Wiltshire v Imoda[2012] QDC 345

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal, brought under s. 222 of the Justices Act 1886 from the order of a magistrate striking out proceedings on 3 complaints under Peace and Good Behaviour Act 1982 (the Act).

2. [2]
   The appeal must be allowed because the learned magistrate purported to strike out the application without hearing and determining it.

3. [3]
   The long title of the Actis:

An Act relating to orders to keep the peace and be of good behaviour; to provide for offences in connection therewith; and for purposes subsidiary thereto

Part 2 of the Peace and Good Behaviour Act 1982

4. [4]
   Section s. 4(1) provides that a person (the complainant) may complain to a justice that a person has threatened—

1. (a)
   to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or
2. (b)
   to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or
3. (c)
   to destroy or damage any property of the complainant; or
4. (d)
   to procure any other person to destroy or damage any property of the complainant;

and that the complainant is in fear of the person complained against (the defendant).

5. [5]
   By subs. 4(2), a person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.

6. [6]
   The justice must then make a judgment. If satisfied the “matter of complaint” is substantiated, and if the justice considers it reasonable in the circumstances for the complainant to have the relevant fear, the justice may issue a summons or a warrant to bring the defendant before the Magistrates Court“to answer the complaint and to be further dealt with according to law”: subs 4(3).

7. [7]
   For the purpose of this exercise, the justice may inquire and receive evidence: s. 5.

8. [8]
   By s. 6 of the Act, the Magistrates Courtbefore which the defendant appears in obedience to the summons or is brought pursuant to the warrant, “shall hear and determine the matter of the complaint”: subs. 6(1).

9. [9]
   By subs. 6(3), upon a consideration of the evidence, the Court may dismiss the complaint or make an order that the defendant shall keep the peace and be of good behaviour. The order made by the Court may contain such other stipulations or conditions as the Court thinks fit: subs. 6(4).

10. [10]
    The decision and consequent action of the justice enliven the jurisdiction of the magistrate, which is to hear and determine the matter of complaint. The magistrate may dismiss the complaint or make a peace and good behaviour order.

11. [11]
    The Peace and Good Behaviour Regulation 2010 requires a complaint under section 4 of the Act to be in the approved form and include, among other things, the grounds relied on to make the complaint; and the facts on which the complaint is based: (s. 8).

The complaints

12. [12]
    The appellant swore three complaints. One bears a court date stamp of 20 June 2012 naming both respondents as defendants. Apparently upon advice from the court, he swore a separate complaint against each respondent on 22 June 2012.

13. [13]
    On the complaints dated 22 June 2012, the grounds set out were:

14. [14]
    The appellant attached other materials to the complaints.

15. [15]
    The justice must have been satisfied the matter of complaint was substantiated because summonses issued on 22 June 2012 requiring Imoda and Grovesto appear on 29 June 2012 at Kingaroy. On that day the magistrate set the hearing down for 5 August 2012 noting the complainant (appellant) refused to go to mediation.

The hearing before the Magistrates Court

16. [16]
    On 5 August 2012, a different magistrate sought particulars from the appellant of the facts asserted and, ultimately ordered the complaints to be struck out.

17. [17]
    Given the state of the complaints and materials, the learned magistrate cannot be criticised for seeking some clarification by way of particulars from the appellant.

18. [18]
    During the course of the discussion that followed, the appellant told the learned magistrate:

1. he had been assaulted; he had complained to police and his statement was with the materials filed;

2. there had been “stalking a property”, but no details of that emerged during the discussion;

3. a person called Tanner, who was present in court, had “been co-opted” by the respondents “to do something”. He had been seen walking up and down the fence with the respondent, Groves.

4. property had gone missing to the value of $6,000, about which he had complained to police;

5. people rode trail bikes and drove vehicles along the boundaries all the time which affected the peaceful occupancy of the property;

6. Groves’ conduct had caused the loss of opportunities to sell the property and “there’s likely to be further violence and assaults if the matter goes on”.

19. [19]
    The learned magistrate also heard, in a preliminary way, from the respondent Groves. His Honour made it plain he had not started hearing the trial yet and was “not sure I’m going to”.^[1]

20. [20]
    The learned magistrate again asked the appellant, “Is there any specific threat you can point to?”^[2]The appellant told the magistrate again of the assault, which he said happened three years ago – “invaded the home and belted the hell out of me over a fencing dispute and these trail bike issues and if he’s done it once, he’ll do it again”. He also repeated his suspicion regarding theft of property and referred to recent trail bike riding.

21. [21]
    Upon being pressed for a particular incident of threatening behaviour the appellant told the learned magistrate Mr Tanner had “gone onto both properties and fired shotgun blasts to try and intimidate me..”.^[3]  This, he said, had happened about 12 months before and about 6 months before the hearing date.^[4]

22. [22]
    The respondent Grovesspoke to the magistrate about the use of motorbikes on his property and generally contested the allegations of the appellant.  All parties had filed affidavits in the Magistrates Court. It is sufficient for present purposes to record that the respondents strongly contested the appellant’s assertions.^[5]

23. [23]
    The learned magistrate told the appellant, “you haven’t been able to point to any … incident of a threat … other than something that happened three years ago.”^[6]

24. [24]
    His Honour continued, “Now, any complaint under this Act has to be laid within 12 months of the incident. … You’re .... two to three years out of time.”^[7]

The Magistrate’s reasons for striking out the complaints

25. [25]
    The learned magistrate’s reasons for striking out the complaints do not include consideration of the alleged assault on the appellant in 2009. This seems to have resulted from two errors about what may be considered in the hearing and determination of a complaint under the Act.

26. [26]
    First, his Honour considered that the Act came into play “where there is a threat of assault or bodily injury, or where there is destruction or damage to property of the said complainant. It’s very specific in that regard. Any actual assault that takes place has to be dealt with in the criminal Courts by the police and the Crown.”^[8]

27. [27]
    The learned magistrate did not overlook the allegation. After referring to the complaints about motorcycles the reasons include: The only incidents of violence that Mr Wiltshire can point to is something that occurred in 2009 and in that case he alleges an actual assault. So there is that difficulty, there is no basis for me to grant an order in the absence of some specific threat.”^[9]

28. [28]
    Certainly “the matter of the complaint” that the magistrate is required to hear and determine under s. 6 is the threat of injury to person or property and the fear of the complainant. But the commission of an assault is surely relevant even if only as suggesting a reason why the complainant may fear a breach of the peace in future.^[10]  In Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 at 52, McPherson JA said s. 4 of the Act “is concerned not with the criminality of the acts in question, but simply with their tendency to promote breaches of the peace.”

29. [29]
    Second, the learned magistrate considered that the alleged assault could not be taken into account because any complaint about it, under the Justices Act 1886, would be out of time. The reasoning was that s. 8 of the Act, broadly put, applies the Justices Actto a proceeding under the Act. And under the Justices Act, proceedings for a simple offence must be commenced within 1 year from the commission of the offence. 

30. [30]
    I do not see why those provisions should lead to that conclusion. Mr Smith, who appeared in this court for the appellant, in his written outline conceded the correctness of the magistrate’s view but provided no authority for the proposition.

31. [31]
    The relevant part of s. 52 of the Justices Actprovides:

32. [32]
    Section 8 of the Act provides:

8 Application of Justices Act

Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of the prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 6 as if such complaint were a complaint in respect of such an offence.

33. [33]
    The complaint under the Act is not a complaint of the simple offence (if that is what it was) of an assault committed in 2009. It was the complaint of the threat of violence and the fear of a breach of the peace. Section 8 of the Act does not affect the relevance of evidence of an event to the hearing and determination of the matters of complaint. Whether evidence of an assault in 2009 tends to prove a matter in issue in an application under the Act is for the court hearing the complaint to decide.

34. [34]
    This view is reinforced by the decision in Laidlaw v Hulett. In that case, the majority concluded the application of the Justices Actto a proceeding under Part 2 of the Act did not convert it to a criminal proceeding. The criminal standard of proof did not apply to a proceeding on a complaint sworn under s. 4 and being heard and determined under s. 6.

35. [35]
    The learned magistrate did not, apparently, consider the allegation of discharging a firearm. As Mr Smith points out in his outline, among documents attached to the complaint, the following is recorded:

INCIDENT REPORT – June Queen’s Birthday weekend 2012

…..

Saturday 9 June- …..

….

Gun shots at Imodas during the afternoon from shotgun & rifles. Van doing wheelies at front of Groves all afternoon & was like a bloody war-zone.

36. [36]
    “Continued use of firearms” is the first allegation included on both complaints dated 22 June 2012.

37. [37]
    Any preliminary assessment of the application required consideration of this, possibly decisive, allegation.

38. [38]
    In his reasons, the learned magistrate said, “I’ve asked Mr Wiltshire to give particulars of what he says is the threat that gives rise to jurisdiction to make an order.”^[11]Despite the language used, I do not conclude the learned magistrate saw the preliminary inquiry as going to jurisdiction. The court’s jurisdiction derived from the decision and action of the justice before whom the complaint was sworn and who issued the summonses.

39. [39]
    As I have set out, Part 2 of the Act establishes a two step process. The first step, which involves a decision and consequent action by the justice, is no mere formality. The justice must be satisfied the complaint is substantiated. The justice may cause inquiries to be made and receive such evidence as thought fit: s. 5. The justice must consider whether it is reasonable in the circumstances for the complainant to have the fear of the defendant complained of: subs. 4(2A). The justice may issue a summons to appear or a warrant to apprehend and bring the defendant before a court “to answer the complaint and to be further dealt with according to law.”

40. [40]
    If the justice completes step one by issuing a summons or a warrant, s. 6 provides that the Magistrates Courtmusthear and determine the matter of the complaint.  This the learned magistrate did not do.

41. [41]
    If the Magistrates Courthas power to strike out the complaints without hearing and determining them, what test applies? Mr Smith has referred me to the Uniform Civil Procedure Rules rr. 292 and 293 (Summary judgment), Bolton Properties P/L v J K Investments (Australia) P/L[2009] QCA 135 and cases on the tests applicable in criminal and civil proceedings upon an application of “no case to answer”. Because of the errors I have discussed in the proceedings below, it is unnecessary to decide precisely what test should be applied by a magistrate should a party seek the striking out, without a hearing, of proceedings on a complaint under Part 2 of the Act. The opportunity to consider such an order would be rare, given the scheme of Part 2 as I have discussed it and the need, as will ordinarily arise, to determine the facts upon consideration of the credibility of witnesses. As the proceeding is civil, it is more likely the question would be whether the complaint has no real prospect of success and there is no need for a trial. But it is difficult to envisage a magistrate being so satisfied where there is an allegation which, if accepted, would tend to establish “the matters of the complaint”.

42. [42]
    The appellant’s case, so far as one can assess it on the materials before the learned magistrate and with the benefit of submissions from Mr Smith, reduces to the assertion that he fears both respondents will breach the peace based on a strongly contested allegation of a home invasion and assault in 2009 and the actions of third person discharging firearms within the past 12 months. The other complaints reduce to matters of nuisance behaviour among neighbours. Whether an order should be made will depend on the findings of the court, having heard the witnesses.

43. [43]
    This case has already taken up considerable time in two courts. But I cannot conclude the complaints have no real prospect of success, there having been no hearing of them. Nor, for the same reason, is there a full record upon which to rehear and determine the complaints on appeal. The proceeding must be returned to the Magistrates Courtunder Justices Acts. 225.

44. [44]
    The appellant seeks costs. It is necessary that the proceeding must be returned for hearing and determination if the parties do not otherwise resolve their concerns. In all of the circumstances, including the nature of proceeding, I decline, in the exercise of the wide discretion provided for in Justices Acts. 226, to award costs of the appeal.