follows that there was no legal cause for a protection order to be made. On this ground alone the appeal must be upheld.
The taped evidence and report thereon -

41. When he attended, both on 9 February and 10 February 1991, at the respondent's residence, the appellant had in his top shirt pocket a Sony, voice-operated, Microcassette-Corder loaded with a blank tape (otherwise than on the 10th, when the conversation of the 9th was on the tape). What was recorded was accepted by both the respondent and her sister as a true recording of what took place on 10 February.

42. The tape revealed very few of the statements that the respondent alleged the appellant had made or that her sister had alleged. The supposed threat, "I'll fix you (etc).." does not appear.

43. Of itself, of course, a lack of sequential and textual accuracy does not indicate that the witness whose testimony is under scrutiny is giving false evidence. There are, however, a number of matters of significance apart from the alleged threat, not appearing on the tape alleged by the respondent to have been said. These are:-
(i) That the appellant said to the respondent that she had to agree or not

lant's proposals concerning the items on the list which he produced;
(ii) That the appellant said to anyone, whether the respondent or her

sister,

ot threaten me, you cannot stop me, you cannot tell me what to do";
(iii) That the appellant was banging on the roof (or bonnet) of his car;
(iv) That Brenda Cotter said, "Come on Jeanette, you don't have to listen

to
isn't right" as her first statement when she approached the appellant;

(v) That the appellant, before driving off, said "Oh Brenda, Oh Brenda,
have a great day, love you babe."

Clearly, if the respondent and her sister were to be accepted as truthful witnesses, something more than a convincing demeanour was required to discredit the objective evidence constituted by the tape-recording.

44. Both the respondent and her sister did advance an hypothesis.
The respondent denied that the tape, in length 6 minutes 15 seconds, recorded everything. She was asked if she was suggesting the tape had been edited, that is, if material had been deleted.

(T.27/2/91; p 40) "I wouldn't say they've been deleted from
it. I would say they just haven't been put on it in the
first place. The tape has been stopped."

To explain why the tape did not show the appellant "shouting" at her as she alleged, the respondent said, "he was talking very softly which I found abnormal for Peter, yes".

45. Brenda Cotter was confronted with the tape. She said -

(T.4/4/91; p 26) "I most certainly - and as I was listening
to the tape, they do coincide with breaks in the tape even
though this document (the report) says they are not breaks."

It was put to her that the recording loss was only 0.975 seconds. She responded (28), "I am not a scientist but I do believe the breaks are much longer than that."

46. She was asked when the "I'll fix you" comment was made. She said -

"It was more than likely after the tape had been stopped or turned
off, when everybody was getting back into the car...between the two
cars and at the very end after Jeanette had gone in."

47. Such a proposition, if true, would have rendered it impossible for the respondent to have heard the "I'll fix you" comment. This statement should have been regarded as completely destructive of the witness' credibility.

48. To explain the lack of any banging noise, she said that the appellant was, in banging on the car, (31) "...trying not to make a muffled and banging noise".

49. She was at issue with only one part of what appeared on the tape. She is apparently heard to say "I have caused trouble a fortnight ago, nearly a month ago". She alleged she said "Peter has caused the trouble...". The tape is quite clear. Mrs Cotter's suggestion was clearly not truthful.

50. The issue was clear. If the tape was complete, even if there were breaks of nearly one second in toto, then as the respondent conceded, her allegations were necessarily false.

51. The tape was challenged. It was suggested either that the tape had been stopped or muffled at critical times.

52. To counter those suggestions the appellant had the tape examined by Richard Heggie Associates Pty Ltd.

53. There were four apparent breaks in the recording during the relevant period. The report produced by Richard Heggie Associates Pty Ltd identified one, (the second) not as a discontinuity, but a bumping of the recorder. The other three, totalling in length 0.975 seconds, were discontinuities due to a momentary pressing of the "record" button in playback mode. The tape itself starts and ends with the noise of a motor vehicle being driven. It would be possible for the evidence of the respondent and her sister to be true only if material had been deleted from the tapes or the recorder stopped to avoid recording the several passages of conversation alleged by the respondent and her sister to have occurred but which were not on the tape.

54. The report (exhibit 4) also concluded that the tape was an original recording (par. 3.2, p 5). That contradicts any assertion that the tape was an edited re-recording.

55. The report does not reveal the qualifications of the author of the report. It cost the appellant $2,500.00. The author was offered for cross-examination, at least by telephone. That was not a course the respondent was obliged to accept. She could have refused to consent to the admission of the report.

56. The Magistrate (T.4/4/91; p 83) said,

"If the report submitted in its present form, while it's not
been the subject of cross-examination, has that defect -
these proceedings have cost people enough money already
without adding to it..."

Ms Lumsden, for the respondent, was invited to get instructions. She advised that she was instructed to consent to the admission of the report. It was received as Exhibit 4.

57. In his reserved decision, his Worship commented on the tape. He said -

(T.11/4/91; p 2) "Unfortunately, nowhere is the court
informed of the qualifications of the people who were
involved in doing the testing or making the report. And the
report, of course, has not been subject to a
cross-examination, and cannot be."

Having referred then to the favourable impression he had of the demeanour of the respondent and her sister as opposed to that of the appellant's sister, his Worship concluded,

(3) "I am satisfied on the balance of probabilities that the
words that (the respondent) says were said by (the appellant)
were said, notwithstanding that they do not appear in the
taped evidence that is before me."

58. Referring then to the taped evidence he said -

"As I have indicated, in evaluating that evidence, whilst it has the
appearance of being professional, I have no knowledge of the
qualifications of the people, and, in any event, I am not persuaded
that the recording recorded everything that occurred."

59. On the face of the report, it was apparently at variance with these conclusions. It was submitted, for the appellant, that his Worship was not entitled to reject the report simply because the respondent's demeanour (and that of her sister) was convincing. It was contended that by waiving the right to cross-examine the author of the report, the respondent was effectively estopped from challenging its conclusions. His Worship was, therefore, bound to accept it at face value. Its effect is inconsistent with the testimony of the respondent and her sister as to the "threat" allegedly offered. But for that "threat" it is clear that his Worship would not have issued the protection order.

60. The respondent offered a number of submissions in reply to these contentions.

61. It was submitted that the evidence warranted a protection order apart from the incident on 10 February 1991. I reject that submission. The incident of 22 January 1991 contains no threat of physical violence against the respondent. At most it suggests a technical assault by means of physical restraint accompanied by verbal abuse. Whilst, if accepted, that is conduct that ought not to be permitted, it does not even remotely fall under the DVA.

62. Evidence of any other harassing and aggressive conduct lacked all specificity. The appellant's evidence that he hit the respondent on one occasion during their nine year relationship can hardly be elevated into evidence sufficient for a protection order.

63. In any event, the case was run and his Worship's decision based on the proposition that the appellant had made the "I'll fix you" statement to the respondent's sister.

64. Evidence of "fear", even if accepted as genuine, is, of course, insufficient unless it is objectively reasonably based. That fear, to be relevant, had to be of physical violence. Even if the alleged statements of the appellant could have been so interpreted, the protection order would not have issued without a conclusion that the statement as to "fixing" the respondent's sister and her family had been made.

65. The real thrust of the respondent's submission was that the report left open the proposition that there had been "dub editing" of the original tape. There was a subsidiary point made as to variations between the appellant's evidence on details of the interruptions and of some evidence from the appellant's sister of words spoken not appearing on the tape. Certainly, the appellant's sister paraphrased the conversation to which she deposed but I could not find any inconsistency between her evidence and that disclosed by the tape.

66. It was suggested there were two further "breaks" in the tape not analysed that could have contained the threat. Of course, that ignores the fact that other significant conversations are also missing. It also ignores the fact that, if so, the "threat" would have had to have been uttered after the appellant had driven off or, at least, whilst doing so. In other words, it could not be suggested that those other breaks could conceal the alleged "threat" unless the evidence of the respondent and her sister as to when it happened was false.

67. The remaining hypothesis, consistent with the appellant's guilt, was that the appellant had substituted a dub edited tape. The difficulty with that hypothesis is two-fold. First, there is no evidence to support it. Second, contrary to the assertion made by counsel for the respondent, the report, in express terms, identifies the tape tested as an original recording that has not been spliced or otherwise interfered with.

68. The conclusions in the report are, accordingly, consistent only with the proposition that, as to the incident on 10 February 1991 the respondent and her sister gave a deliberately false account of what took place with a view to bringing proceedings against the respondent. A clear motive, of course, was for the respondent to gain an advantage over the appellant in relation to terms as to access.

69. There were some inconsistencies as to the way in which the "breaks" in recording occurred. Those inconsistencies were minor, as to sequence, rather than as to the basic facts. It is a notorious fact that accurate recollection of a series of events and conversations is very difficult. No doubt, had the evidence been capable of supporting the view that the tape could have been tampered with, those inconsistencies, together with demeanour, could reasonably have founded a conclusion that the testimony of the respondent was more acceptable than that of the appellant.

70. It follows that the central question is whether his Worship was entitled to disregard the report for either or both of the reasons he advanced.
(i) Lack of stated qualifications -

71. By consenting to the tender of the report, the respondent must be taken to have agreed that the report was admissible. If the author was not qualified to express the opinions that are expressed in the report, the report was not admissible. It was not open to his Worship to doubt those qualifications. He was seriously in error in so doing.
(ii) Lack of cross-examination -

72. The fact that the right to cross-examination was waived means the report was unchallenged. Evidence, whether oral or documentary which is both expert and unchallenged cannot lightly be set aside.

73. Although unchallenged evidence, if clearly wrong, is not required as a matter of law to be accepted, it is unreasonable not to accept it unless it appears that it is manifestly wrong. There was, in fact, nothing about the report that rendered it incapable of acceptance.

74. It is logically absurd to suggest that the respondent's demeanour (and that of her sister) could invalidate the scientific tests and conclusions attested to by the report. It follows that his Worship was seriously in error in advancing lack of cross-examination as a reason for rejection of the report when it was, in fact, a powerful reason for accepting it.
(iii) Demeanor of the respondent -

75. Whilst demeanour can be convincing, it should not dissuade a tribunal of fact from critically examining the content of what is said.

76. The content of the respondent's evidence, particularly in cross-examination, reveals a consistently vindictive attitude. It is designed to exaggerate or distort events, but to avoid detection. It betrays cunning as well as deception.

77. For example, the respondent said -

(T.27/2/91; p 10) "When he has been angry he has punched
holes in the wall, he has kneed holes in the wall, he has
kicked holes in the wall, he
has picked up furniture and broke it continuously. Whenever
he does these things he always quickly repairs them as if it
never happened."

The statement is self-evidently absurd. The lack of corroboration for it is, however, cunningly anticipated. No rational person could accept this statement as being literally true. It probably elevates the single instance the appellant admitted to into a constant course of conduct.

78. Her desire to attribute base motives to the appellant is amply illustrated by the respondent's evidence that the appellant considered violence in marriage was "warranted".

79. She was asked to provide a basis for that statement. She replied -

(11) "Peter said to me, "I know women who have been bashed
up, bruised, thrown down stairs and from drunken husbands and
they always go back to their wives. There is no reason why
you should not go back to me.""

Needless to say, there is no rational way that statement, even if accurately reported, could be regarded as any approval of the conduct described in it. Quite the contrary. However, the making of the allegation reveals a desire on the respondent's part to denigrate the appellant irrespective of the presence or absence of objective justification.

80. Her explanation for the lack of "banging" noises on the tape was quite pathetic but brazen. She said,

(30) "I do remember wondering myself why he wasn't banging
because he was so angry."

Mrs Cotter's evidence is characterised by a somewhat desperate attempt to try and explain the inconsistency between the tape and her evidence. Her suggestion,

(T.4/4/91; p 28) "It (the alleged "threat") was more than
likely after the tape had been stopped or turned off, when
everybody was getting back into the car",

was so totally ridiculous as to lead to the inevitable conclusion that she was conscious of being found out giving false evidence.

81. Her description of banging on the car had, in chief, been even more graphic than the respondent had given. Faced with the obvious lack of any sound of banging on the tape her best effort was that the appellant was (31) "...trying not to make a muffled and banging noise".

82. It is also noteworthy that the "Oh Brenda" statement does not appear on the tape at all. It is highly unlikely that it too was swallowed up by an adventitious break in recording. That evidence was also patently false.

83. What then is to be made of those witnesses' "impressive demeanour"? An impression of persuasion can be conveyed by demeanour. It is a relevant consideration. It should not, however, be over-rated (see, for example, "Oral v Written Evidence: The Myth of the "Impressive Witness"" - Loretta Re (1983) 57 ALJ 679). In particular, it should not distract attention from a critical appraisal of the evidence a witness has in fact given. Even without the tape, the objective statements made by the respondent and her sister were seriously open to doubt.
Conclusion -

84. It follows that, at least in relation to the incident of 10 February 1991, his Worship was in error not to accept the tape at its face value. Acceptance of it necessarily implied that the respondent's evidence and that of her sister was false. In the circumstances, it could not reasonably have been concluded that that evidence was other than deliberately false.

85. The fact that evidence given as to what happened on 10 February 1991 was untrue does not, of course, logically require a conclusion that the respondent's evidence as to what happened on 22 January 1991 is untrue. Nor is the fact that the appellant's evidence was in conformity with the tape recording taken on 10 February 1991 and thus true, mean that the incident on 22 January 1991 occurred as the appellant suggests.

86. However, as the respondent has been demonstrated not only to be a liar herself but also capable of procuring others to lie on her behalf, it is impossible to be certain that she has not done so in relation to the incident on 22 January 1991.

87. That does not mean that the appellant's account of what took place on 22 January 1991, is convincing. On any view of it, some verbal altercation and, possibly, some temporary restraint of the respondent took place.

88. However, even if the appellant's evidence is to be doubted, on any construction of the events of 22 January 1991, no protection order was justified.

89. The appeal will be upheld, the orders made on 11 April 1991 will be set aside and the application of the respondent for a protection order will be dismissed.

90. I will hear the parties as to costs.