LJO v Commissioner of Police[2013] QDC 193

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an appeal from a decision of a Magistrate made on 13 December 2012, making an order under the Domestic & Family Violence Protection Act 1989 against the appellant, for a period of two years.

Section 209 of the Domestic & Family Violence Protection Act 2012 provides that an appeal against an order or decision under Section 63 of the 1989 Act is taken to be an appeal under Section 165 of the 2012 Act and that section which is within Part 5 Division 5 of the 2012 Act sets out who may start an appeal and how to start one.

Section 167 provides that the Police Commissioner has a right to appear and be heard before the Appellate Court on an appeal under this Division. The Commissioner has exercised that right.

Section 168 provides that the appeal is to be decided on the evidence and proceedings before the Court that made the decision being appealed. However, the appellate court may order that the appeal be heard afresh in whole or in part.

I have taken the liberty of asking for some further information from counsel from the Bar table, very limited in its scope. To that extent, the appeal is heard "afresh".

The application which gave rise ultimately to the order was made on 3 February 2012. The application was mentioned in the Magistrates Court in February, March and April of 2012. No temporary order was made at any of those appearances. On 30 May 2012, again no temporary order was made at a directions hearing. The application was heard before the learned magistrate over four hearing days, the first of which was 20 June 2012, and the fourth was the 13th of November 2012.

A temporary order was made at the end of the first day of the hearing, so the appellant was subject to a temporary order for that period of almost six months.

It's relevant, I think, too, that the application was on foot for that period of about 10 or 11 months before the order was made.

The Magistrate's decision was made under the 1989 Act, and his Honour considered carefully the reasons for acting under that Act. There was an issue with respect to the legislation, because the 2012 Act came into force during the hearing, in effect. The Magistrate decided that it would be against the interests of the appellant to hear the application under the 2012 Act and both parties take no issue with the proceeding having been dealt with under the 1989 Act.

I propose to look in some detail at the Magistrates reasons for decision before coming to the parts of the decision which are the subject of the appellant's attack.

His Honour set out at some length medical evidence relating to the appellant. The appellant had exhibited problems with alcohol and gambling over several years and displayed mood swings. A Dr Keogh had given evidence that he treated the appellant from September 2007 for Cushing’s disease and the learned Magistrate set out the symptoms of the disease and that it was, it seems, under control.

The aggrieved and the appellant had been married and had been in a long relationship. They separated on 29 August 2011. The appellant consulted a psychiatrist, Dr Jenkins, after the separation - and Dr Jenkins treated him for an adjustment disorder with anxious mood. The appellant was treated on medication. Dr Jenkins provided several letters and gave evidence, and there's no issue taken with the learned Magistrate's findings. Dr Jenkins observed no evidence of residual psychiatric symptoms and considered the appellant fit for work.

What the Magistrate did then was set out the relevant provisions of the 1989 Act. Section 20 of that Act provided:

"The Court may make an order against a person for the benefit of someone else (the other person) if the Court is satisfied that:

2. (a)
   the person has committed an act of domestic violence against the other person and a domestic relationship exists between the two persons; and

2. (b)
   the person is -

1. (i)
   likely to commit an act of domestic violence again; or

1. (ii)
   if the act of domestic violence as a threat - is likely to carry out the threat.”

Section 11 of the 1989 Act defines "Domestic Violence". The definition includes wilful injury and wilful damage to the other person's property. It also includes intimidation or harassment of the other person and indecent behaviour to the other person without consent. The definition also includes a threat to commit any one of those acts.

It may be of some relevance that the definition section goes on in subsection 2:

"A person committing domestic violence need not personally commit the act or threaten to commit it."

The record includes evidence of some threats by the appellant, but my assessment of the record and of the grounds for making the order that moved the learned Magistrate is that the primary basis for the order was evidence of intimidation and harassment of the aggrieved.

His Honour set out in some careful reasons his understanding of all of the relevant terms, and did so by reference to several District Court judgments. His Honour referred to Section 20(1)(b) of the 1989 Act and the decision of McGill SC DCJ in MAN v MAM (2003) QDC 398 where his Honour said, "'Likely' in my view does not in the statute mean more probable than not but it must at least involve a real, not remote likelihood, something more probable than mere chance or risk."

When coming, at the end of his judgment, to that question, his Honour found that on the balance of probabilities, it had been proven that the appellant had committed one or more act of domestic violence involving assaults, threats, intimidation and harassment against the aggrieved and relevantly that there exists a real, significant likelihood that the respondent, that is, the appellant, would commit an act of domestic violence against her in the future.

It is plain that the learned Magistrate applied a test for likelihood at least as strict as that enunciated by McGill SC, DCJ. His Honour also looked to dictionary definitions of the terms "harass"

Now, coming to his Honour's particular findings of domestic violence. He referred to an occasion where the appellant came home drunk and in essence, attempted to force himself sexually on his wife. That's a relevant matter, because it would be open to view that as an example of indecent behaviour to the other person without consent.

I should remark that that event obviously occurred a considerable period before the application was made. The learned Magistrate accepted evidence that the appellant, during the same event, put a pillow over the aggrieved person's face and that scared her. Her evidence was that he put the pillow over her face and told her how easy it would be to end her life.

The learned Magistrate said that the appellant's denial of that behaviour was not accepted. That was one of a number of findings against the appellant's credit.

The next incident referred to by the magistrate was at the family home where the appellant's sister was present - again, this was some years before the hearing. The learned magistrate accepted that the appellant removed his police handgun and pointed it at his wife as she sat in the lounge room with his sister and a child. The magistrate expressly did not accept the appellant's denial of pointing the service weapon as described.

The next relevant event occurred on 2 February 2012. The appellant and the aggrieved attended Relationships Australia in Bundaberg for their second counselling session. Evidence was given by the counsellor and by the aggrieved about this event.

Now, the evidence of the two women wasn't exactly consistent and Mr Todman, counsel for the appellant, argues that the better of the two accounts is that of the counsellor. He argues that the aggrieved has exaggerated the account of the appellant's disposition. There may be something in that, but nonetheless, the counsellor’s account is sufficiently damning of the appellant to have been a relevant matter for his Honour.

His Honour recounts the counsellor's evidence this way. His Honour said that the counsellor had testified that during the session with the appellant and the aggrieved, the appellant became very aggressive and while leaning forward in his chair, told the aggrieved he was going to move back into the house. She became upset and the appellant turned and looked at her and said, "Put a DV on me, I'll kill you anyway." 

Cross-examined about the degree of calmness or otherwise of the appellant when he said that, the counsellor would not agree that he was flustered. She said he was angry and that he repeated the threat

The learned Magistrate then refers to the appellant's account of this event - as having overstepped the mark and having made a stupid remark which meant nothing. There's also evidence that the appellant told people at the police station about this, and that was promoted as some indication of his remorse and awareness of his behaviour. As to that, the Magistrate said that the Court “finds the prompt appearance of the appellant on the day that the threat was made before his Superintendent has a measure of attempted self protection"

But the learned Magistrate concluded that the self reporting did not extinguish the unlawful acts that constituted a breach of the criminal law involved in the assault, and also constituted an act of domestic violence.

I depart from the learned Magistrate's reasons there by commenting that in my respectful commission, that's correct. Not only is there concern in the way the appellant tried to describe the event, there is concern about his ability to conduct himself in a way which may be thought to be to his advantage in circumstances where he's committed a very worrying act.

The learned Magistrate referred also to other evidence which he accepted, which included that the appellant said to the aggrieved, "You get my work involved and see what happens."  His Honour accepted that the aggrieved was scared and intimidated by those comments.

His Honour accepted evidence that the aggrieved refrained from making complaints to police officers about domestic violence because of a desire to protect the appellant’s job as a police officer. That inference is certainly open, given the statements that the aggrieved makes to the sergeant of police in a recording which is Exhibit 1. The learned Magistrate was, I suppose, demonstrating his impression of the appellant when he referred to this piece of evidence under cross-examination, "You've even told (the aggrieved) on occasions that you've schooled everyone up at work so no-one would believe her. Isn't that the case?"  And the answer from the appellant was, "Yes, that's exactly right."

His Honour also was satisfied that the appellant's entry into the family home some months after separation, in the night time, without invitation, was an act calculated to menace, worry and annoy his wife, in terms of the 1989 Act. That was an act which would have tended to harass and intimidate and it is that act which is referred to in the recording I've just mentioned, Exhibit 1.

The learned Magistrate also referred to the removal of the camper trailer and advertising it for sale on Facebook at a reduced value as calculated to trouble and worry the aggrieved. Also the learned Magistrate referred to the appellant's threats to cut off the motor vehicle insurance, home & contents insurance and private health cover, his threats to refrain from making loan repayments on the house and his threats to make reports to Centrelink. All of these, it was said, were designed to trouble and worry his wife.

The learned Magistrate also referred to the appellant accessing the internet banking account which was solely in the name of his wife.

Another matter relied on by the learned Magistrate was evidence of the use by the appellant of video and tape recorders and collecting property on two occasions from the matrimonial home on 11 and 18 February 2012 and at handover times for the children. His Honour concluded that that use was calculated to intimidate the aggrieved and did in fact intimidate her.

And so the learned Magistrate concluded that there were numerous acts of domestic violence, including acts which, in his Honour's opinion, were criminal.

Then the question became whether the appellant was likely to commit an act of domestic violence again. In reaching an affirmative conclusion on this question, his Honour relied on the history of the relationship, namely that there had been domestic violence acts committed over a substantial period of more than 10 years. These had occurred before and after the appellant's Cushing’s disease was diagnosed and treated.

With respect to the question of the likelihood of further domestic violence, the learned Magistrate took into account the appellant's role as a police officer in this way. His Honour considered that the appellant was aware of duties imposed on him under the Domestic & Family Violence Protection Act, under the Police Service Administration Act and under the Criminal Code. Despite those duties, the learned Magistrate found, the appellant committed acts of domestic violence.

The learned Magistrate also relied on the evidence of the history of excessive mood swings, and the intimidatory and threatening behaviour which he had found the appellant committed against the aggrieved.

His Honour was not satisfied that there was sufficient change in the appellant to give the court comfort on the question of whether there would likely be future domestic violence.

There was little uncontrolled behaviour by the appellant from the period in early February, when the application was made, all the way through to the time of the order. In that regard, the learned Magistrate took into account the fact that there was a temporary protection order against the appellant from June 2012 and that would have provided an incentive for the appellant to refrain from acts of domestic violence.

His Honour also considered that there would be ongoing communication between the aggrieved and the appellant in relation to the children of their relationship, and that that would give an opportunity for him to engage in acts of domestic violence.

His Honour referred to an entry on the appellant's Facebook as exhibiting gloating over the fact that no temporary protection order had been made after the first appearance in Court. His Honour went on to conclude that that was clearly calculated to vex the aggrieved.

And finally on the question of likelihood of future domestic violence, his Honour concluded the appellant had shown no remorse for his actions.

The appellant attacks the magistrate’s findings on five bases. Mr Todman has helpfully clearly set them out in his written outline and spoke to them in comprehensive oral submissions today.

The first attack was on the Magistrate's finding that the appellant committed an act of domestic violence by recording the children's changeovers. In this regard, the appellant refers to the decision MAN v. MAN (2003) QDC 398, in which McGill SC DCJ found the production of a tape recorder to tape a conversation was not intimidation or harassment for the purposes of the Act.

Whereas I think there's some real substance to this argument, the complete picture is that on an occasion when the appellant visited the home to take some property, he used a recorder and made what might at least be called provocative claims that he was being harassed.

In those circumstances, it was open to the Magistrate to consider the use of the recorder as an act of harassment or intimidation. If there wasn't much more to the case than that, then I'd have a very different view of it.

Mr Todman has pointed out that a person may lawfully record a conversation with another when a party to the conversation. It must be that in order to protect against false allegations of misconduct a person may record interactions such as the handing over of children. The mere recording of that could never, in my view, amount to an act of domestic violence.

Having looked at the evidence that I've just referred to regarding the home visit, I'm not entirely satisfied that the Magistrate was in error in considering the use of the recorder as an act of domestic violence. Even if he was, in essence, there are so many proper findings of domestic violence and unchallenged findings, really, that I am satisfied that the conclusion that there was domestic violence is a proper one to have made.

The appellant's primary attack, perhaps principal attack, was on the finding that the appellant was likely to commit an act of domestic violence again.

In this regard, the appellant relied on what was said to be a change of circumstances, that is, that there's a substantial period of time of good behaviour demonstrated. I've already referred to that. And the appellant has referred to several cases decided in the District Court where good behaviour pending a hearing was relevant, and that may be so, but it was open to the Magistrate, and indeed I draw the same conclusion as his Honour, to conclude that this appellant had the incentive not to commit acts of domestic violence while the application was on foot, and particularly while there was a temporary order on foot.

I don't doubt that the appellant is an intelligent man and capable of conducting himself properly, but that he conducted himself reasonably properly for a period of time is not a significant point against a finding that in the future there was a likelihood of him committing further acts of domestic violence.

The second attack - and the first attack taken today in elaboration on the written outline - concerns the continuing issues between the parties about their matrimonial property and the care of, and spending time with, the children. I've referred to the Magistrate's finding and there's evidence that both parties are represented by lawyers and that communications are properly carried out through the lawyers.

Now, the appellant refers to another decision of Judge McGill SC, SCJ v ELT [2011] QDC 100 in this regard. Relevantly his Honour said at paragraph 16, "The fact that there were, and were likely to be, occasions when there would have to be further communication between the parties because of unresolved matters between them was, in my opinion, a relevant consideration;..."

It was a relevant factor for the learned Magistrate to take into account, but given the matters raised by the appellant it is not a telling factor. The simple point is that there is a history of domestic violence as found by the Magistrate and which finding I confirm and so one must take into account the fact that into the future these two parties have very sensitive issues to sort out and, although they engaged lawyers, there is some evidence from which it might be inferred that the appellant engaged with the aggrieved on a legal matter not through the lawyers and that is the evidence which relates to his asking her to sign papers with respect to a parenting plan. I don't place too much weight on that because it's not entirely clear whether or not she'd engaged lawyers, but I think the reasonable inference is that by that stage she had.

I've already referred to the use of the video at the time of the children's changeovers and I'm not really satisfied the Magistrate placed great weight on that, but nonetheless, the point was raised by the appellant and I repeat that a person must be entitled for his protection against false allegations to record a transaction, but whether it amounts to intimidatory behaviour will depend on all the circumstances.

Now, the next attack is made on what is said to be a finding by the Magistrate that the appellant had accessed financial records of the aggrieved and that that accessing amounted to ongoing intimidation and harassment.

I'm not satisfied the Magistrate made such a finding. What his Honour did say among the findings I've already set out was that the appellant withdrew money from the personal banking account of his wife and, in effect, that the appellant was the person who attempted to access, his wife's personal account through the internet.

The source of that finding was evidence from the aggrieved that when she had trouble accessing her account on the internet she contacted the bank, she gave hearsay evidence about what she was told, but to which there was obviously no objection, and it amounted to information that a person had attempted three times to gain access to her account, but that no money had been removed from it.

She suspected the appellant must have worked out what her password was and the learned Magistrate has picked that up and converted it to the conclusion that the appellant did access the internet banking account solely in the name of the aggrieved and that that act was calculated to trouble and worry her.

It wasn't necessary for the Magistrate to be satisfied beyond reasonable doubt of that before it was a relevant fact for him to take into account. It's not an ultimate finding and it was a finding open to his Honour, in my view, and there's really nothing more to be said about it. It's fair to attack it because there's very little evidence about it and the evidence, as I said, seems to me to be second-hand, but it can't be said that it wasn't a relevant piece of information and it was, as I say, an inference open to the learned Magistrate.

The next attack was with respect to the Magistrate's finding about the entry in the appellant's Facebook page. Mr Rashleigh for the Commissioner, the first respondent, submitted that it was open to the Magistrate to make that finding because what the appellant said apparently on his Facebook page amounted to gloating. I'm not sure that that can be accepted and, standing alone, I have a real concern about whether that is a proper finding for the Magistrate to make.

The evidence from the appellant himself was that he used the term "have a win", I think that was the term he used and that was a most damning form of the Facebook entry. The evidence was that the aggrieved did not have access to the Facebook page. Now, that goes some way to disposing of that issue, although, as the Act provides, it's not necessary that an act of domestic violence be directed just by the appellant, but really I'm not satisfied that there was enough evidence for the finding that the Magistrate made about the Facebook entry.

The final attack is on the Magistrate's finding that there was no remorse and it is relevant to take into account in this regard that the appellant was challenging many of the allegations made against him and that it must be hard to challenge allegations while at the same time looking remorseful for it. So one must be careful with a finding of a lack of remorse.

But there's much more to this in this case. His Honour was able to hear the appellant during his evidence and to observe him during four days of trial. His Honour concluded there was no genuine acceptance or acknowledgement by the appellant that his behaviour was, in fact, domestic violence against the aggrieved. That finding was well and truly open to the learned Magistrate. It is open to infer the appellant simply failed to understand that his conduct could amount to domestic violence.

The reason I set out in detail the learned Magistrate's findings was to demonstrate that, although I consider there is merit in some of the appellant's arguments, at the end of the day there are plentiful largely uncontested findings which support the conclusion that there is a likelihood that in future the appellant would commit acts of domestic violence and for those reasons I, on my own review of the materials, conclude that it is proper for there to be the appropriate findings under section 20 of the 1989 Act.

I have been concerned about the length of the order. His Honour did not give any particular reason for making the order two years in duration. That doesn't mean his Honour had no reasons, his Honour is a very experienced Magistrate. Under the 1989 Act section 34A provides that a Court may order a protection order continue for a period of not longer than two years, but if the Court is satisfied there are special reasons for doing so the Court may order the protection order continue for a period longer than two years.

Although there is a long history of acts of domestic violence of the sort found by the learned Magistrate there was an acute phase of this conduct it seems to me and it surrounded the marital break-up. During that period the appellant sought psychiatric treatment and was given a diagnosis and medication. Although Dr Jenkins's evidence was that the applicant was stable that evidence was insufficient, in my view, to reduce the danger or the likelihood of future acts of domestic violence sufficiently to obviate the need for an order. But I do consider that material to be relevant to the period of the order.

The parties will soon commence proceedings in the Family Court and, in my view, it has been constructive for the purpose of protection of the aggrieved and possibly for the purposes of the appellant's own good that the order be in place, but it's unnecessary that it be one for two years.

An order for 15 months would take the period up to March 2014. It might be that the family law proceedings are not complete by then, but I think that that's a sufficiently long period, taking into account all of the relevant circumstances. I don't forget that there's a long history of violent behaviour, intimidating behaviour, threatening behaviour, but the appellant had a particular diagnosis in 2007 and he's had that treated, he has another diagnosis in 2011 in 2012 and he's had that treated. There remains on foot some prospect that he will move to another town and in all the circumstances it's proper to vary the period of the order from two years to 15 months.

So my only order is, under section 169 of the 2012 Act, I vary the decision of the learned Magistrate only to the point of making the time one of 15 months instead of two years, so that the end date for the order rather than be 12 December 2014 would be 12 March 2014.

...

HIS HONOUR: The order of the Court is that the decision is varied in the way I've just described.

...

HIS HONOUR: The only order will be the one I've made about varying the decision.

...