A woman who was charged with driving while disqualified outside Gympie when she was fleeing domestic violence has been acquitted after raising the defence of extraordinary emergency.
The decision delivered ex tempore on Friday in Gympie Magistrate Court stated that banned driver “ESC” admitted she was driving near Widgee in February last year, but chose to drive with her dog because her then partner had threatened to kill the animal.
ESC had since had a protection order taken out against her former partner.
Magistrate Hughes said a threat to kill an aggrieved’s animal was a well-recognised act of coercive control going beyond a mere threat to property, and as a matter of law, he was therefore satisfied the threat constituted an emergency.
He said ESC’s evidence was that the threat was the latest incident in an ongoing pattern of domestic violence perpetrated by her then partner.
“I am satisfied the defendant’s decision to drive was a reaction to imminent danger from her then-partner – namely the threat to kill her dog,” he said.
“Assessing the defendant’s act of driving with her dog within holistic principles of domestic violence, I am satisfied she reacted to an objectively based fear of imminent danger from her then-partner to her dog and ultimately, to herself.”
Police argued ESC’s demeanour when intercepted by police was not consistent with escaping danger, and that she could have used her phone to call for help, driven to the nearest police station or a nearby factory, or alerted police when they pulled her over.
Magistrate Hughes said he did not accept ESC’s emotional state was determinative of her situation.
“The defendant is not expected to be wiser or better than an ordinary person in the same circumstances,” he said.
“She must act quickly and do the best she can. A person is not to be condemned simply on the basis that in the agony of the moment and without the opportunity to weigh up and deliberate upon what action to take, she made a wrong choice.
“The defendant was a vulnerable woman in an isolated rural area being confronted by a partner who was threatening her animal companion.
“This was not only a direct threat to the dog. Because of the defendant’s relationship to her dog, it was also a threat to her own mental and emotional wellbeing.”
He said ESC using her phone to call for help would not have removed her from the immediate situation, and that the closest neighbouring properties were occupied by her then partner’s landlord and his parents, so they were not “places of sanctuary or refuge” for her.
ESC had given evidence she did not alert police because she believed they had not taken her concerns seriously in the past.
Magistrate Hughes said even if ESC’s belief was mistaken, her was satisfied it was honest and reasonable given the variation in the quality of police responses to domestic violence, and a six-hour wait for police to attend to a previous complaint she made against her then partner.
“It is well-recognised – albeit belatedly – that victims may not immediately report domestic violence, whether it be due to concerns about retribution from the perpetrator or concerns about obtuse responses from authorities,” he said.
“At the very least, it must create some reasonable doubt for the defendant.
“This then makes it reasonable for her to consider other options to remove herself from imminent danger to a place of safety.”
He said he did not consider a factory to be a viable alternative option for ESC to visit, and he was satisfied that “a friend’s home was the closest place she could go where she was most likely to be given shelter and understanding”.
“The defendant was an isolated and vulnerable woman seeking refuge from an imminent threat of domestic violence,” he concluded.
“She removed herself from that extraordinary emergency by removing herself and her valued companion from the source of that threat by driving to the nearest place of refuge.
“It is reasonable to expect an ordinary person in that situation to have acted in that way.”
Magistrate Hughes ordered that the charge be dismissed, a verdict of acquittal be entered, and that ESC be discharged.
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