Manning v Weston (Commissioner of Police (Qld))
[2008] QDC 222
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- Manning v Weston (Commissioner of Police (Qld))[2008] QDC 222
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Manning v Weston (Commissioner of Police (Qld))[2008] QDC 222
Manning v Weston (Commissioner of Police (Qld))[2008] QDC 222
DISTRICT COURT OF QUEENSLAND
CITATION: | Manning v Weston (Commissioner of Police (Qld) Intervener) [2008] QDC 222 |
PARTIES: | JOHN FREDERICK MANNING Appellant V KARINA LOUISE WESTON Respondent AND COMMISSIONER OF POLICE QUEENSLAND Intervener |
FILE NO/S: | Appeal No 17/07 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Maryborough |
DELIVERED ON: | 29 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 July 2008 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – where a Protection Order made under s 20 of the Domestic and Family Violence Protection Act 1989 (Qld) – where a “domestic relationship” existed between the parties – where various acts of violence are alleged to have been committed by the appellant against the respondent – where application made by police officer on behalf of respondent as an “aggrieved person” – where hearing conducted by Magistrate – where evidence of witnesses and cross-examination heard and where order then made against appellant. Domestic and Family Violence Protection Act 1989 (Qld) ss 14(3), 20, 63, 64, 64A, 65, 66 Justices Act 1886 (Qld) s 222 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Stevenson v Yasso (2006) 2 Qd R 150 Warren v Coombes (1979) 142 CLR 531 Whisprun Pty Limited v Dixon [2003] HCA 48 |
COUNSEL: | Mr W Kelly for the intervener The appellant appeared on his own behalf |
INSTRUCTOR: | Office of the Commissioner of Police (Qld) for the intervener |
- [1]This is an appeal pursuant to s 63(1) of the Domestic and Family Violence Protection Act 1989 (“the Act”) against the decision of the Acting Magistrate (“the Magistrate”) at Bundaberg on 6 September 2007 whereby he made a Protection Order against John Frederick Manning (“the appellant”) in favour of Karina Louise Weston (“the aggrieved”) and two other persons (“associates of the aggrieved”) to apply for a period of 2 years from that date.
Background:
- [2]The application for the Protection Order was made pursuant to the Act by a police officer on behalf of the aggrieved and associates of the aggrieved following his receiving a complaint and detailed material from the aggrieved concerning the appellant’s conduct to her and others. The application was heard by the magistrate on 6 September 2007 in Bundaberg.
- [3]At the hearing the police officer and aggrieved gave evidence setting out the appellant’s conduct relevant to the aggrieved and associates of the aggrieved together with a history of the relationship between the appellant and the aggrieved particularly during 2006 and 2007.
- [4]Part of the evidence included a 31 page document prepared by the aggrieved setting out in detail her relationship with the appellant and their many violent confrontations from in or about August 2006 to December 2006.
- [5]The court file also reveals a number of prior “Temporary Protection Orders” made by the Magistrate’s court at Bundaberg from August 2006.
Grounds of appeal:
- [6]The appellant’s grounds of appeal are somewhat difficult to decipher as is his “Outline of Argument” filed 1 October 2007 due to him being self-represented, but essentially they include the following:
- (a)Serious misconduct by the prosecution at the hearing in misleading a witness and “prevented the course of justice”;
- (b)Abuse of process;
- (c)Conflict of interest by the Magistrate Lavering who had presided in other matters before the Court concerning the appellant;
- (d)Attempting to prevent [sic] the course of justice on an earlier occasion by a Magistrate, Jennifer Batts;
- (e)General bias by the Magistrate Lavering against the appellant.
Appeal Hearing:
- [7]At the Appeal hearing the appellant was given the opportunity to make any further submissions in support of his grounds of appeal but indicated that he would rely upon his written outline.[1]
Intervener’s submissions:
- [8]On behalf of the Commissioner of Police as intervener it was submitted that the appellant’s claims against the Magistrate were not valid and that the magistrate gave the appellant every opportunity to present his case in response to the allegations made against him.
- [9]It was further submitted that the appellant’s complaints, that the application for the Protection Order was made during the period the appellant was in custody and therefore prejudicial to him, were without substance, as the application was made on behalf of the aggrieved following a lengthy statement made by the aggrieved to the police officer setting out the appellant’s alleged conduct in respect of his domestic violence to her and the application was appropriately made in accordance with the relevant section of the Act.[2]
- [10]Finally it was submitted that the appellant, was given every opportunity to respond to the application made before the magistrate; was provided with a full brief of the evidence by the complainant police officer and the aggrieved and the Magistrate made his decision accordingly. It was therefore submitted by the intervener that the appeal should be dismissed with costs.
The law:
- [11]Part 5 of the Act provides the mechanism by which appeals under the Act may be instituted and relevantly s 63 provides as follows:
“Appeals
- A person who is aggrieved by an order of a Magistrates Court or the Childrens Court constituted by a Childrens Court magistrate, or a decision of a magistrate—
- (a)to refuse an application for—
- (i)a protection order; or
- (ii)a revocation or variation of a domestic violence order (including a refusal to vary conditions imposed by the order); or
- (b)to make a domestic violence order; or
- (c)to revoke or vary a domestic violence order (including a variation of the conditions imposed by the order);
may appeal to the District Court at or nearest to the place where the order or decision was made.”
- [12]Provision is then made for the procedures to be followed in respect of the “Institution of appeal”; who has the right to appear at the hearing which includes “The commissioner” and that “An appeal under s 63(1) is by way of rehearing on the record …”.[3]
- [13]The powers of the court if it “allows an appeal” are:[4]
“(a) it may discharge or vary any order to which the appeal relates, as it considers appropriate; or
(b) it may make such order or decision as it considers should have been made, and every such order or decision shall take effect on and from the day on which it is made.”
General Principles:
- [14]In appeals of this nature the general principles upon which an appellate court must operate are well established. In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong and the Appeal Court although ultimately making up its own mind on the matter,[5] has due regard to such advantages that the court or tribunal at first instance had because of the opportunity to see and hear witnesses and to have the full consideration of all of the relevant evidence that was presented by the original hearing. On an appeal under s 222 of the Justices Act 1886 (and the nature of this appeal is in similar terms) this court must give due deference and attach a good deal of weight to the magistrate’s view: Stevenson v Yasso (2006) 2 Qd R 150 at para [36] per McMurdo P.[6]
- [15]Further to this:[7]
“An appellate court will not readily overturn a trial judge’s primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 –
‘67. However, normally, to secure reversal of a primary judge’s credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge’s decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (‘SRA’). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge’s conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge’s conclusion.’
In Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court’s role in drawing of inferences from proved or uncontested facts –
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’”
- [16]In respect of appeals from Justices the principle to be followed by an appellate tribunal would seem to be encapsulated in the statement by Andrews SPJ (as he then was) in Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 at 67 where he said after a comprehensive review of a number of authorities[8]:
“I am of the view that where findings are so expressed as to demonstrate mistake in the understanding of evidence or where findings as expressed have demonstrated a misunderstanding of the law applicable then this court may interfere with the decision.”
- [17]
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.[11] And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretion, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.’[12]”
Hearing by the Magistrate and his findings:
- [18]At the hearing:
- the magistrate heard sworn evidence from the applicant police officer on behalf of the aggrieved and associates of aggrieved;
- the evidence included a comprehensive affidavit sworn and filed by the applicant to which there were a number of annexures including a “31 page statement” of the aggrieved and other documentation relevant to the issues involved;
- the applicant was cross-examined by the appellant to this appeal on various aspects of his evidence and the written material accompanying it;
- the magistrate heard evidence on affirmation from the aggrieved (the respondent to this appeal) which included reference to her said “31 page statement” in which she set out various details of violent confrontations with the appellant over a number of months in 2006 to 2007;
- the aggrieved was cross examined by the appellant on her evidence;
- the magistrate heard final submissions from the respective parties and then delivered his decision.
- [19]In his decision the Magistrate:
- referred to that section of the Act which empowers a court “… to make domestic violence orders”;[13]
- decided that “a domestic relationship” existed between the aggrieved and the appellant;
- satisfied himself of the requirements under s 20(1)(a) and s 20(1)(b) of the Act by reference to the evidence before him; and
- made a Protection Order in form DV3 under the Act setting out the specific terms of the order and its duration.
- [20]On a review of the evidence before me and the submissions made I find that there was sufficient evidence before the magistrate entitling him to make the findings and the order he made and the appellant has not established to this court that the magistrate erred in reaching his decision on the principles set out in paragraphs [15] to [18] above. On the whole of the evidence before me I agree with the Magistrate’s findings and the order made.
- [21]It follows therefore that the appeal is dismissed and I confirm the order appealed against.
- [22]My orders are as follows:
- (i)The appeal is dismissed.
- (ii)In the exercise of my discretion I make no order as to costs.
Footnotes
[1] Trial Transcript (“T.T.”) page 13 lines 24-26.
[2] Section 14(3) of the Act.
[3] See ss 64, 64A and 65(1) of the Act.
[4] See s 66(1) of the Act.
[5] Aldrich v Ross [2001] 2 Qd R 235 at 257; Warren v Coombes (1979) 142 CLR 531 at 551; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327; Fox v Percy (2003) 214 CLR 118 at [29].
[6] Aldridge v Ross Devries v Australian National Railways Commission.
[7] See paragraph [6] of Walker v Durham & Anor [2003] QCA 531.
[8] Including Smith v Smith, ex parte Smith [1950] Qd R 113 at 120; R v Robertson (1980) 2 A Crim R 369; and R v Free [1983] 2 Qd R 183. See also the comments by Thomas J at pp 79 and 81 of the judgment, and in particular the dicta of Gibbs J (as he then was) in Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378, 381.
[9] House v The King (1936) 55 CLR 499 at 505.
[10]Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 at [21].
[11] See Norbis v Norbis (1986) 161 CLR 513 at [518]-[519], per Mason and Deane JJ.
[12] House v The King (1936) 55 CLR 499 at [505], per Dixon, Evatt and McTiernan JJ.
[13] Section 20 of the Act.