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  • Unreported Judgment

AJC v Gijsberten; AJC v AME

 

[2019] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195

PARTIES:

AJC

(Appellant)

v.

Constable Kellie-Ann Gijsberten 

(Respondent)

AJC

(Appellant)

v.

AME

(Respondent)

FILE NO/S:

DC 170/2018 207/2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mt Isa

DELIVERED ON:

8 October 2019

DELIVERED AT:

Townsville

HEARING DATE:

26 April 2019

JUDGE:

Lynham DCJ

ORDERS:

Appeal 207 of 2018

  1. The time to file notice of appeal 207 of 2018 is extended to 3 September 2018.
  1. The appeal is allowed.
  1. The protection order made in the Mount Isa Magistrates Court on 14 June 2018 is set aside.
  1. The application for a protection order by AME be remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

  1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

Appeal 170 of 2018

  1. The appeal is allowed.
  1. The order made in the Mount Isa Magistrates Court on 14 June 2018 refusing the appellant’s application for a protection order and the order that the appellant pay the respondents costs are set aside.
  1. The application for a protection order by the appellant is remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

  1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

CATCHWORDS:

DOMESTIC VIOLENCE – APPEAL AND REVIEW – s 164 and 165 Domestic and Family Violence Protection Act 2012 – where parties brought opposing applications for a protection order pursuant to s 37 Domestic and Family Violence Protection Act 2012 – where protection order made against the appellant – where the appellant’s cross-application was dismissed – whether pursuant to s 41C Domestic and Family Violence Protection Act 2012 both applications should have been heard together – whether conduct of the proceedings constituted the applications being heard together

 DOMESTIC VIOLENCE – APPEAL AND REVIEW – where appellant was a self-represented litigant – whether the magistrate adequately explained to the appellant the process by which each application was to be heard and determined – whether the magistrate erred in prohibiting the appellant from cross-examining the aggrieved – whether the appellant was denied procedural fairness in opposing the magistrate’s prohibition on him cross-examining the aggrieved – whether the conduct of the hearing of each application resulted in the appellant not receiving a fair hearing - whether there has been any error on the part of the magistrate in dealing with each application - whether the decisions of the magistrate should be set aside and remitted to the Magistrates Court for rehearing

 DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant filed notice of appeal 207 of 2018 out of time – whether pursuant to s 165(5) Domestic and Family Violence Protection Act 2012 an extension of time should be granted to extend the time in which to file the notice of appeal

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 32CA

Domestic and Family Violence Protection Act 1989 (Qld)

Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 37, 41, 41A, 41C, 145, 150, 151, 164, 165, 168, 169

Domestic and Family Violence Protection and Another Act 2015 (Qld)

Domestic and Family Violence Protection and Another Act Amendment Bill 2015 – Explanatory Notes

Domestic and Family Violence Protection Bill 2011 – Explanatory Notes

Domestic and Family Violence Protection Rules 2014 (Qld) r 33

Evidence Act 1977 (Qld) s 21N

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Allesch v Maunz (2000) 203 CLR 172

DMO v RPD [2009] QDC 92

DJL v Central Authority (2000) 201 CLR 226

Fox v Percy (2003) 214 CLR 118

Friedrichs v Police [2007] SASC 6

GKE v ETU [2014] QDC 248

MacPherson v The Queen (1981) 147 CLR 512

Marriage of F (2001) 161 FLR 189

Moore-McQuillan v Police (1998) 196 LSJS 488

Palmer Tube Mills (Aust) Pty Ltd v Semi Semi; Transport Accident Commission v Streicher [1998] 4 VR 439

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Mundy [2011] QCA 7

R v Tait [1999] 2 Qd R 667

R v Rostom (2007) 98 SASR 528

Re Bui and Federal Commissioner of Taxation [2008] AATA 666

Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29

COUNSEL:

C. Grant for the Appellant

SOLICITORS:

Anderson Telford Lawyers for the Appellant

Ross & Robins Lawyers for the Respondent in appeal 170/2018

Queensland Police Service for the Respondent in appeal 207/2018

Background

[1] On 14 June 2018, following a short hearing, in the Mount Isa Magistrates Court a protection order naming AME as the aggrieved was made against the appellant. That application had been brought on behalf of AME by Constable Kellie-Ann Gijsberten. On the same day, again following a short hearing, an application for a protection order made by the appellant naming AME as the respondent was refused by the same Magistrate. 

[2] On 12 July 2018 the appellant filed a notice of appeal against both the decision of the Magistrate to make a domestic violence order against him and the decision of the Magistrate refusing to make a protection order in respect to his application. Both decisions were appealed by filing a single notice of appeal (Appeal 170 of 2018).

[3] On 3 September 2018 the appellant filed a separate notice appealing the decision of the Magistrate making a protection order against him (Appeal 207 of 2018). S 165(4) Domestic and Family Violence Protection Act 2012 (“DFVPA”) prescribes that a notice of appeal against the making of a protection order must be filed within 28 days of the making of the order. The appellant’s notice of appeal filed on 3 September 2018 was therefore out of time. The appellant applies for an extension of the period for filing the notice of appeal to 3 September 2018. S 165(5) DFVPA confers on the court a discretion to extend the period for the filing of a notice of appeal. The notice of appeal was filed approximately 7 weeks out of time. The appellant’s legal representative has provided an explanation for the delay in filing the second notice of appeal.[1] In essence the delay was as a result of the appellant’s legal representative being unaware that both applications were heard and determined by the Magistrate separately albeit on the same day rather than together which, as will become apparent, is the subject of a ground of appeal. It was upon becoming aware of two applications being heard and determined separately that the appellant filed the second notice of appeal on 3 September 2018 appealing the making of a protection order against the appellant.

[4] For the reasons that follow, I am satisfied that the Magistrate dealt with the two applications separately on 14 June 2018. In those circumstances the orders made by the Magistrate in respect to each application were separate and discrete. It was therefore necessary for each decision of the Magistrate to be the subject of a separate appeal. On an application for an extension of time the Court is required to consider whether any good reason has been shown to account for the delay in bringing the appeal and, more broadly, whether it is in the interests of justice to grant the necessary extension.[2] I am satisfied in the circumstances that good reason has been shown for the delay and that there is no prejudice to the respondent in granting an extension of time in which to file the notice of appeal. A relevant consideration here as to whether an extension of time be granted, is the fact that the notice of appeal filed on 12 July 2018 appealed both decision of the Magistrate and identified as a third respondent to the appeal the Mount Isa Police Prosecution Corp. Therefore the appellant did appeal both decisions of the Magistrate when the first notice of appeal was filed and the reason for the appellant not filing separate notices of appeal has been explained as a consequence of being unaware that the two protection order applications had been dealt with separately. When the appellant’s legal representative became aware that separate notices of appeal should have been filed that was attended to expeditiously.

[5] I am satisfied having regard to the explanation for the delay in filing the notice of appeal in respect to appeal 207 of 2018 that it is in the interests of justice to extend the period for the filing of the notice of appeal until 3 September 2018. I note however that with respect to the second notice of appeal, the correct respondent should, in my view, be Constable Gijsberten who is the police officer who is named as the applicant on the application made on behalf of AME for which an order was made rather than Mount Isa Police Prosecution Corps. The name of the respondent is amended by substituting Constable Gijsberten. It has been agreed by the parties that the two appeals be heard together.

The nature of an appeal under the DFVPA

[6]  Where the right of appeal is conferred under a statute, the nature of an appeal is to be determined upon the terms of the statute conferring the right of appeal.[3] Appeals against orders made under the DFVPA are governed by Division 5 of the Act. S 168 of the DFVPA provides as follows:

168  Hearing procedures

  1. (1)
    An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
  1. (2)
    However, the appellate court may order that the appeal be heard afresh, in whole or part.”

[7]  Section 169 DFVPA then sets out the powers which are conferred on the appellate court. It provides:

169 Powers of appellate court

  1. (1)
    In deciding an appeal, the appellate court may -
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    vary the decision appealed against; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.
  1. (2)
    The decision of the appellate court upon an appeal shall be final and conclusive.”

[8]  S 168(2) DFVPA confers on the appellate court the discretion to order that the appeal be by way of a hearing de novo. That discretion has not been exercised for purposes of the present appeal. Accordingly, in the absence of such an order, the nature of an appeal under s 168(1) is one of a rehearing by the appellate court on the evidence given in the proceeding before the Magistrate. That is so even though the nature of the appeal is not expressed in those terms.[4]

[9] In an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of appeal is the result of some legal, factual or discretionary error.[5] The appeal requires a real review of the trial and the Magistrate’s reasons and for a determination to be made of the relevant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[6] 

Appeal No. 207 of 2018

[10] The Magistrate dealt with the application brought on behalf of AME in which the appellant was the respondent first. The Magistrate gave a decision in respect to that application before proceeding to hear and determine the appellant’s application for a protection order. Appeal 207 of 2018 relates to the decision of the Magistrate to make the protection order against the appellant. Because this was dealt with first in time it is convenient to deal with this appeal first.

[11] On the hearing of the appeal the appellant amended the grounds of appeal to the following grounds:

“1. The learned Magistrate erred in failing to hear the cross-applications together and by failing to make an order ruling separate applications and providing reasons;

  1. The learned Magistrate displayed a perceived bias in his conduct of the hearing;
  1. A miscarriage of justice was occasioned as the Appellant was given inadequate opportunity to conduct his case and the hearing was not conducted according to proper procedure;
  1. A miscarriage of justice was occasioned due to the learned Magistrate acting on a “concession” not made by the appellant”.

[12] In order to understand the grounds of appeal it is necessary to refer in detail to some aspects of the manner in which the hearing of AME’s application for a protection order was conducted.

[13] At the commencement of the hearing the police prosecutor who was appearing on behalf of AME on her application for a protection order foreshadowed to the Magistrate that she intended to apply for AME’s application to be “based on the papers only” and for the appellant to be prohibited from cross-examining AME. The Magistrate informed the appellant that he had “read the material and it’d be in your best interest, don’t you think, to go away and talk to all parties” about the applications. AME was represented by counsel in respect to the appellant’s application naming her as the respondent.

[14] The following exchange then occurred between the Magistrate and the appellant:[7]

MAGISTRATE:  Now you understand that you are not able to cross-examine the other party.

APPELLANT: That wasn’t the indication we were given in the last mention because [counsel] actually was asked a question if he had any issues with me cross-examining [AME].

MAGISTRATE: Well, let me tell you this ….

APPELLANT: And he didn’t object to that.

MAGISTRATE: Let me tell you this. [Counsel] doesn’t run this court. I run this court.

APPELLANT: I appreciate that, your Honour.

MAGISTRATE: Do you understand that? Good. I run this court according to law and it’s the case you won’t be able to cross-examine.

[15] The Magistrate adjourned the hearing to allow the parties’ time to discuss the applications. The hearing resumed and the police prosecutor informed the Magistrate that the hearing of AME’s application would be proceeding. The following exchange then occurred between the Magistrate and the appellant:[8]

MAGISTRATE: Now [appellant] before you sit down, the prosecutor’s asked that their case in the evidence-in-chief be heard on the papers. Do you understand what that means?

APPELLANT: I do not, no.

MAGISTRATE: Have you sought legal advice in this matter sir?

APPELLANT: I have, but I can’t …

 ……..

MAGISTRATE: Well the prosecutor wants to – wants her case presented – that I read the papers – that is the affidavits. And that will be the evidence-in-chief….. That no evidence be called.

……..

MAGISTRATE: Now, [appellant] do you have any objection to the prosecutor having her evidence-in-chief on the papers in front of me?

APPELLANT: Could you explain that in laymen’s terms please?

MAGISTRATE: Well what that means is she doesn’t have to call any evidence and get any evidence – oral evidence – from the witness box, and the material is before me and that I make a decision on the material in front of me.

APPELLANT: Yep okay.

MAGISTRATE: And you have a chance to respond.

APPELLANT: Okay.

MAGISTRATE: What do you say to that?

APPELLANT: That’s fine sir.

MAGISTRATE: You accept that do you?

APPELLANT: I do accept that. What are the options your Honour?

MAGISTRATE: Well we go the full hog.

APPELLANT: Which is?

MAGISTRATE: That the prosecutor has to call oral evidence and go through the oral evidence, and you get a chance to cross-examine.

APPELLANT: But it’s the same thing as it being on the paper, isn’t it? So I am happy with that.

MAGISTRATE: What are you happy with?

APPELLANT: To run with the first option.

MAGISTRATE: On paper?

APPELLANT: Yes.

MAGISTRATE: Very well. All right. Sergeant, the – I have in front of me an affidavit – or what is your – what’s the material you’re relying on.

[16] Following that exchange the police prosecutor tendered a number of exhibits in support of AME’s application. Those exhibits included an affidavit of AME, an affidavit of the applicant police officer and various Queensland Police Service exhibits including audio recordings, a record of interview conducted with the appellant, body cam footage and a number of photographs.

[17] Upon admitting the material relied upon by the applicant, the Magistrate invited the police prosecutor to make submissions as to why a protection order should be made. The police prosecutor obliged, submitting that on the materials tendered the Magistrate would be satisfied that a protection order should be made against the appellant.

[18] The Magistrate then informed the appellant that “this is your time, sir, to put forward your case in response to what the prosecutor’s case is”. The appellant raised a complaint that he had not been treated fairly by police in their investigation and that “information I supplied to police was wholly disregarded”. The Magistrate asked the appellant if he was tendering any material. The appellant sought to tender a statutory declaration provided by a person whom the appellant said had witnessed AME assault the appellant. At this point counsel who was appearing for AME in respect to the appellant’s application for a protection order naming AME as the respondent asked the Magistrate to be heard on whether the statutory declaration should be admitted into evidence. The Magistrate permitted counsel to make submissions as to why the statutory declaration should not be admitted. The following exchange then occurred between the appellant and the Magistrate:[9]

APPELLANT: So I was under the impression that the stat dec or affidavit from a witness of an assault that was reported to police would be acceptable to the court?

MAGISTRATE: Well, not – well you’re under – well can I answer your question very quickly. You’re under the wrong impression because what the – see [appellant] what the evidence before me is this: [AME] has made an affidavit which is her case against you. And in that affidavit she says a number of things have happened to her and she says that happened to her by you. Now I’m asking whether you have anything in response to what’s contained within this affidavit in your application?

APPELLANT: I do have a response. – A verbal response, your Honour.

MAGISTRATE: And I – well you can’t give evidence from the bar table. You’ll have to give evidence in the witness box if you are going to do that.

APPELLANT: Well, whatever it takes your Honour. The – I guess I was trying to demonstrate that [AME] is the violent person in this relationship, not me.

MAGISTRATE: Well do you have anything that – I’m going to ask you again. I tell you what, I’m running out of patience.

APPELLANT: Well I just don’t understand the process, your Honour.

MAGISTRATE: Well you should …

APPELLANT: That’s the problem.

MAGISTRATE: … have engaged a lawyer.

APPELLANT: I can’t afford a lawyer, your Honour.

MAGISTRATE: You should’ve got some legal advice.

APPELLANT: I can’t afford it.

MAGISTRATE: Well that’s the way it is, sir.

APPELLANT: And I was also told by Sergeant [indistinct] “yes, just go to court and defend yourself, mate. You’ll be okay” so based on those two things, I guess it’s here I am. 

[19] Following that exchange the Magistrate allowed the appellant to tender the statutory declaration. A further affidavit of another witness was also tendered by the appellant and admitted into evidence together with a number of photographs which the appellant sought to rely upon as showing that he had been assaulted by AME as well as a further statement which the appellant said he had made to police. The appellant also tendered screenshots of text messages exchanged between he and AME which he informed the Magistrate demonstrated that AME was not afraid of him.

[20] The appellant tendered a police report relating to what the appellant described as a complaint he had made to police concerning AME arranging to have the electricity to his residence disconnected. That was admitted into evidence. The appellant also attempted to tender what he described as a police file note taken from a police body camera recording. The tender of that document was objected to by the police prosecutor on the basis that it did not form part of the appellant’s materials which he filed in accordance with the directions made by another Magistrate for the filing of material. The following exchange then occurred:[10]

MAGISTRATE: [appellant] any reason why that material is not part of your case before the prosecutor as been provided – disclosed to the prosecution as per what [another magistrate] directed you to do?

APPELLANT: Your Honour, I thought – and seems like I was mistaken that the police would have – being police – a police document, they would have access to it.

MAGISTRATE: No, no. That’s not – you’re going down the wrong path. I asked you any reason why that document that you rely on in your case is not part of your written material as per the directions.

APPELLANT: Because I thought they already would have it your Honour.

MAGISTRATE: No. They don’t – they might have it. But you’re relying upon it in your case, sir, so you will need to make it part of your case – application.

APPELLANT: Well, I think in the interests of a fair outcome and justice, your Honour, I don’t think the police would have any objection to that, If we’re trying to get to the truth.

MAGISTRATE:  Well I will ask the prosecutor if she has an objection to that document being tendered. 

PROSECUTOR: Your Honour, I would have an objection to anything being tendered that doesn’t make part of the response.

MAGISTRATE: Very well. All right. Do you understand that [appellant]?

APPELLANT: I do your Honour, but I think it’s – I believe it’s unreasonable your Honour, because it demonstrates [AME] is an aggressive and violent person.

MAGISTRATE: Well if that’s the case sir, you should have made that …

APPELLANT: It’s my mistake. I freely admit, your Honour, it’s my mistake.

MAGISTRATE: Yes.

APPELLANT: I assume they would have that.

MAGISTRATE: And this matter has been going on for some time and you’ve had plenty of time to prepare … And now you want to impose that on the – make that part of your case. The prosecution haven’t – you’ve taken them by surprise. They’re not allowed to take you by surprise under the fairness principal that we act under in this country, so that’s the situation, sir.

APPELLANT: I just thought if we’re trying to get to the facts, your Honour, this would represent that.

MAGISTRATE: Well if it was such an important matter, I’m telling you, you would have made it part of your case from the outset and you would have had your house in order.

APPELLANT: I’m not a professional, your Honour, and I apologise for that.

…….

MAGISTRATE: No you don’t need to apologise, sir. This is always a new area of – I often get people representing themselves in court and they think they’re going to come in here and blow everybody away. They’re mistaken once they rise to their feet.

APPELLANT: That definitely was not my thought, your Honour.

MAGISTRATE: No. I accept that. But now the prosecution has objected to it. I don’t have to listen to her objection, but I don’t think it’s fair on the prosecutor and I don’t think it’s a matter that I will receive that evidence. Again the rules of evidence don’t apply. What’s your next point, sir?

[21] The appellant informed the Magistrate that he also wished to rely upon the contents of police notes in which it was recorded that AME’s daughter had witnessed AME attempting to force her way into the room where the appellant had locked himself away for safety. Part of the appellant’s response to the making of a protection order against him was that it was he, not AME, who was the real victim of domestic violence in their relationship. He referred in submissions to an incident where he was forced to lock himself in a room and that AME attempted to break into the room and attack him. He submitted that what AME’s daughter was recorded telling police in the police notes provided support to his version of what had occurred. The police notes did not form part of the appellant’s filed material in response to the application. The following exchange occurred between the Magistrate and appellant:[11]

APPELLANT: I would have thought your Honour, and pardon my ignorance, that if the police were after an honest result and not just a witch hunt, they’d be willing to accept anything to – any facts.

MAGISTRATE: That’s not how we operate, sir. We don’t operate on smoke and mirrors.

APPELLANT: It’s not smoke and mirrors. It’s in – from their files on …

MAGISTRATE: No, no, just listen to me. Just listen to me, sir. I’m trying to tell you the domestic violence application process is all reduced to written material these days. And in the absence of that, it becomes oral, when that is required. Now oral and written is a process we can go down, and [another magistrate] who sits in the domestic violence jurisdiction, gave directions that prosecution provide their material, you respond to that material by time, date and place, and everybody knows where everybody is at. Do you understand?

[22] The Magistrate ultimately disallowed the appellant adducing that evidence. There was then a further exchange between the appellant and the Magistrate in which the appellant again raised what he perceived to have been bias on the part of police in their investigation of AME’s complaint and their failure to investigate the complaints he had made against AME. In the course of that exchange the appellant twice complained to the Magistrate that it was AME who should be “sitting here answering these questions”.[12] In reference to injuries which AME had deposed in her affidavit to having been inflicted by the appellant, the Magistrate drew the appellant’s attention to the photographs tendered by the police prosecutor which purportedly showed injuries to AME. The following exchange then occurred between the appellant and the Magistrate:[13]

APPELLANT: So [AME] is saying that she sustained those injuries on the evening of October 4 2016. On the original police application, those photos weren’t there. Those photos have mysteriously appeared for the current application, so it really gives me – where – if they were that important, where have they come from?

MAGISTRATE: Well, you could have made – you could’ve taken steps to address this point, rather than just now orally.

APPELLANT: Well I just thought – I thought this was the place to do that your Honour.

MAGISTRATE: I mean the prosecution – the prosecutor has tended these without any objection, sir, and I did ask you whether you had any problem with that being. ....

APPELLANT: Sorry, I thought now was the time. My mistake, your Honour.

MAGISTRATE: No, no, no, I did ask you at the beginning of this.

APPELLANT: You did, yes.

MAGISTRATE: It’s on the record.

APPELLANT: You did.

MAGISTRATE: And you had no objection.

APPELLANT: Well, I’m … all those photos your Honour, I’ve got an objection to, because …

MAGISTRATE:  You’ve got an objection to them now.

APPELLANT: Well because I didn’t realise – I didn’t realise your Honour. My mistake, I apologise.

MAGISTRATE: Well, they’re – they’re in evidence. What do you say [prosecutor].

PROSECUTOR: You’re, they should stay in evidence.

MAGISTRATE: Yes.

………

MAGISTRATE: Did you at any stage approach the prosecution and say listen, I’m not too sure about what the authenticity or the nature of these photographs, where they’re from or how they came into being, can you please explain that a little bit further? Did you do that?

APPELLANT: I didn’t realise I had to, your Honour, or I could.

MAGISTRATE: No you didn’t have to but you could have.

APPELLANT: No I thought – my apologies. I thought now was the time to do that.

MAGISTRATE: Well now’s not the time. Well, if – now is the time. Your’re making the objection, but they’re in evidence now, sir. And I’m not going to exclude them. I see no reason to exclude them so far.

……..

MAGISTRATE: Well hang on. Just stop. You didn’t object to these being tendered, sir.

APPELLANT: I object to them now, vigorously, then your Honour.

MAGISTRATE: Well it’s too late, sir. That’s the problem. It’s too late. I’ve turned my mind to them.

[23] The application brought on behalf of AME was determined by the Magistrate on the materials tendered as exhibits and the oral submissions made by the parties. There was no sworn evidence given by any witness. Immediately following the appellant’s submissions the Magistrate gave an ex tempore decision. The Magistrate noted that the evidence before him was “on the papers”. He rejected the appellant’s assertion that police were biased in investigating AME’s complaint. The Magistrate referred to paragraph 5 of AME’s affidavit in which she detailed an incident on 4 October 2016 in which she alleged the appellant had assaulted her and made threats to her. In respect to that paragraph, the Magistrate said:[14]

“Now, I take it from that statement that [appellant] denies what the aggrieved says in her application at paragraph 5. In any event, no other challenge to any parts of the affidavit have been made”.

[24] As to the photographs tendered by the police prosecutor and which the appellant had sought to object to, the Magistrate said:[15]

“And then on page 2 of that is some photographs which the prosecution asked me to consider, those being photographs of the aggrieved. There was no objection at the initial tendering of those photographs, but [appellant] wanted to make an objection, which was late. However, the material was not objected to at the beginning and he says it was not part of the initial case at the time and he had no knowledge of the dishes in the sink. That may be so. He asked what their relevance and authenticity is. And he has nothing to counter-punch that argument”.

[25] In finding that a protection order should be made against the appellant, the Magistrate found:[16]

“On the evidence before me, I am satisfied that [appellant’s] material which has faced very little challenge and it is, I must say, by an unrepresented respondent, it has faced very little challenge to the material in that I am of the view that it is necessary and desirable that an application is – should stand and be made and I will grant the application”.  

[26] In the portion of the Magistrate’s reasons just quoted, the Magistrate made reference to the “appellant’s material” which he said had faced very little challenge. It would appear that this was a slip on the part of the Magistrate and that what he was intending to refer to was AME’s material filed in support of her application. Nothing ultimately turns on that for purposes of this appeal.

[27] Having determined AME’s application, the Magistrate then proceeded to hear and determine the appellant’s application for a protection order against AME, ultimately dismissing that application. That refusal to make a protection order, as noted already, is the subject of appeal number 170 of 2018. 

Should the two applications have been heard together?

[28] The appellant’s first ground of appeal asserts that the Magistrate erred in not hearing both applications together and erred in not ordering that the applications be heard separately and providing reasons for doing so.

[29] There can be no doubt that the Magistrate proceeded to deal with each application separately. Such was made plain when, during the course of the appellant’s submissions, the appellant sought to rely upon an affidavit he had filed in support of his own application seeking a protection order against AME. When he sought to do so the following exchange occurred between the appellant and the Magistrate:[17]

APPELLANT: …. In  my affidavit your Honour.

MAGISTRATE: Your affidavit. Where is that, sir? You haven’t tendered that as part of your case.

APPELLANT: I just though as we’re dealing with both these matter at the same time, is it – can’t refer to it?

MAGISTRATE: No.

APPELLANT: Okay, I’ll …

MAGISTRATE: We’re dealing with one matter first.

APPELLANT: Yes.

MAGISTRATE: Next matter second.

[30] The appellant’s first ground of appeal raises for consideration s 41C DFVPA. That section provides:

41C  Hearing of applications - cross applications before same court

  1. (1)
    This section applies if -
  1. (a)
    either -
  1. (i)
    the original application and cross application are before the same court; or
  2. (ii)
    the variation application and cross application are before the same court; and
  1. (b)
    the court is aware of both applications.
  1. (2)
    The court must -
  1. (a)
    hear the applications together unless the court considers it is necessary to hear the applications separately for the safety, protection or wellbeing of the person named as the aggrieved in the original application, the original protection order or the cross application; and
  1. (b)
    in hearing the applications, consider the principle mentioned in section 4 (2)(e).
  1. (3)
    If the court decides to hear the applications separately, the court must give reasons for the decision.
  1. (4)
    If the court decides to adjourn the hearing of either application or both applications, the court must consider whether to make a temporary protection order under division 2 in relation to each adjourned hearing.”

[31] S 41C DFVPA applies only to where there are cross-applications[18] before the same court. The application of s 41C is informed by s 41A DFVPA which, in so far as is relevant to this appeal, provides:

41A  Application of particular provisions

  1. (1)
    Sections 41B to 41E apply if -
  1. (a)
    an application (the "original application") for a protection order has been made and is before a court; and
  1. (b)
    a second application for a protection order (the "cross application") has been made and is before the same court or another court; and
  1. (c)
    a person named as a respondent in the original application is named as the aggrieved in the cross application; and
  1. (d)
    the person named as the aggrieved in the original application is named as a respondent in the cross application.”

[32] The appellant’s application in which he sought a protection order against AME was unquestionably a cross-application. AME was seeking a protection order against the appellant; the appellant was seeking a protection order against AME. AME alleged that the appellant was domestically violent towards her; the appellant denied that and alleged that it was AME who was domestically violent towards him. In oral submissions the appellant sought to rely upon much of the same evidence to both resist the making of an order against him and in support of his application for a protection order against AME. Both applications were before the Mount Isa Magistrates Court, the court was aware of that and both applications had been listed for hearing on the same day.

[33] S 41C(2) DFVPA is expressed in mandatory terms. It prescribes that a court must hear an application and cross-application “together” unless the court considers it is necessary to hear the applications separately for the safety, protection or wellbeing of the person named as the aggrieved. The use of the word “must” in an Act indicates that the power is required to be exercised.[19] If the court decides to hear the applications separately, then s 41C(3) imposes upon the court the requirement to give reasons for the decision.

[34] Unfortunately the Magistrate was not referred to s 41C DFVPA when hearing AME’s application. The question which arises on this appeal is whether hearing both applications on the same day, albeit after a decision was made in relation to one application before then hearing and determining the other, satisfied the requirement of s 41C(2) DFVPA of hearing the applications “together”? In my view the answer is no.

[35] The term “together” is not defined in the DFVPA. The Macquarie dictionary defines the term to mean “without intermission or interruption; continuously”. Conversely, the dictionary defines the term “separate” to mean, inter alia, “to keep apart or divide, as by intervening barrier, space etc”. Having regard to the dictionary definition of the term, to be heard “together” for purposes of s 41C DFVPA, in my view, means both applications being heard and determined at the same time, that is, as part of the one proceeding. To hear and determine one protection order application first before hearing and determining a cross-application will result in hearing the two applications separately and not together even where, as here, the two hearings follow one another on the same day.

[36] In addition to the dictionary definition of the term “together”, interpreting the term to mean at the same time is also consistent with the purpose for which s 41C DFVPA was introduced. The section did not form part of the DFVPA when the Act first came into force in 2012. The section was introduced as part of amendments to the DFVPA contained in the Domestic and Family Violence Protection and Another Act 2015 which repealed the existing s 41 DFVPA and replaced it with the sections now forming s 41, including s 41C. In introducing s 41C the Explanatory Notes for the introduction of the section stated its purpose to be as follows:[20]

“The new section 41C provides a new framework for dealing with cross applications (including variation applications as defined in section 41) that are before the same court. The intention is where the court is aware of cross applications involving the same individuals it will be required to hear the applications together, unless hearing the cross applications separately is necessary for the safety, protection or wellbeing of an aggrieved person. If the court decides not to hear the applications together, the court is required to provide its reasons for this decision.”

[37] S 41C DFVPA is aggrieved focused. One obvious purpose for the introduction of the section is to ensure a victim of domestic violence who is the applicant for a protection order be required to give evidence in the one proceeding where a respondent to the application has made a cross-application. If the two applications are dealt with separately then, if the applications are contested, this might result in the aggrieved being required to give evidence and be cross-examined in both applications. Requiring an aggrieved to give evidence in separate proceedings, once as an aggrieved and once as a respondent, runs contrary to the policy objectives underpinning the DFVPA. For example, the principles for administering the DFVPA set out in s 4 of the Act include:

4  Principles for administering Act

  1. (1)
    This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  1. (2)
    Subject to subsection (1), this Act is also to be administered under the following principles –
  1. (a)
    people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
  1. (b)
    to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
  1. (c)
    perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change.”

[38] Also relevant, the Domestic and Family Violence Protection Rules 2014 (“the Rules”) expresses the objects underpinning the rules to include:

5 Main objects of rules

  1. (1)
    The main objects of these rules are –
  1. (a)
    to allow a DFVP court to decide a proceeding in a way that –
  1. (i)
    is consistent with the main objects of the DFVP Act ; and
  1. (ii)
    resolves a proceeding under that Act with a minimum of expense; and
  1. (iii)
    facilitates the just and expeditious resolution of the issues relevant to the proceeding”.

[39] The principles and objects underpinning the domestic violence protection regime in Queensland therefore place a particular focus on the aggrieved, emphasising the paramountcy of the safety, protection and wellbeing of people who fear or experience domestic violence, ensuring a minimisation in the disruption to their lives as well as the importance of ensuring proceedings under the DFVPA are conducted with the minimum of expense and in a way that expedites the resolution of issues relevant to the proceeding. Interpreting the term “together” as requiring both an application and cross-application being heard and determined at the same time, that is as part of the same proceeding, is clearly in accordance with the principles and objects stated in the DFVPA and Rules. 

[40] Another obvious purpose for the introduction of s 41C DFPVA is that it is directed towards making the task of hearing and determining mutual allegations of domestic violence easier for the court. If an application and cross-application are heard at the one time then the court will be in a far better position to assess the full spectrum of allegations and counter-allegations raised by the parties in support of their respective applications. The court will in those circumstances be better placed to make findings of credit and in deciding whether it is necessary or desirable to make a protection order against one or both parties. Thus where a cross-application is determined separately, particularly if it is before a different Magistrate, then the court is essentially being tasked to determine the application in a vacuum, without the benefit of the more complete picture of the relationship that hearing both applications together will usually provide to a court and without the benefit of being able to assess whether a cross-application is primarily motivated out of revenge or tactical advantage. It is this last point which was highlighted in the explanatory notes to the Domestic and Family Violence Protection Bill 2011, when it was said:[21]

“Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders.

During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved.

This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship cannot be a victim and perpetrator of this type of violence at the same time.

A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings.”

[41] Whilst I accept that the Magistrate heard and determined the appellant’s application immediately after he heard and determined AME’s application that, in my opinion, did not constitute hearing the two applications together for purposes of s 41C DFVPA. As explained, the section is clear in its terms. It requires a court, when dealing with an application and cross-application which is before it, to hear both applications together as part of the same proceeding. Hearing and determining one application before moving to hear and determine a cross-application does not constitute hearing the applications together. Moreover, as the present appeal demonstrates, other consequences can flow for a party where an application and cross-application are not heard together. Here, for example, the appellant had sought to rely upon the affidavit which he had filed in support of his cross-application for a protection order. The Magistrate prohibited him from doing so by reason that the appellant had failed to file the affidavit in response to AME’s application. Aside from whether the appellant should regardless have been permitted to rely upon the affidavit under r 33 of the Rules, had both applications been heard and determined together as s 41C(2) DFVPA mandated, then the issue would not have arisen. The appellant’s affidavit would have formed part of the evidence before the court upon which both applications would have been required to be determined.

[42] S 41C(2) DFVPA does of course confer on a Magistrate the discretion to hear and determine an application and a cross-application separately. The discretion can be exercised where the court considers it necessary to do so for the safety, protection or wellbeing of the person named as the aggrieved: s 41C(2)(a) DFVPA. However, as the section makes clear, if applications are to be heard separately then the discretion to do so must be exercised, the default position being that they be heard together. A Magistrate is also required to give reasons for deciding to hear the applications separately.

[43] Here, because the Magistrate’s attention was not drawn to s 41C DFVPA and the mandatory requirement of the section that both applications be heard together, the discretion to hear the application and cross-application separately did not come to be exercised by the Magistrate. Moreover, because the Magistrate had not been asked to hear the applications separately no reasons were given for in fact doing so. For that reason s 41C DFVPA was not complied with. The question which then arises is whether the failure to comply with the mandatory requirements of s 41C DFVPA invalidates the proceedings in respect to both applications, thereby necessitating the setting aside of the Magistrate’s decisions.     

[44] The question of whether a failure to comply with the mandatory requirements of s 41C DFVPA will invalidate the proceedings depends on the purpose or intention of the legislature. It is trite to observe that the legislator always intends that procedural stipulations contained in an Act be complied with, but that does not necessarily mean that every failure to comply with a statutory stipulation has the consequence of rendering the proceedings invalid. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the plurality at 399-389 said:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties holding void every act in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with a condition is regarded as mandatory, and failure to comply with condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said ‘a clause is directory where the provisions contain mere matter of direction and nothing more’. In R v Loxdale, Lord Mansfield CJ said ‘[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory’. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been ‘substantial compliance’ with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: ‘substantial compliance with the relevant statutory requirement is not possible. Either there was compliance or there was not’.

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

[45] Therefore the question is whether it is a purpose of the DFVPA to render an act done in breach of s 41C invalid. Ultimately I am not persuaded that in the circumstances here, despite non-compliance with s 41C DFVPA, that the failure to hear and determine both applications together invalidates the decision of the Magistrate. The purpose behind s 41C as explained earlier is to ensure, inter alia, that a Magistrate has the benefit of hearing both applications together which will better enable the Magistrate to make findings on credit and whether an act of domestic violence has been committed and ultimately, whether it is necessary or desirable that a protection order be made in favour of one or either party. The section is also directed towards the wellbeing of victims of domestic violence which would include, where possible, an aggrieved giving evidence and being cross-examined only one time in a proceeding where there is a cross-application.

[46] The hearing of both applications separately appears to have been as a consequence of oversight. The Magistrate was clearly aware that the appellant had filed a cross-application which he was dealing with after AME’s application and he was aware through submissions the general basis upon which the appellant was seeking a protection order. Whilst the applications should have been heard together, I am not persuaded having regard to the objects of the DFVPA and the purposes for which s 41C DFVPA has been enacted, that the proceedings were rendered invalid by failing to hear both applications together. Were that to be so, then the inevitable consequence of invalidating the hearing of each application by reason of not hearing them together would be that an aggrieved will be required to go through the whole process again. That consequence, in my view, clearly runs contrary to the purposes underpinning the DFVPA. That is not to say that in some circumstances the failure to hear both applications together might invalidate the proceedings. However this ground of appeal is not made out.

Whether the appellant was given adequate opportunity to conduct his case?

[47] Ground of appeal 3 asserts that a miscarriage of justice was occasioned by reason of the appellant not being given adequate opportunity to conduct his case and that the hearing was not conducted according to proper procedure. There are two aspects to this ground of appeal developed in submissions. The first relates to both protection order hearings being conducted on what was described in the hearing as “on the papers”.

[48] Hearing an application for a protection order under the DFVPA “on the papers” is not expressly provided for in the Act. Although it is a procedure which is well familiar to the courts,[22] in its traditional sense a “hearing on the papers” is understood to be a hearing where an application is decided on the documents and submissions relied upon by the parties without an oral hearing. The application made by the prosecutor at the commencement of the hearing was not that AME’s application be determined “on the papers” in the traditional sense. Rather, it was an application requesting AME’s application be determined on the affidavit and other materials relied upon by the parties coupled with oral submissions but without AME being called to give sworn evidence or be cross-examined.

[49] S 145 DFVPA expressly provides that for proceedings under the Act, a court is not bound by the rules of evidence, or any practices or procedures applying to courts of record and that a court may inform itself in any way it considers appropriate. The fact that the rules of evidence do not apply to applications under the DFVPA means that, although not expressly provided for under the Act, a hearing “based on the papers only” in the sense contemplated by the prosecutor is one which is clearly allowed for under the Act.

[50] However, as with applications “on the papers” in the traditional sense, hearing and determining applications under the DFVPA based only upon affidavit and other materials as well as oral submissions without requiring witnesses to give sworn evidence and be cross-examined is not a procedure which will be appropriate in every application. Caution will need to be exercised when to allow such a hearing. Its appropriateness will be determined by the issues raised in a particular application. For example, it may well be appropriate to determine an application for a protection order “on the papers” where the facts are not in dispute, where there are no issues of credit to resolve and where the only issue to be determined is whether a protection order is necessary or desirable to protect the aggrieved from domestic violence under s 37(2) DFVPA. Where however there is a contest on the facts or where issues of credit will be relevant to making findings of fact, it will be fraught with risk to determine an application based upon the parties materials and oral submissions alone and without sworn evidence. Much will depend on the circumstances of a particular case.

[51] Thus it has been said that ordinarily it would be “inappropriate to determine an application on the papers where issues of fraud, recklessness, evasion, improper conduct or intention are involved, because it is essential for issues of that sort to be determined after hearing oral evidence that has been tested by cross-examination.”[23] Further, the nature of the issue to be tried may be such that, where evidence is given by affidavit, fairness will require that one side be able to cross-examine those who have made affidavits relied on by the other side.[24] What fairness requires in a given case can be decided only in the light of the circumstances of the case, including in particular the affidavit material.[25]

[52] There will be a number of considerations which will be relevant to whether a contested protection order application made under the DFVPA should be heard and determined upon the affidavit and other materials relied upon by the parties and oral submissions without sworn evidence. The parties consent to such a hearing is not determinative particularly where at least one party is self-represented and because of that may not appreciate the consequences of consenting to such a procedure. The most important factor will invariably be whether the court can make findings of credit based solely on the materials tendered and in the absence of sworn evidence. Where a respondent seeks to challenge allegations raised by an aggrieved in an affidavit or in submissions and seeks to allege a contrary version of events, then it is difficult to see how such conflicts could be resolved in the absence of sworn evidence in which the allegations can be tested by cross-examination. Other considerations would include whether additional evidence is required to be adduced by a party which is not contained in the materials tendered and whether either party will be disadvantaged by determining the application in the absence of sworn evidence. 

[53] What must always be borne in mind is that the making of a protection order is a serious step to take.[26] The making of a protection order can have serious consequences for a person both in terms of the conditions that can be attached to an order as well as other consequences including, for example, a person’s ability to hold a firearms licence under the Weapons Act. A breach of a protection order is a criminal offence and is potentially punishable by an actual term of imprisonment. And so whilst s 145 DFVPA expressly provides that for proceedings under the Act the rules of evidence do not apply and that a court may inform itself in any way it considers appropriate, that does not mean that a court is at liberty to hear and determine a contested protection order application as it sees fit. Procedural fairness will always remain a paramount consideration when hearing a contested application and, for example, the suitability of hearing an application “on the papers”.  In this regard, the observations of McGill DCJ in DMO v RPD [2009] QDC 92, whilst made in respect to the now repealed Domestic and Family Violence Protection Act 1989 (Qld), remain as much apposite to proceedings under the DFVPA as they did to the repealed Act. His Honour observed with respect to a similar provision to s 145 DFVPA contained in the repealed Act at [9]-[10]:

“[9] Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness. Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form. But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter.

[10]  Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination. One would expect that the hearing contemplated by s 48 would be a hearing in the conventional sense. I note that s 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation.” 

[54] The Domestic Violence Court in Queensland, as do many other courts, commonly encounter unrepresented parties and they present their own unique set of challenges for a court in ensuring that the hearing is conducted fairly for all parties. A party to a proceeding under the DFVPA has a fundamental right to self-representation. A person who cannot afford legal advice or legal representation will of necessity have to represent themselves. On occasions this can lead to an unsatisfactory situation. When a person is unrepresented, an additional burden is placed on the court to ensure that the person receives a fair trial.

[55] In MacPherson v The Queen (1981) 147 CLR 512 the accused was self-represented. Evidence was given by police officers of confessions which they said the accused had made. The accused put to the police in cross-examination that he had made no confession but that they had made threats to induce him to confess. The trial judge did not inform the accused of his right to ask for the voluntary nature of any confession he may have made to be determined on voir dire in the absence of the jury, and he did not conduct a voir dire. The accused was convicted. The appeal raised for consideration the responsibilities of a trial judge, when an accused is self-represented. Gibbs CJ and Wilson J said at 524-525:

“There is no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.”

[56] Similarly, Mason J observed at 534:

“Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. … A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.”

[57] In R v Rostom (2007) 98 SASR 528, Gray J and Sulan J also said with respect to the obligations imposed on a judge where an accused is self-represented at 538:

“It is not a judge’s role to conduct the case for the defence. On the other hand, the judge must ensure that the accused knows the rules and is given some assistance as to the conduct of the defence. It may be difficult for the judge to balance the requirement to ensure that an accused is sufficiently informed to conduct the defence with the need to maintain the appearance of impartiality. However, at the end of the process there must have been a fair trial.

The assistance that a judge should provide an unrepresented defendant cannot be defined. The extent of the need for assistance will depend on the nature of the proceedings, the circumstances of the accused, and in particular the accused’s understanding of the proceedings.”

[58] Finally, in Friedrichs v Police [2007] SASC 6, Gray J cited at [25] the observations of Bleby J in Moore-McQuillan v Police[27], where it had been said:

“[A] magistrate, despite busy lists and the need for expedition, must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.”

[59] The Family Court also has long experience in dealing with self-represented litigants. The jurisprudence of the Family Court is helpful when considering whether the appellant, as a self-represented litigant, was provided adequate opportunity to present his case and whether the hearing of the application was conducted according to proper procedure. In the Marriage of F (2001) 161 FLR 189, the Full Court of the Family Court took the opportunity to review the guidelines applicable in the Family Court for trial judges hearing matters involving self-represented litigants in the family law jurisdiction. At 226-227 the court identified the guidelines to assist trial judges when dealing with self-represented litigants to be as follows:

  1. (i)
    A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
  1. (ii)
    A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses.
  1. (iii)
    A judge should explain to the litigant in person any procedures relevant to the litigation.
  1. (iv)
    A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
  1. (v)
    If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
  1. (vi)
    A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.
  1. (vii)
    If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.
  1. (viii)
    A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 68 ALJR 509 at 510.
  1. (ix)
    Where the interests of justice and the circumstances of the case require it, a judge may:

•  draw attention to the law applied by the Court in determining issues before it;

•  question witnesses;

•  identify applications or submissions which ought to be put to the Court;

•  suggest procedural steps that may be taken by a party;

•  clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

[60] These guidelines, although developed for the Family Court, provide at least some helpful guidance as to dealing with a self-represented party in contested proceedings under the DFVPA.

[61] It will be apparent from the extracts of the transcript set out earlier that the appellant, as a self-represented litigant, encountered a number of difficulties in responding to AME’s application. For example, the appellant appears to have had only a limited understanding of  the procedure by which the Magistrate intended to hear and determine the application. He obviously came to court with the belief that he would be cross-examining AME on her application. The appellant was confused as to when and how to object to evidence adduced by AME and ultimately found himself in the unfortunate position that because he had failed to object to photographs tendered earlier by AME the Magistrate considered it was too late to object to them and that they would remain in evidence. The appellant also lacked a proper understanding of how he could adduce evidence in support of his case. Critically he was even precluded by the Magistrate from relying upon the affidavit he had filed in support of his own application by reason that he had neglected to also file it in response to AME’s application. In other words, one of the cornerstones of the appellant’s case in resisting the making of an order against him was taken away from him because he had failed to comply with a procedural step. 

[62] The appellant in the course of submissions sought to challenge the allegations of domestic violence made by AME in her materials. He also alleged that it was AME who had committed acts of domestic violence on him not the other way around. Resolving those issues required findings of credit to be made as to who to believe. Dealing with the application “on the papers” was therefore not suitable to resolving those issues. Resolving credit issues was not a task amenable to dealing with the application on the exhibited materials relied upon by the parties in the absence of sworn evidence and the allegations of both parties being tested by cross-examination, even where the parties made oral submissions on the materials.

[63] Furthermore, despite some attempts at explaining the procedure by the Magistrate, it is apparent that the appellant did not properly understand the consequence of AME’s application being heard on the papers. At the commencement of the hearing the appellant informed the Magistrate that he wanted to cross-examine AME. As the extract of the transcript set out at [15] above reveals, after an initial attempt by the Magistrate to explain what it meant to have the application heard on the papers the appellant asked the Magistrate to explain it to him again “in layman’s terms”. The Magistrate again attempted to do that. He told the appellant that what it meant was that the prosecutor would not have to call any evidence from the witness box and that he would make his decision on the material in front of him and that the appellant would have a chance to respond. The appellant told the Magistrate “that’s fine” and that “I do accept that” before asking the Magistrate “what are the options, your Honour”. The Magistrate then said to the appellant, rather unhelpfully, that “we go the full hog”. It is obvious that the appellant did not have any idea what the Magistrate meant by “go the full hog” because he asked the Magistrate to explain that term. The Magistrate did so by telling the appellant that the prosecutor would have to call oral evidence and the appellant would get a chance to cross-examine.

[64] Of course by this stage the Magistrate had already informed the appellant that he would not allow him to cross-examine AME. Therefore telling the appellant that he would get the chance to cross-examine would not have assisted him in understanding the differences in procedure. Yet despite that further explanation by the Magistrate the appellant’s follow up response is telling. He asked the Magistrate “But it’s the same thing as it being on the paper, isn’t it? So I’m happy with that”. Of course it was not the same thing. There was a fundamental difference between hearing the application “on the papers” and a hearing in which AME or other witnesses were called to give sworn evidence and be cross-examined. The question posed by the appellant that “it’s the same thing, isn’t it” demonstrates, in my view, that the appellant lacked even a basic understanding of the differences in procedure. Having asked that question it was incumbent upon the Magistrate, as frustrating as that might be, to make a further attempt of explaining the differences in procedure in terms which the appellant was able to understand. That did not occur. All that the Magistrate did was clarify with the appellant what he was happy with, and when the appellant said that he was happy “to run with the first option” the Magistrate asked if this was “on paper”. When the appellant said “yes” the application then proceeded without sworn evidence being called.       

[65] The appellant raises a number of complaints as to the appellant not being given adequate opportunity to conduct his case and the hearing not being conducted according to proper procedure. The procedure to be adopted in any given application for a protection order under the DFVPA will be determined by the issues raised by the parties. As I have observed already, because a court is not bound by the rules of evidence and may inform itself in any way it considers appropriate, this confers on the court considerable flexibility in dealing with applications under the DFVPA. However, as the appellant was self-represented, it was incumbent upon the Magistrate to explain to the appellant how the hearing of the application would proceed and in terms which he understood. Procedural fairness remained a paramount consideration.[28]

[66] Ultimately, in my view, the Magistrate failed to ensure the appellant adequately understood how the application would be heard and determined and what his rights were for objecting to, or giving evidence, such that the appellant was not afforded a fair hearing of the application. Proceeding with the hearing “on the papers” in circumstances where there was a significant contest in terms of what each party alleged and where issues of credit were critical to resolving who was to be believed, was in my view inappropriate. By doing so, the appellant was prevented from giving oral evidence in respect to a variety of matters which had been rejected by the Magistrate either as evidence from the bar table or that it did not form part of his filed material. By way of example, the appellant sought to rely upon the contents of text messages proving that AME had agreed to have lunch with him. He sought to rely upon that evidence as demonstrating that AME was not afraid of him. An objection was taken by the prosecutor that “there isn’t any evidence before the court at the moment where [AME] has agreed to have lunch or even suggested to have lunch”.[29] On that basis the Magistrate acceded to the prosecutor’s objection. The Magistrate also informed the appellant that he would not be permitted to cross-examine AME which, as is explained below, was a fundamental error resulting in the appellant being denied a fair hearing. But even if the Magistrate had correctly ruled that the appellant could not cross-examine AME that did not mean that the appellant was himself precluded from giving sworn evidence responding to AME’s evidence.

[67] As McGill DCJ observed in DMO v RPD, ordinarily it would be expected that the hearing of an application for a protection order where the respondent appeared and contested the matter would proceed much the same way as a civil trial and that both an aggrieved and respondent would be required to give evidence and be cross-examined. That, in my view, continues to be the position for proceedings under the DFVPA. 

[68] The Magistrate did of course allude to the right of the appellant to give sworn evidence when he told the appellant “you can’t give evidence from the bar table. You’ll have to give evidence in the witness box if you are going to do that” to which the appellant replied “Well, whatever it takes your Honour”.[30] There was otherwise no attempt by the Magistrate to explain to the appellant, in terms he understood, that he could give sworn evidence from the witness box, how he might do that or the consequences if he elected to do so, both in terms of being liable to cross-examination as well as giving evidence of matters raised in submissions which the Magistrate said he would disregard because it was evidence given from the bar table or did not form part of his materials.

[69] The rejection of the appellant’s submissions on the basis that he was giving evidence “from the bar table” is in my view misconceived. In a proceeding under the DFVPA to which the rules of evidence have no application and where a court may inform itself in any way it considers appropriate, the prohibition on a party giving evidence “from the bar table” has no application. What is said by a party in submissions, where it is not supported by other evidence, might mean little or no weight can be given to it. But the fact that it is said “from the bar table” of itself is not a basis for rejecting the submission outright. Similarly, whilst there are obvious reasons in a procedural fairness sense why parties to an application under the DFVPA are now required to file affidavits containing the evidence they wish to rely upon, because a court hearing an application for a protection order may inform itself in any way it considers appropriate, there is no blanket prohibition on a party relying upon evidence which does not form part of their filed material. Whether a party should be precluded from relying upon evidence not contained in their filed material will depend upon the nature of the evidence sought to be adduced and the reasons why evidence was not included. Natural justice and procedural fairness will also be important considerations in determining whether a party should be allowed to adduce any evidence not forming part of their filed material. If ultimately it is a question of what weight is to be attached to a piece of evidence or a submission which does not form part of a party’s filed material then, in my view, a court will need to exercise great caution in prohibiting a party from at least adducing such evidence, especially where the party is self-represented.  

[70] I am satisfied from the conduct of the proceedings that it was not adequately explained to the appellant, in terms he understood, what it meant to have the application determined “on the papers” and the consequences for him in having the hearing of the application determined on that basis. Nor was it adequately explained to the appellant his right to give sworn evidence from the witness box in support of his case, including explaining to the appellant that he was entitled to give sworn evidence which he had been precluded from making submissions because he was said to be giving evidence from the bar table or that he had not included it in his filed material. It is most telling that even towards the end of his submissions the appellant continued to apologise to the Magistrate for his lack of understanding of procedure and his misunderstanding as to when he should have objected to the photographs. This perhaps best demonstrates the appellant’s lack of understanding of the process by which the application was being heard.

[71] What is abundantly clear from the appellant’s submissions during the hearing of the application is that he disputed a number of aspects of AME’s application. The Magistrate made a finding that AME’s material “has faced very little challenge” by the appellant. In reality that was not because the appellant did not wish to challenge AME’s material, clearly in my view he did, but because he lacked even a basic understanding of how to do so. The task of resolving the obvious factual disputes between what AME had alleged in her application and what the appellant asserted in his submissions, raised significant issues of credit which could not be resolved on the materials tendered and oral submissions. Determining the application “on the papers” was an error in procedure depriving the appellant of a fair hearing. Moreover, the failure of the Magistrate to explain to the appellant, in terms he understood, the procedure by which the application would be determined, including how he could challenge evidence and how he could adduce evidence as part of his case also deprived the appellant of a fair hearing. On this basis the appeal must be allowed.

Prohibiting the appellant from cross-examining the aggrieved

[72] In addition to what, in my view, were the inadequacies identified in the conduct of the hearing of the application including the Magistrate’s failure to ensure the appellant properly understood the manner in which the application would be heard and the consequences for him in proceeding in the way it did, there is one further fundamental error in the conduct of the hearing which, in my view, deprived the appellant of a fair hearing. I have noted earlier that at the commencement of the hearing one of the applications foreshadowed by the police prosecutor was for the appellant to be prohibited from cross-examining AME. The appellant informed the Magistrate that he understood from a directions hearing conducted by another Magistrate that he would be allowed to cross-examine AME. The appellant subsequently reiterated that belief when it came time to hear his own application for a protection order.

[73] Whether the appellant was wrong or right in his understanding that he was allowed to cross-examine AME, the Magistrate precluded him from doing so. The Magistrate did so without first hearing submissions from either the police prosecutor or the appellant or by reference to s 151 DFVPA. The hearing then proceeded on the papers in the sense explained earlier.

[74] The right to cross-examine an aggrieved on a contested application for a protection order under the DFVPA is governed by s 151 DFVPA. In contrast to s 21N Evidence Act 1977 (Qld), which imposes a blanket prohibition on a defendant in certain criminal proceedings from cross-examining a complainant, s 151 DFVPA is not cast in mandatory prohibitive terms. Rather, the section confers a discretion on the court not to allow cross-examination of an aggrieved. The section provides:

 151  Restriction on cross-examination in person

  1. (1)
    This section applies if -
  1. (a)
    a protected witness gives evidence in a proceeding under this Act; and
  1. (b)
    a respondent in the proceeding wishes to cross-examine the protected witness; and
  1. (c)
    the respondent is not represented by a lawyer.
  1. (2)
    The court, on its own initiative or on the application of a party to the proceeding, may order that the respondent may not cross-examine the protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to -
  1. (a)
    suffer emotional harm or distress; or
  1. (b)
    be so intimidated as to be disadvantaged as a witness.
  1. (3)
    However, if the protected witness is a child, the court must make an order that the respondent may not cross-examine the protected witness in person.
  1. (4)
    If the court makes an order under this section, the court must-
  1. (a)
    inform the respondent that the respondent may not cross-examine the protected witness in person; and
  1. (b)
    require the respondent to advise the court by a stated date or time whether the respondent -
  1. (i)
    has arranged for a lawyer to act for the respondent; or
  1. (ii)
    has arranged for a lawyer to act for the respondent for cross-examination of the protected witness; or
  1. (iii)
    has decided not to cross-examine the protected witness.”

[75] “Protected witness” is defined to include an aggrieved: s 150(1) DFVPA.

[76] As a starting point, a plain reading of s 151 DFVPA is that it allows a self-represented respondent to a contested application for a protection order to cross-examine an aggrieved. S 151(2) confers on the court, either on its own initiative or on application of a party to the proceedings, a discretion to prohibit a self-represented respondent from cross-examining the aggrieved. The considerations relevant to the exercise of the discretion are contained in s 151(2), namely, if the court is satisfied that if cross-examined, the aggrieved is likely to suffer emotional harm or distress or be so intimidated as to be disadvantaged as a witness. S 151(4) DFVPA is also important. It prescribes what a Magistrate is required to do where an order is made under s 151(2) prohibiting a self-represented respondent from cross-examining an aggrieved: the Magistrate must inform the respondent that they may not cross-examine an aggrieved and require the respondent to advise the court whether (a) they have arranged for a lawyer to act for them or (b) arranged for a lawyer to act for them for cross-examination of an aggrieved or (c) the respondent has decided not to cross-examine an aggrieved.

[77] Here, if the appellant was to be prohibited from cross-examining AME then s 151(2) required the Magistrate to have regard to the terms of the section itself and to satisfy himself that AME would likely, if cross-examined, suffer emotional harm or distress or be so intimidated as to be disadvantaged as a witness. As the hearing bears out, the Magistrate informed the appellant that he was not allowed to cross-examine AME without first hearing submissions from either the police prosecutor or appellant. Indeed, the police prosecutor got no further than foreshadowing to the Magistrate the making of the application. Therefore the making of the order prohibiting the appellant from cross-examining AME resulted in the appellant being denied procedural fairness.

[78] Furthermore, s 151(4) also was not complied with. It required the Magistrate, upon making an order prohibiting the appellant from cross-examining AME, to require the appellant to advise the court of various matters contained in the section. Whilst the appellant did inform the Magistrate that he could not afford a lawyer, he was not informed by the Magistrate that he was entitled to arrange a lawyer to act on his behalf for the purpose of cross-examining AME as the section required. Nor was the appellant asked to confirm that he had decided not to cross-examine AME. It is telling that at the commencement of the hearing of his own application the appellant reiterated to the Magistrate that an order had been made by another Magistrate allowing him to cross-examine AME, demonstrating that he did wish to cross-examine AME.

[79] Prohibiting the appellant from cross-examining AME without complying with the preconditions contained in s 151 DFVPA for the making of such an order was, in my view, a fundamental error which denied the appellant a fair hearing on the application. The appeal must be allowed on this basis also.

[80] As I have noted earlier, an appeal under s 168 DFVPA is by way of rehearing and must be decided on the evidence and proceedings before the court that made the decision appealed against. Accepting that I am to determine this appeal by way of rehearing, s 169 DFVPA then confers upon me the power to confirm, vary or set aside the decision and impose either another decision or remit the matter to the court that made the decision. Having regard to my reasons for finding that the appellant has been deprived of a fair hearing of the application, in my view the only appropriate order to make is to set aside the decision of the Magistrate making a protection order against the appellant and to remit the matter to the Mount Isa Magistrates Court for a rehearing of the application. It is not in my view appropriate that I determine the application for myself having regard to the evidence adduced on the application and the findings of the Magistrate. Having regard to the submissions made by the appellant during the hearing, it is clear that findings of credit will be critical in determining whether AME’s application for a protection order should be granted. Given that the application was heard and determined in the absence of sworn evidence I consider that it is impossible for me to make findings on credit on the evidence before me. The only appropriate course is for the application to be reheard in the Magistrates Court which will enable the appellant, if he so elects, to seek to cross-examine AME and to give evidence himself on the application.

[81] Accordingly, the appeal is allowed. The decision of the Magistrate making a protection order against the appellant is set aside. I remit the application to the Mount Isa Magistrates Court for a rehearing of the application by another Magistrate. 

[82] The appellant has also raised two additional grounds of appeal. The appellant argues that the Magistrate displayed a perceived bias towards the appellant in his conduct of the hearing. The appellant also argues that the Magistrate erroneously found in his reasons for making a protection order that the appellant had made a concession which, it is argued, he did not make. Given my conclusion that the appellant was denied a fair hearing in defending the application and that the appeal on ground 3 be allowed, it is unnecessary that I consider the other grounds of appeal raised by the appellant.  

Conclusion

[83] In respect to appeal number 207 of 2018 I make the following orders:

  1. The time to file notice of appeal 207 of 2018 is extended to 3 September 2018.
  1. The appeal is allowed.
  1. The protection order made in the Mount Isa Magistrates Court on 14 June 2018 is set aside.
  1. The application for a domestic violence order by AME be remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

  1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

Appeal No 170 of 2018

[84] Having heard and determined AME’s application for a protection order the Magistrate adjourned briefly before then resuming to hear and ultimately refuse the appellant’s application for a protection order against AME. On the hearing of the appeal against that order the appellant amended the grounds of appeal to the following grounds:

“1. The learned Magistrate erred in failing to hear the cross-applications together and by failing to make an order ruling separate applications and providing reasons;

  1. The learned Magistrate erred in proceeding on the basis that the Respondent was a “protected witness”;
  1. A miscarriage of justice was occasioned as the Appellant was given inadequate opportunity to conduct his case and the hearing was not conducted according to proper procedure;
  1. The learned Magistrate displayed a perceived bias in his conduct of the hearing.”

[85] In order to understand the appellant’s grounds of appeal it is again necessary to refer to some parts of the transcript and the manner in which the appellant’s application for a protection order was conducted.

[86] At the commencement of the hearing the appellant was asked by the Magistrate whether there was going to be oral evidence. He informed the Magistrate that he intended to rely upon “the evidence I’ve submitted earlier” and referred to a statutory declaration he had tendered in the hearing of AME’s application. AME was represented by counsel. Objection was taken to the admission of the statutory declaration, principally on the basis that the person who provided the statutory declaration was not being called to give evidence. It was ultimately conceded on behalf of the respondent that the statutory declaration could be received into evidence but that the Magistrate should place no weight on it. The appellant’s affidavit filed in support of his application was admitted as an exhibit. In addition the appellant also sought to rely upon the photographs which he had tendered as part of AME’s application which were also admitted as an exhibit.

[87] Having identified the evidence he was relying upon the appellant was then invited by the Magistrate to make submissions in support of his application. He raised an allegation that AME had withheld his superannuation in 2017. Counsel for the respondent objected to that submission on the basis that it did not form part of the appellant’s material. The following exchange then occurred between the Magistrate and the appellant:[31]

MAGISTRATE: [Appellant], [counsel] has objected to you making that submission. And I will allow his objection and I won’t let you make that submission, sir.

APPELLANT: So I’m not allowed to bring up the fact she’s withheld that?

MAGISTRATE: No not about your superannuation.

APPELLANT: That’s what I mean. What’s – that’s not relevant?

MAGISTRATE: Well, you’ve not – it’s not before the court. You’re making submissions from the bar table.

APPELLANT: Your Honour, I was under the impression, given the order made by – at the mention or the instruction made at the mention by the previous magistrate, that I would be able to cross-examine [AME]. That was the instruction he made at the time, and I’ve proceeded on that basis.

MAGISTRATE: No. You have not – you’ve not got a lawyer. [Counsel] has made – you made that objection a little bit earlier, didn’t you, [counsel]?

COUNSEL: Yeah, I did your Honour, and I’m not quite sure what [appellant’s] talking about, there your Honour, and I – from my recollection, and I’m quite sure that I’d never lead the court into error here, but my recollection that [previous magistrate] was going to determine that on the day. It was one of the issues to be determined on the day. ... But of course we never got to that point because now we are doing it.

MAGISTRATE: The – [previous magistrate], as I read the material and I see the direction – require evidence-in-chief by affidavit. And if there’s no affidavit filed, there’s no cross-examination and the witness can’t be called now. It – be springing on you and it’d be unfair to you is that your understanding?

COUNSEL: Yes your Honour. Yeah. Well, there’s two things that arise out of whether he wants to cross-examine our client. One is that under s 151 it’s a discretion for your Honour to make that order that he does not. Because she is – under section 150 – she is a protected witness. The second one is, your Honour, that she is not obliged to give evidence in these proceedings. She’s filed an affidavit but it’s for him to prove his case to the requisite standard as required under the legislation.

MAGISTRATE: And he hasn’t done – and …

COUNSEL: So if he wants to cross-examine her we …

MAGISTRATE: No, no, that’s - I accept that. [appellant] I must remind myself that you’re unrepresented, sir. You’re a self-represented litigant, but I’ve got no doubt that [previous magistrate] would’ve made this very clear to you in no uncertain terms of the process you must undertake and how the procedure is to be taken.

APPELLANT: You’re Honour, with regards to the superannuation, I have a document here from the – my superannuation fund.

MAGISTRATE: I’ve already made a ruling on that, sir.

APPELLANT: So I can’t submit that document?

MAGISTRATE: I’m not going to allow you to – no I’m not allow – going to allow you to consider that now, sir.

[88] It will be apparent from this extract of the hearing that the Magistrate was referred for the first time to s 151 DFVPA and its relevance to the question of whether the appellant was allowed to cross-examine AME. The section had not been referred to at all during the hearing of AME’s application. Moreover, as the exchange also makes clear, the appellant maintained his belief that he was allowed to cross-examine AME and, indeed, that this was the understanding he had been proceeding on. 

[89] There are a number of other issues which are highlighted in this exchange. First, the appellant manifested his obvious lack of understanding of the procedure by which the hearing of his application was to be conducted. And so when the appellant sought to support his submissions that AME had withheld superannuation by tendering a document which he said would prove that, the Magistrate disallowed him from doing so on the basis that what the appellant was seeking to do was give evidence from the bar table. The giving of evidence from the bar table became a recurrent theme both in the hearing of AME’s application for a protection order and in the hearing of the appellant’s application. As explained earlier, s 145 DFVPA makes clear that the rules of evidence do not apply to proceedings under the DFVPA and the court may inform itself in any way it considers appropriate. The giving of evidence “from the bar table”, strictly speaking, is not prohibited under the Act. There may well be other procedural fairness considerations which would justify evidence not being admitted from the bar table, but to exclude the evidence simply because it is “evidence from the bar table” does not accord with the purpose of s 145 DFVPA which allows a court to inform itself in any way the court considers appropriate and without the restrictions rules of evidence impose.

[90] Secondly, and flowing on from that, as a self-represented litigant, it was incumbent upon the Magistrate to explain to the appellant the manner in which the hearing of his application would proceed even if that had already been explained to the appellant by another Magistrate at a directions hearing. The appropriate time to do that would be at the commencement of the hearing. As with AME’s application, there was no explanation given to the appellant by the Magistrate of how the hearing of his application would proceed, what his rights were for adducing or objecting to evidence and, perhaps most importantly, explaining to the appellant that if he wished to give sworn evidence in support of the submissions he was making “from the bar table” then he was entitled to do so.

[91] Thirdly, the submission was made by counsel that AME was not obliged to give evidence in the hearing even though she had filed and was relying upon an affidavit in response to the application. That submission was in my view incorrect. Having filed an affidavit, AME was liable to be cross-examined on her affidavit if the appellant required her for cross-examination subject to any discretion conferred on the Magistrate to prohibit cross-examination. Although the submission was made on behalf of AME that under s 151 DFVPA the court had a discretion not to allow the appellant to cross-examine AME, for reasons explained below, s 151 DFVPA had no application and the appellant was entitled to cross-examine AME as a consequence of the appellant’s application being heard separately. 

[92] As was the case in the hearing involving AME’s application, it is clear from the appellant’s submissions that he was seeking to satisfy the Magistrate that it was AME who had been domestically violent towards him not the other way around. He was precluded by the Magistrate from relying upon a number of assertions made by him in submissions either on the basis that he was giving evidence from the bar table or that his submissions did not form part of his filed material. For example, during the appellant’s submissions the following exchange occurred:[32]

APPELLANT: I returned to Mount Isa on Saturday, the 20th and found my power’s off. All the food in my fridge and freezer had run across the floor, was rotten and it was 40 something – 40 plus degrees in January. I rang Ergon and there’s a recording which [counsel] has heard that Ergon said – I asked Ergon if [AME] had it disconnected and they said yes.

COUNSEL: Wrong your Honour, wrong. [INDISTINCT] allow this man to give absolutely false evidence from the bar table.

MAGISTRATE: Sit down [appellant].

APPELLANT: Let’s play it. I’m happy …

MAGISTRATE: [Appellant] sit down please.

COUNSEL: Absolutely wrong, your Honour. I don’t like to get upset like this, but that is a lie to the court. It’s not on the recording that it is said at all that she disconnected that. He spoke to a call …

MAGISTRATE: Now is the recording part of the material?

COUNSEL: No, its not part of the material at all, your Honour.

MAGISTRATE: So there’s no recording that I’ve got to hear.

COUNSEL: No, no.

APPELLANT: There is a – I can give it to your Honour if you wish.

MAGISTRATE: It’s not part of your written material?

APPELLANT: No.

MAGISTRATE: Thank you.

APPELLANT: I’ve – sorry your Honour I only received that recently.

MAGISTRATE: No, it’s not part of your material. Move on. I won’t allow it. It’s your springing it on [counsel] now and I won’t hear oral submissions from the bar table on this point. Move on.

APPELLANT: Okay. He has heard it though.

MAGISTRATE: No [appellant].

APPELLANT: Okay. I understand.

MAGISTRATE: Sir, you are doing yourself no favours the way you are conducting yourself and I’m making – I can tell you I’m taking notice.

APPELLANT: I’m sorry your Honour. I’m just inexperienced at this and don’t have the professional background that these gentlemen have, your Honour. So I apologise, … but my court etiquette is no doubt lacking. Yes, I got back from Brisbane. My power was – I rang up Ergon which is at paragraph 27 and Ergon told me [AME] was the one that disconnected the power.

COUNSEL: That’s not true, your Honour.

[93] There are a number of observations that can be made about this exchange. First, the fact that the recording which the appellant sought to rely upon did not form part of his materials did not necessarily mean that it was inadmissible in a hearing in which the rules of evidence do not apply. The court is permitted to inform itself in any way it considers appropriate and is not bound by the rules of evidence. Whilst issues of procedural fairness might warrant the exclusion of otherwise relevant evidence in a hearing for a protection order where it has not been disclosed by a party that is not necessarily always the case. It will ultimately be for the discretion of the court whether a party can, in the circumstances, rely upon the evidence. Indeed, it is not difficult to envisage circumstances where a party would seek to withhold disclosing evidence for tactical reasons which is damaging to the other party’s case where disclosing it will lose the tactical advantage. Secondly, it is telling that counsel for AME objected on the basis that what the appellant was submitting was a lie and that he was giving “false evidence from the bar table”. Those submissions involved a direct attack on the appellant’s credit and the veracity of the submissions he was making. Once that attack was made it then became necessary for the Magistrate to resolve whether or not he accepted what the appellant was alleging. That in my view could not be done solely on oral submission or the parties filed materials. This highlights why it is was inappropriate to also deal with the appellant’s application “on the papers’ without the benefit of sworn evidence and cross-examination.

[94] The Magistrate determined the appellant’s application by giving ex tempore reasons and without any adjournment to consider his reasons. The Magistrate also did not have the benefit of listening to any of the recorded evidence adduced by the parties. The Magistrate’s reasons for dismissing the application included the following findings and observations of the evidence:[33]

“The October 2016 incident seems to be “he said, she said” whether there was a knife present, whether there was a kick to the balls and some choking. I’m told by – on behalf of the respondent that the defendant – sorry, the aggrieved grabbed the – after being grabbed by the aggrieved – yes – must have kicked him in some sort of way, out of self-defence. The issue of the respondent saying the term “suicide” – [counsel] that, well, she was driven to that point after bullying – years of bullying, belittling and  - that of calling her a whore, to which [appellant] interjected and said I called her a trollop, and then he said it was about an email which I don’t accept.

   ….

As I said earlier, I’m not bound by the rules of evidence, and I can take the evidence in any way I inform myself and I consider appropriate. I have given quite a bit of leeway to [appellant], given the fact he is a self-represented litigant, and this is a task that’s – I have solicitors in front of me who still have this problem of understanding the process, and I take that into account – of [appellant’s] situation

…..

The evidence must be – there must be evidence to make factual finding or draw inferences of the nature of the – and prospect of domestic violence which may occur in the future. The – as I said, the 2016 – October 2016 incident leaves me satisfied that there was an incident that occurred between the respondent and the aggrieved and how that incident occurred is not quite clear but what I do understand is that the incident occurred at a time where there was some uncertain prospects within the relationship.

…….

I haven’t heard a great deal of evidence but I have been told that both parties live locally and there was a working relationship that seemed to have broken down and dissolved. But I also must take into account the fact that there are children from this union.

……

One thing I want to pay attention to is that [appellant] said a little bit earlier in another application and I will make it clear. And [appellant] said – he’s a 95 kilogram man, strong. There’s no marks on the aggrieved in that matter. And he mentioned to to the Officer – a police officer, those words, “If I hit her there would be damage to her face”. Mr – I must mind – remind myself that [appellant] is applying for a domestic violence order here and what weight to place on that.

……

And when I look at [appellant’s] application at point 4 of his application, he feels that she may attack him personally at any time even in public. She has assaulted him already with a witness present. She has a key to where he lives and she may attack him. She’s irrational and may attack him. No evidence has been produced on that point, I must say.

……

I must say that the material before me gives me some concern about the domestic violence sought by [appellant]. I don’t for one bit say that he is not a man of some credibility but when it comes to credibility of – regarding the evidence before this court – and I must remind myself that he is a self-represented litigant and he is to be afforded more leeway or cautions than a represented litigant.

The evidence relating to the Ergon disconnection – it seems to me quite clear that – and I do accept that the disconnection of the electricity was not at the doing of the respondent. The bill was unpaid. Ergon exercised what Ergon do and would have given steps to be taken place and if it’s not paid within a certain time, date and place after all those steps are exhausted the bill – the electricity is disconnected.”   

Should the cross-application have been heard together with AME’s application?

[95] Ground of appeal 1 argues that the Magistrate erred in failing to hear the applications together and that there was a failure by the Magistrate to make a ruling for hearing the applications separately and providing reasons. I have considered this ground of appeal when determining the appellant’s appeal in respect to appeal 207 of 2018. For those same reasons I am satisfied that the Magistrate was in error in failing to exercise the discretion contained in s 41C DFVPA to hear and determine both AME’s application and the appellant’s cross-application together, that is, at the same time. S 41C DFVPA mandated that both applications be heard together unless the court considered they be heard separately. However, for the same reasons for dismissing this ground of appeal in respect to appeal 207 of 2018, I am not persuaded, in the circumstances here, that the failure to hear both applications together has resulted in a miscarriage of justice such that the appeal should be allowed on this ground.

Proceeding on the basis that AME was a protected witness.

[96] Ground of appeal 2 argues that the Magistrate erred in proceeding on the basis that AME was a “protected witness”. As I apprehend the appellant’s submissions under this ground, it is argued that the Magistrate was led into error by counsel for AME that she was a “protected witness” for purposes of s 151 DFVPA and therefore the Magistrate erroneously exercised his discretion under that section by disallowing the appellant from cross-examining AME on his application. I have set out the relevant passage of the transcript at [87] above to which this ground of appeal relates. 

[97] To some extent the appellant’s submission is misconceived. When the issue of s 151 DFVPA and whether AME was a “protected witness” was raised by counsel for the respondent the appellant had commenced making oral submissions in support of his application. The issue of AME being cross-examined arose in the course of an objection taken by counsel for the respondent that the appellant be prohibited from making submissions as to AME withholding superannuation on the basis that it did not form part of the appellant’s material. When the Magistrate informed the appellant that he would not allow him to make that submission the appellant told the Magistrate that he was “under the impression” he would be able to cross-examine AME and that he had proceeded “on that basis”. The Magistrate then informed the appellant “No. You have not – you’ve not got a lawyer”. He also asked counsel for the respondent if he had made that objection earlier to which counsel indicated that he had. Having regard to that exchange, it is clear, in my view, that the Magistrate had already determined that the hearing would be conducted without the appellant cross-examining AME on the application.

[98] Whilst counsel for the appellant then proceeded to inform the Magistrate that his recollection of what occurred at the directions hearing differed from that of the appellant and that he understood that the question of whether the appellant could cross-examine AME was to be determined on the day of the hearing, that did not have the consequence of the Magistrate revisiting whether the appellant should be permitted to cross-examine AME. As the transcript bears out, beyond counsel for the respondent raising s 151 DFVPA as being engaged by reason that AME was a “protected witness” for purposes of the section, the Magistrate ultimately was not called upon to exercise his discretion under the section to disallow the appellant cross-examining AME, as that had already been decided by the Magistrate.

[99] It is on that basis that in my view the appellant’s argument is misconceived because whilst the submission was made by counsel for the respondent that AME was a “protected witness” for purposes of s 151 DFVPA, and whilst in the exchange with counsel the Magistrate appears to have accepted that to be so, that ultimately had no bearing on whether the appellant was allowed to cross-examine AME. That determination had already been made by the Magistrate and in those circumstances it cannot be said that the Magistrate, in error or otherwise, exercised the discretion contained in s 151 DFVPA to prohibit the appellant from cross-examining AME. Rather, the Magistrate conducted the hearing on the basis that the appellant would not be cross-examining AME and therefore the appellant was not afforded the opportunity of doing so. The application was ultimately heard and determined on the materials before the court and oral submissions without any sworn evidence being called.  For these reasons this ground of appeal is not made out.

[100] The argument raised by the appellant is more relevant to whether the appellant was denied a fair hearing of his application by not being permitted to cross-examine AME. Whilst it is therefore unnecessary for me to decide, I do however agree with the appellant’s submissions that AME was not a “protected witness” for purposes of s 151 DFVPA. The term “protected witness” is defined in s 150 DFVPA to mean either an aggrieved, a child or a relative or associate of the aggrieved who is named in the application. Further, s 151(1) is clear in its terms. The section is expressly stated to apply to a protected witness giving evidence in a proceeding and a respondent to the proceeding wishing to cross-examine the protected witness. Whilst I accept the argument that AME, as the aggrieved, was a protected witness in so far as her application was concerned, she was a respondent to the appellant’s application. The appellant’s application was heard after AME’s application had been decided. It was therefore a separate hearing. Having regard to the terms of s 151(1) DFVPA which expressly apply the section only to a respondent in a proceedings wishing to cross-examine a protected witness, as the respondent to the application, in my view,  AME was not a “protected witness” and therefore s 151 DFVPA did not confer on the Magistrate a discretion to prohibit the appellant from cross-examining AME.

Whether the appellant was given adequate opportunity to conduct his case

[101] The hearing and determination of the appellant’s application for a protection order proceeded on the materials relied upon by each party coupled with their oral submissions. Although the appellant had expressed to the Magistrate his understanding that he would be allowed to cross-examine AME and that he was proceeding on that basis, the Magistrate did not require AME to give sworn evidence. It is clear from the submissions made by the parties that there were many factual disputes between the parties relating to both what the appellant alleged in his material and oral submissions and what AME alleged in her material and oral submissions resisting the making of a protection order against her. It is abundantly clear from the manner in which the hearing progressed, that the matters in dispute as between the parties involved issues of credit which, again in my view, were incapable of being determined on the materials and submissions alone. Highlighting that, it is noteworthy that AME’s counsel on a number of occasions challenged the appellant’s oral submissions on the basis that he was either misrepresenting the facts, that he was exaggerating or that he was not telling the truth. Those complainants alone squarely raised the appellant’s credit as a critical issue in determining his application. Of course counsel for AME was perfectly entitled to do so. It is how those issues of credit came to be resolved which is crucial to whether the appellant received a fair hearing.

[102] There are a number of examples of where the appellant’s credit was challenged during his oral submissions. I have set out at [92] above an extract from the transcript as but one example of where AME’s counsel complained to the Magistrate that the appellant was being untruthful in his submissions. Objection was also taken to the appellant’s submission regarding some mobile phones which the appellant claimed to have signed over to AME.  That submission was described by AME’s counsel as a misrepresentation of the facts and rather ominously that the appellant was “walking down some very dangerous territory misleading this court about the true set of facts”. Somewhat presciently the appellant submitted to the Magistrate that on this particular topic there was a “difference of opinion on the facts” which the Magistrate responded “that’s why I’m sitting here”.[34]

[103] As to the occasion commonly described in the hearing as the “banana incident”, which the appellant relied upon as an act of domestic violence in support of his application, reliance was placed by AME on previous statements the appellant had made in respect to this incident which it was contended were inconsistent with the appellant’s oral submissions. That incident was purportedly recorded by another witness whose affidavit was relied upon by AME, and it was submitted both by reference to the recording as well as the previous statements the appellant had made about the incident, that the appellant was engaging in a “bit of exaggeration”. In the course of submissions AME’s counsel also took the liberty of raising with the Magistrate the question of costs were ultimately the appellant’s application to be dismissed. It was submitted that costs should be ordered against the appellant, in part, because much of what the appellant had asserted in support of his application was deliberately false. The appellant in turn refuted a number of the allegations raised by AME both in her materials and in oral submissions, asserting that they were also a fabrication.

[104] What the hearing of the appellant’s application also reveals is the appellant’s limited understanding of the procedure by which the application was being heard and determined. His lack of understanding manifested itself throughout the hearing and, to a large extent, mirrored the appellant’s lack of understanding in the hearing of AME’s application. For example, at the commencement of the hearing the appellant was asked whether there was going to be oral evidence. He replied “No, there’s the evidence I’ve submitted earlier”. It is doubtful that the appellant had any idea what was meant by “oral evidence”. Indeed, shortly after being asked that he informed the Magistrate that he was under the impression he would cross-examining AME and had proceeded on that basis. More pertinently, the appellant was not given an explanation by the Magistrate what the term “oral evidence” meant or the differences in procedure were the appellant to elect to give oral evidence. In particular, it was never explained to the appellant that he was entitled to give evidence from the witness box to adduce evidence of those matters to which objection had been taken or which he had been precluded by the Magistrate from giving evidence about, either because it was not in his affidavit or it was evidence from the bar table.

[105] I have set out earlier at [92] the extract of the transcript relating to the objection taken to the appellant adducing a recording which the appellant said he had only recently come into possession of and which he said would support his submission that AME deliberately had his electricity disconnected. The Magistrate refused to allow the appellant from adducing that evidence on the basis that it did not form part of his materials. There are several other examples of where the Magistrate refused to allow the appellant to make submissions on matters the appellant obviously believed were important to his case. For example, the appellant said in submissions that following another incident when he alleged AME had been violent towards him that he had trouble sleeping for several weeks. When asked by the Magistrate whether he had any evidence of trouble sleeping the appellant replied “just what I am saying your Honour” which the Magistrate disallowed as evidence from the bar table.[35] The appellant also sought to adduce an email which he submitted would place a particular comment he admitted making about AME in its proper context. The Magistrate disallowed the appellant from doing so, again on the basis that he was raising it from the bar table.[36]

[106] Also demonstrating the appellant’s limited understanding of the process by which his application was being determined, Counsel for AME was permitted to rely upon a document which had been provided to the court under a subpoena. The appellant objected on the basis he had not seen the document. The argument which then followed indicates that another Magistrate had granted leave to the parties to examine the subpoenaed documents. The appellant said that he did not understand the consequence of that order and therefore had not inspected or copied any of the subpoenaed documents. He informed the Magistrate that he did not know how to get them and ultimately complained that it was “a bit low to be throwing it in now”.[37]

[107] As with AME’s application, the appellant’s application for a protection order was conducted “on the papers” in the sense explained earlier. Despite the significant factual disputes between the parties, the appellant was precluded from cross-examining AME on his application and he was given no explanation in terms he might have understood as to his right to give sworn evidence in support of his explanation and the consequences for him were he to elect to do so. It is also concerning that the appellant, as a self-represented litigant, was on a number of occasion prohibited from making submissions or relying upon documents or recordings by reason that they either had not formed part of his materials or because the appellant was purportedly giving evidence from the bar table.

  [108] I am satisfied from the conduct of the proceedings that the Magistrate failed to comply with his obligation of ensuring the appellant was provided an adequate explanation, in terms he understood, of the process by which the hearing would be conducted and the appellant’s rights in terms of giving and objecting to evidence. The appellant had assumed he would be cross-examining AME as part of his application. The Magistrate proceeded to hear the application on the basis that the appellant would not be allowed to cross-examine AME. The conduct of the hearing on that basis was in error. The appellant was not afforded procedural fairness in the decision of the Magistrate to conduct the hearing by disallowing the appellant from cross-examining AME. That was a fundamental error which deprived the appellant of a fair hearing of his application.

[109] Determining the appellant’s application for a protection order involved both issues of credit and resolving factual disputes between the parties. The Magistrate’s failure to provide to the appellant sufficient explanation of the process by which his application would be determined and his rights in terms of giving and challenging evidence deprived the appellant of a fair hearing. Therefore I am satisfied that ground 3 of appeal is made out and on that basis the appeal against the order refusing to make the protection order be set aside. The order that the appellant pay AME’s costs is also set aside.

[110] Whilst I have the power to undertake my own review of the evidence and determine for myself whether a protection order should be made against AME, given the significant issues of credit which were raised by the parties on the hearing of the application and the fact that there has been no testing of the evidence through cross-examination, it is appropriate, in my view, that the matter be remitted to the Magistrates Court for rehearing by another Magistrate.

[111] The appellant also raises one further ground of appeal asserting that the Magistrate displayed a perceived bias in his conduct of the hearing. The respondent concedes that certain comments made by the Magistrate in the course of the hearing were “robust” and that some of the language used by the Magistrate was “not appropriate in a professional arena”. There are a number of examples of comments made by the Magistrate during the hearing which might be considered injudicious, even accepting that the appellant was self-represented. However given my conclusion with respect to ground 3 of appeal it is unnecessary that I determine whether or not the Magistrate displayed bias towards the appellant in his conduct of the hearing.  

Conclusion

[112] In respect to appeal number 170 of 2018 I make the following orders:

  1. The appeal is allowed.
  1. The order made in the Mount Isa Court on 14 June 2018 refusing the appellant’s application for a protection order and the order that the appellant pay the respondents costs are set aside.
  1. The application for a domestic violence order by the appellant is remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

  1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

Footnotes

[1] Affidavit of Anderson Telford filed 12 September 2018

[2] R v Tait [1999] 2 Qd R 667 at 668; R v Mundy [2011] QCA 7, per Fraser JA at p.2

[3] DJL v Central Authority (2000) 201 CLR 226 at 246 at [40]

[4] GKE v ETU [2014] QDC 248 at [2]-[3]

[5] Allesch v Maunz (2000) 203 CLR 172 at 180

[6] Fox v Percy (2003) 214 CLR 118 at 25

[7] T. 1-4 l.41 – T. 1-5 l.13

[8] T. 1-11 l.30 – T. 1-13 l.24

[9] T. 1-23 l.1 – T.1-24 l.2

[10] T. 1-41 l.1 – T. 1-42 l.34

[11] T. 1-43 ll.23-47

[12] T. 1-53 l.45

[13] T. 1-56 l.27 – T. 1-59 l.47

[14] Decision p.3 ll.18-20

[15] Decision p.3 ll.28-35

[16] Decision T. 6 ll.10-14

[17] T. 1-67 ll.14-34

[18] S 41 DFVPA defines the term "cross application" by reference to ss 41A (1)(b), (2)(d)(ii) and (3)(c) DFVPA

[19] S 32CA Acts Interpretation Act 1954 (Qld)

[20] Domestic and Family Violence Protection and Another Act Amendment Bill 2015 – Explanatory Notes p.8

[21] Domestic and Family Violence Protection Bill 2011 – Explanatory Notes pp 2-3.

[22] See for example Uniform Civil Procedure Rules Chapter 12, Part 6

[23] Re Bui and Federal Commissioner of Taxation [2008] AATA 666, at 413

[24] Palmer Tube Mills (Aust) Pty Ltd v Semi Semi; Transport Accident Commission v Streicher [1998] 4 VR 439 at 449

[25] Supra

[26] DMO v RPD [2009] QDC 92 at [6]

[27] (1998) 196 LSJS 488

[28] Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 at [28]-[29]

[29] T 1-37 ll. 13-38

[30] T 1-23 ll. 21-26

[31] T. 1-7 l.34 – T. 1-9 l.46

[32] T. 1-49 l.45 – T. 1-52 l.5

[33] 1-106 l.4 – T. 1-108 l.34

[34] T. 1-44 ll.27-33

[35] T 1-38 ll.36-47

[36] T 1-77 l.18 – T 1-78 l.28

[37] T. 1-91 l.9

Close

Editorial Notes

  • Published Case Name:

    AJC v Constable Kellie-Ann Gijsberten; AJC v AME

  • Shortened Case Name:

    AJC v Gijsberten; AJC v AME

  • MNC:

    [2019] QDC 195

  • Court:

    QDC

  • Judge(s):

    Lynham DCJ

  • Date:

    08 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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