Dufficy v Berry[2006] QDC 252

[2006] QDC 252

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 503 of 2006

BRISBANE

DATE 05/06/2006

ORDER

HIS HONOUR:  This is an appeal under section 222 of the Justices Act 1886 by Thelma May Dufficy against the dismissal by a Magistrate on 24 January this year following a hearing that day of a proceeding under the Peace and Good Behaviour Act 1982 ("the Act").

On 6 October 2005 the appellant swore the following complaint:

"The complainant and the defendant live in a Queensland Housing Commission cluster of units in Mansfield.  On 4 October 2005 the defendant's daughter Lauren rattled the wooden gate near the complainant's unit at about 8.30 to 9 p.m. and created considerable noise as dogs started barking.  The complainant got up from her bed to investigate the noise and was hosed by the defendant who was standing nearby with the garden hose.

On 6 October 2005 at about 8 a.m. the defendant approached the complainant near her car and said, 'You want to be careful or you might wake up with a knife in your gut.'  The complainant is now in fear of her."

The making of that complaint followed the appellant's visit to police for the third time in as many days in relation to the respondent, Valerie Esmae Berry.  On 4 October, this was in relation to the hosing.  The next occasion was in relation to the installation of some kind of security lighting by Ms Berry which the appellant considered created a light nuisance for her.

At the hearing before the Magistrate the appellant was represented by Dr Jensen, then practising as a solicitor, which has some significance as will appear.  Ms Berry was self-represented.  If she had any idea of the right procedure to follow in the Court she gave a very good impression of not understanding the procedure.  This placed the Magistrate in the awkward but unfortunately increasingly familiar position of having to attempt to do justice according to law with one side "very ably represented", to quote the Magistrate, and the other side bereft of legal or other assistance.

In what was undoubtedly intended as general guidance to Ms Berry the Magistrate at page 17 of the transcript referred to the possibility of an alibi defence:

"You'll need to say to her your version...you weren't there, that you were in Hawaii having holidays at the time.  I don't know what your case is, but you will need to make sure you put it to her.  Do you understand?"

Sure enough, not in relation to the hosing incident but in relation to the spoken threat, there was an alibi suggested in the form of Ms Berry being out shopping at 8 a.m. on 6 October last year.  There was no complaint and nor could there have been, in my opinion, regarding the Magistrate's contribution just quoted, but there was complaint regarding her repeated encouraging of a resolution of the matter whereby cross-orders might be made.

During the cross-examination of the appellant by Ms Berry the Magistrate at page 23 made the comment:

"Well, see, think about it this way.  I mean, if you don't want to cause her any more stress, you can put a without admission consent order in place, if you really don't want to cause her any more stress.",

to which Ms Berry, according to the transcript, said:

     "I don't."

A few lines further down the page the Magistrate said:

     "It seems to me that there may be the basis for a cross-order.",

having previously suggested to the respondent that:

     "You should apply for a cross-order potentially if what you say has happened really has happened."

The Magistrate returned to that theme later on.

Mr Winn, representing Ms Berry today, does not contend that the Magistrate's proposal for cross-orders (by consent or otherwise) had some legal justification he can point to.  In my opinion it's clear that the Magistrate was attempting to arrive at a resolution of the unpleasantness that had arisen where these two women live on a basis that would not see one emerging a victor, the other crushed and humiliated.  I would regard the Magistrate's approach as a commendable one pursued in the hope of putting an end to the unpleasantness of litigation.

Ms Berry was not interested in taking up the Magistrate's proposal and Dr Jensen on behalf of his client opposed it.  He is probably correct that a perusal of the rather confusing transcript may not reveal a basis for an application by Ms Berry, but as things developed she hardly had the opportunity, if there was a case she could have made in support of a putative application of her own, to present it.

She had asked this question in cross-examination of the appellant at page 25:

     "And did you then run off screaming, `I'll get even with you Val Berry.'"?

The Act has been the subject of consideration in the Court of Appeal in Laidlaw v. Hulett [1998] 2 QdR 45.  That established, contrary to the Stipendiary Magistrate's apparent view, that the standard of proof was not the ordinary civil standard but the special "Briginshaw" civil standard which has regard to the seriousness of the allegations to be established.  The Magistrate here appears to have clearly had in mind the ordinary civil standard of proof on the balance of probabilities and in that regard, as Mr Winn says, appears to have favoured the appellant rather than disadvantaged her.

At the trial, given the common situation of a court facing conflicting accounts of protagonists, both without corroboration, Dr Jensen had suggested to the Magistrate as a way of resolving the conflict that Ms Berry's evidence regarding her alibi was unsatisfactory, involving vacillation as to whether at 8 a.m., or thereabouts, on 6 October last year she was at the shops or still at home preparatory to leaving for the shops.  That seems to me a legitimate forensic approach.  Her Honour's response was:

     "I am not satisfied that a lot turns on Ms Berry's evidence about alibi/being at the shops, but she certainly says she was there.  I do not specifically find against Ms Dufficy with respect to this point.  I simply say that I have one person saying A and another person saying B and I have to be satisfied on the balance of probability that it occurred and I am not satisfied in the present circumstances that Ms Dufficy has discharged the onus.  I am not finding against her, I am simply saying that I am not able to make a finding with respect to that allegation.

     So that they are the two allegations that are the basis upon which the peace and good behaviour application is brought and, for the reasons that I have set out, I do not find the complaint is made out and I dismiss the complaint for the reasons that I have put on record."

It is an unsatisfactory situation, and I think relatively rare, but certainly not unprecedented, that a judicial officer is unable to resolve conflict of the kind encountered here. It is the responsibility of judicial officers to do just that, difficult as it will very often be.

While Mr Winn focused on section 6(3) of the Act:  "Upon a consideration of the evidence the Court may (a) dismiss the complaint or (b) make an order that the defendant should keep the peace and be of good behaviour for such time specified in the order as the Court deems fit", emphasising the discretion which the Court has, Dr Jensen focused more on subsection (1): "The Magistrates Court before which the defendant appears in obedience to the summons or is brought pursuant to the warrant, as the case may be, shall hear and determine the matter of the complaint."  His submission is that the Magistrate did not do that and ought to have done so.  It is not simply "the complaint" which must be determined, but "the matter of it".

Many would think the outcome surprising in that one would have expected that Ms Dufficy's evidence would in terms be accepted or rejected.  It might be rejected because the appellant was thought to have been confused or for some relatively innocent reason or - what one might think more likely (and inevitable if Ms Berry were believed) - because it was a wicked lie formulated and pursued vigorously and consistently. The Magistrate made no comments about Ms Berry's evidence except to note its existence.  It is somewhat odd to find the complaint dismissed in circumstances where the Magistrate had clearly been considering an outcome which would have included a cross-order, one of the kind which the appellant sought against Ms Berry.  What the Magistrate's duty was under section 6(1) was to "hear and determine the matter of the complaint".

I am troubled by the outcome here and seriously troubled. The Magistrate was plainly concerned for Ms Berry as an unrepresented litigant.  No judicial officer relishes handing down a decision that appears to prefer the party with the advantage of able representation over a self-represented opposition apparently lacking any real idea of how best to present her case.  She was plainly conscious of the disadvantages of inviting disharmony in the community and an outcome involving only an order against Ms Berry, apparently feeling that not all of the wrongs may have been attributable to one side.

She would have found the evidence difficult to assimilate. The transcript shows she had a good deal of trouble getting the hearing to proceed according to the rules as she thought them to be.

She became sufficiently confused at page 38 of the transcript to interrupt Dr Jensen in the course of his cross-examination of Ms Berry in saying to him, "This is re-examination.  It's got to arise out of cross-examination.  It's not just a chance to rerun your whole evidence-in-chief," whereupon Dr Jensen reminded the Magistrate that it was indeed cross-examination that was going on.

In some way then I think the Magistrate failed to exercise the judicial function under section 6(1) of the Act. 

If it matters, in respect of the requirements of section 4, Dr Jensen has abandoned anything to do with the hose incident, which the Magistrate found had occurred, but by way of something accidental or unintended.  The wording is curious.  An assault is not required, rather a threat of an assault.  The assumption no doubt is that if an assault in the sense of one under section 245 of the Criminal Code happens, it will be prosecuted as such rather than resort being had to the precautionary approach of the Act, the history of which is illuminated in McPherson JA's judgment in Laidlaw.

The statement I have quoted above, allegedly made on the 6th of October 2005, is pointed to as a threat.  There are various ways of looking at that.  As I have noted during argument, accepting that it was taken by the appellant as a threat, it might have been taken in other ways, for example, as a suggestion that some other person other than Ms Berry might be driven to harm the appellant.

Mr Winn suggests that it may not have been reasonable for the appellant to be "in fear" for the purposes of section 4.  It is not known what the Magistrate, who had not the benefit of closing submissions of any value from Ms Berry, would have made of that particular issue.

The question arose whether further evidence should be admitted on the appeal against the possibility that the court would not do as Dr Jensen asked and substitute its own finding opposite to that of the Magistrate in respect of the alleged threat of the 6th of October 2005.

No instance was cited to the court of an appeal court resolving a conflict of evidence in this way where the Briginshaw onus of proof applied.  I am certainly not prepared to take that radical step today.  The matter requires further consideration and, in my opinion, on the basis of the fresh evidence the appellant wants to adduce, which is to the effect that at the time when Ms Berry says was the sole occasion when the paths of the two women crossed on that day shortly before 10 a.m. or thereabouts, she was engaged in a consultation with her solicitors, specifically with Dr Jensen. It seems there is evidence available to that effect.  If there is to be further evidence, and I think in the circumstances that it ought to be admitted, consistently with the rules about fresh evidence, then there is going to be further evidence from Ms Berry's side, too.

There may be more than this, but Mr Winn has foreshadowed that at the least she would want to get into evidence a receipt or certain receipts which may serve to establish her whereabouts at the crucial time.  Reference was made to the possession of those before the Magistrate, but Ms Berry did not seek to tender them.

A possibility is that this court would receive that further evidence, which could not happen today.  It seems to me that although it may cancel itself out, as Mr Winn suggests, it may, by the same token, provide a basis on which the Magistrates Court, and perhaps the same Magistrate, although this court is neutral about that - might resolve the conflict which ought to have been resolved about whether the statement which the appellant attributes to Ms Berry on the 6th of October was made by her on the balance of probabilities (with the bolstering feature flowing from Briginshaw's case and like authorities).  This ought to happen in the Magistrates Court, in my view.

The appeal will be allowed and the matter remitted to the Magistrates Court under section 225(2) of the Justices Act so that that court may proceed to determine the matter and perhaps any cross-application pursuant to section 6 of the Act.

The additional evidence which is being foreshadowed by the parties' representatives today ought to be received and I say that without intending to limit any further evidence that may be received.  It was stated by Mr Winn that it seems nothing untoward has occurred since the 6th of October last year.  If it had, no doubt the court would have heard about it.

One consequence of the matter being remitted to the Magistrates Court may well be to provide some assurance if there is any risk of anything untoward happening, that nothing untoward does eventuate in the interim.

...

Having heard submissions from Dr Jensen and Mr Winn, the court notes the desirability that if possible another Magistrate hear the matter.

...

The costs of the first Magistrates Court hearing should be reserved for the Magistrate who undertakes the second hearing.

The respondent is ordered to pay the appellant's costs of the appeal, but is to have an indemnity certificate under the Appeal Costs Fund Act.