Hughes v Talty[2015] QDC 145

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from the order of a magistrate that the appellant keep the peace and be of good behaviour towards the respondents for a period of 12 months. The appeal is brought under s 222 of the Justices Act 1886.  The learned Magistrate’s order was made pursuant to s 6 of the Peace and Good Behaviour Act 1982.  Section 8 of that Act provides, in effect, that the proceedings and procedures under the Justices Act applicable in the case of prosecution of an offence in a summary way apply to proceedings by way of complaint under the Peace and Good Behaviour Act.  There being no specific provision for appeal in the Peace and Good Behaviour Act, it would seem that the appeal lies pursuant to Pt 9 of the Justices Act. 

2. [2]
   By s 223, the appeal is by way of rehearing on the evidence given in the proceeding before the learned Magistrate. The appellant sought to adduce further evidence by way of affidavit. Mr Di Carlo who appeared for the respondents, while not conceding the evidence should be admitted, was content for me to receive it subject to certain reservations.  It has been unnecessary to consider that material to dispose of the appeal. 

3. [3]
   At the hearing of the appeal, Mr Di Carlo handed up an outline of argument addressing some of the matters raised in the appellant’s outline. The appellant objected to the outline, it not being part of the appeal documents prepared and filed before the parties signed the certificate of readiness. I decided to regard the outline to the extent that it might assist my understanding of the appellant’s outline.

4. [4]
   Section 4(1) of the Peace and Good Behaviour Act provides that:

“a person may make a complaint to a Justice of the Peace that another 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]
   Subjection 4(2) provides:

“(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]
   Section 4 goes on to provide that if the Justice considers it was reasonable for the person to have the fear complained of a summons or a warrant may issue requiring the defendant’s appearance before a Magistrates Court.

7. [7]
   By s 6 of the Act, the Magistrate shall hear and determine the matter of the complaint and upon consideration of the evidence may dismiss the complaint or make an order that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the court thinks fit.

8. [8]
   The complaint in the present case alleged, in terms similar to sub-section 4(2), that the intentional conduct of the appellant directed at the respondents has caused the respondents to fear that the appellant would destroy or damage their property.

9. [9]
   The prescribed form of complaint contains words that match both sub-sections 4(1) and (2). In the present case, the words which invoke subsection (1) were crossed out. So, the complaint alleged, in terms similar to sub-section 4(2), that the intentional conduct of the appellant directed at the respondents had caused the respondents to fear that the appellant would destroy or damage their property.

10. [10]
    The grounds (in effect, the particulars) set out for the complaint are written in hand-writing as follows.

“John Hughes verbally abuses me and my carer. John Hughes swears and uses profane language, he raises his voice in a threatening manner causing fear, he threatens my carer which frightens me and puts me in fear of my personal safety.  He parks his car diagonally across two parking spaces to prevent me or my carer from using a car parking space allocated to me.”

11. [11]
    In his written outline, the appellant sets out various complaints about the manner in which the trial was conducted and the quality of the evidence that was presented against him. In particular he complains that he was not heard or given a proper hearing. I will return to some of these matters later, although it is not necessary to adjudicate each of them given the view I take of the appeal.

12. [12]
    After several adjournments the complaint came on for hearing on 12 December 2014. The two respondents gave evidence and the appellant, who conducted his own defence, asked each some questions. The appellant did not give evidence. He had filed an affidavit and presented an affidavit of a witness, his daughter, but he did not give or call evidence.

13. [13]
    In my opinion, the grounds set out in the complaint did not support the complaint made. The learned Magistrate did not make any findings in terms consistent with sub-section 4(2) of the Act. The evidence, although consistent with the grounds, did not support a finding that the appellant had by conduct directed at the respondents, caused fear that he would destroy or damage their property.

14. [14]
    His Honour commenced his reasons for decision by referring to the complaint and reciting the grounds as I have set out above. He recounted some of the evidence. The appellant and respondents live in close proximity to each other in a set of home units managed by Queensland Housing. They enjoyed a good relationship until sometime in July 2014 when a dispute arose about the barking of a dog, which led to a serious deterioration in the relationship. His Honour noted:

“What happens after that seems to be a combination of factors.  All these little – what appears to be, in isolation, trivial sniping, sniggering, childish-like behaviour.  But just sufficiently to create frustration.  I’ve had the benefit of watching these witnesses perform in court and I can understand it’s very easy to find each one of them, in their own way – you’d quickly find something to dislike.”

15. [15]
    His Honour referred to a letter which the appellant had written to the female respondent. She had kept the letter and produced it in court. It was tendered as an exhibit and the learned Magistrate read it into the record. The letter was barely relevant to the issues. I agree with the learned Magistrate’s assessment of it as containing the appellant’s pledge of allegiance to the female respondent while disparaging the character of the male respondent. Relevantly, it contained no threats to damage property or for that matter to injure persons.

16. [16]
    The Magistrate recounted other evidence such as that the Brisbane City Council had received complaints which seemed to cause harassment to the respondents. The respondents suspected the appellant was making false complaints to cause them trouble.

17. [17]
    The learned magistrate referred to one incident of significance. The appellant drove his vehicle into the driveway, stopping very close to the male respondent, Mr Jenkins. While the two men give different accounts of this incident it is common that Mr Jenkins hit the bonnet of the vehicle and yelled at the appellant and then went to the window of the car and again yelled at him.^[1]  The learned Magistrate accepted Mr Jenkins’ account as, with respect, he was entitled to do.  The appellant’s account, as he told it from the bar table to the learned Magistrate, was that after staying elsewhere for some weeks he was returning to the home units only to be harangued by Mr Jenkins.  The female respondent was in the kitchen making tea at the time. She looked out and saw the incident and was frightened by it. 

18. [18]
    There were other complaints about the appellant putting rubbish in the wrong rubbish bins and there were disputes about car parks. It emerged that the appellant believed - and it seems still does believe - that the respondents live in a de facto relationship. He had complained that the male respondent was guilty of fraud because he has not disclosed that relationship to a relevant government agency. That provided another point of dispute between the parties.

19. [19]
    The learned Magistrate later recounted an incident from the evidence where it was said that the appellant went to some length to open the window of his car and call out loudly that Mr Jenkins was a cheat and a liar. Also, the appellant had complained to the local member about Mr Jenkins.

20. [20]
    The learned Magistrate accepted Mr Jenkins’ evidence that the female respondent was terrified by the appellant’s behaviour.

21. [21]
    The learned Magistrate concluded from the evidence and from, no doubt, his assessment of the appellant during the hearing, that the appellant was “a very aggressive, abrasive and obnoxious type of character and when you consider the antics that have been presented to the court today …”.

22. [22]
    There were two items of evidence relating to damage to property. Neither concerned property of the respondents. The learned magistrate did not refer to the evidence in his reasons for decision. It was proper he did not. It could not give rise to a fear in the respondents that the appellant would damage their property. I mention the evidence for completeness.

23. [23]
    Mrs Talty gave evidence that she saw the appellant move a bicycle that belonged to somebody else in the apartments. Edi and Bill from another apartment showed her a photo of the bicycle lying on the road, damaged. Mrs Talty spoke of seeing the appellant and the bicycle the next day but the evidence is unclear. Apparently, there was a separate, criminal, proceeding relating to that conduct. There was no evidence about the result of that proceeding except for the appellant telling the learned Magistrate that no evidence had been offered. After the respondents’ solicitor brought to the leaned magistrate’s attention the statement in the appellant’s affidavit that no evidence had been offered, the learned magistrate commented, “So we’re looking at the versions which have created the basis for her to fear that her property is going to be damaged.”^[2]

24. [24]
    The other evidence touching on the risk of property damage was that another neighbour, Karen, told Mrs Talty the appellant had thrown stones onto her garden and this created a danger when mowing.^[3] The respondent worried that what happened to Karen would happen to her.^[4]

25. [25]
    When asked why she had brought the complaint, Mrs Talty answered, “Because he swears a lot at me, he swears at Bill. He’s nasty and I’m scared.”^[5]

26. [26]
    The essence of Mr Jenkins evidence came in answer to the question from his solicitor,

“Now, just finally, to sum up, are you still worried that Mr Hughes may do something? --- Take a look at Pat. I’m worried that – like, look, I’ve been there and he’s called her, “You’re an alcoholic.” He only – that letter that he left attached to the door was, in my opinion, absolutely appalling where he called her a drunk and the only reason that I’m around is that I keep her drunk and I can live off her and all this sort of thing. Well, I don’t live off her. I go and do what I do and she does what she does. And yes, I can tell you now that Pat is terrified of him because he walks up that driveway and he comes up that pathway past her windows, he gives her that unholy glare that – fair dinkum, he even – sometimes, it even worries me when I – when he looks at me, you can see the, you know, the hate or whatever it is in his eyes.”

27. [27]
    The learned Magistrate, as I said, did not make any findings in accordance with sub-section 4(2). There was no evidence to support a finding that there had been intentional conduct of the appellant directed at the complainants which could reasonably cause fear that he would destroy or damage their property.

28. [28]
    His Honour summarised the evidence as follows:

“Now when you consider the combined effect of all these little strands of dysfunction, it has a very clear consequence.  Now on the – Ms  Talty’s evidence, she’s concerned sufficiently that she’s now afraid to go out into the front yard unless in the company of others, and I can understand when I look at this evidence, listen to this story, that I believe that is a very real concern.

Now, in the circumstances where the court has found there is a sufficient basis upon which the complaint has been presented, I’m going to grant the order.”

29. [29]
    Upon a review of the material before the learned Magistrate, accepting his Honour’s conclusions such as I have just quoted, I am not satisfied that there was sufficient evidence to support the order and the appeal must be allowed.

30. [30]
    At the end of the evidence, before hearing final argument, the learned Magistrate came to the view that “there’s animosity between these three people” and his Honour considered the question to be “is it possible to put some sort of process in place that will maintain some level of integrity, peace, common sense, reasonableness…”^[6]

31. [31]
    While that was an understandable question, it was not the one to be decided. The making of an order under the Peace and Good Behaviour Act is a solemn matter.  Among other things it places the person subject to the order in jeopardy of breach and punitive consequences.  Section 10 of the Act provides that a person who fails to comply with the order is, for each contravention or failure, guilty of an offence carrying 100 penalty units or imprisonment for one year.  The terms of the order are broad and arguably vague, requiring the person to “keep the peace and be of good behaviour”.  It is a serious matter to make an order putting a person for 12 months in jeopardy of imprisonment for breach of such an order.

32. [32]
    Given the above it is only necessary that I refer briefly to the appellant’s complaints about the hearing. He complains that his affidavit material was not taken into account. There are several answers to this. The appellant did not give evidence and thereby make himself or his witness available for cross-examination. He was given the opportunity to give evidence and he was warned by the Magistrate of the practical consequences of not giving evidence. By that stage in the proceeding the appellant had obviously decided there was little point in continuing and regularly suggested everyone just go home.^[7]  In the circumstances, he cannot complain if his affidavits were not considered. In any case, the solicitor appearing for the respondents referred to the plaintiff’s affidavits when leading his witnesses.  That is, the appellant’s assertions were, at least to some degree, aired in court.  Although he did not give evidence the plaintiff spoke freely from the bar table. 

33. [33]
    Another complaint was that the female respondent was permitted to refer to a document she had prepared from notes in order to refresh her memory. The evidence was that she made notes as things occurred so that she could remember them. The document she referred to in court was not the original notes but a typed up version of them. I am not satisfied any error was made in permitting her to use the notes to refresh her memory.

34. [34]
    The appellant complains about the hearsay nature of much of the evidence. This is a reasonable complaint. Only the respondents gave evidence, yet they sought to rely on the reports of other people who lived in the apartments, none of whom was prepared to come to court to give evidence. On my reading of the learned Magistrate’s reasons his Honour was not influenced at all by any hearsay statements. His Honour made, with respect, reasonable and open findings about the credibility and reliability of the respondents and drew conclusions of facts from their evidence.

35. [35]
    Early in the trial the learned Magistrate asked the appellant’s witness, his daughter, to wait outside the court room until she was called upon. This was entirely proper. His Honour asked the appellant whether he intended to call his daughter as a witness. The appellant believed that was unnecessary because her affidavit had been presented to court. He told the learned Magistrate that he did not intend to call his daughter. Nonetheless, because there was an affidavit prepared and because of the likelihood that the appellant would rely on the affidavit thereby giving rise to the witness needing to be available for cross-examination, it was proper to ask her to stay outside until called upon. I am not satisfied that any error was made by the learned Magistrate in that regard.

36. [36]
    The appellant sought to play in court a video which he said showed Mr Jenkins following him and abusing him. It is apparent from the transcript that the video could not be played on court machinery. The appellant apparently could play the recording on his phone and did so to the solicitor for the respondents. It seems the learned Magistrate did not hear anything on the recording.^[8]  It seems the appellant did not have the opportunity to properly present that material.  Again, it was aired during the examination of Mr Jenkins who denied that there could be a video showing him abusing the appellant.  The learned Magistrate made no particular findings concerning the video.  I am not satisfied that the inability of the appellant to present the recording caused a miscarriage of justice.  It was for him to present any evidence that he sought to present.  He was not in the witness box when he was trying to play the recording. 

37. [37]
    Upon my review of the evidence, giving full weight to the learned Magistrate’s views of the credibility and reliability of the witnesses, I am not satisfied the evidence supports the matters of complaint.

38. [38]
    The learned Magistrate made an order for costs against the appellant. The Peace and Good Behaviour Act makes no provision for costs orders but it is likely that the costs provisions (Division 8 of Part 6 – Proceedings in Case of Simple Offences and Breaches of Duty) in the Justices Act apply.  At the suggestion of the respondent’s solicitor the learned Magistrate ordered the sum of $1,000 to be paid.  His Honour further ordered that the amount be paid within six months in default 30 days’ imprisonment.  It would seem open to the learned Magistrate upon making an order under the Peace and Good Behaviour Act to make an order for costs under s 157 of the Justices Act which provides relevantly that

“in all cases of summary convictions and orders … the justices making the same may, in their discretion, order by conviction or order that the defendant shall pay to the complainants such costs as to them seem just and reasonable.”

39. [39]
    That exercise of discretion is qualified by s 158B. It provides that in deciding the costs that are just and reasonable the justices may award costs only “for an item allowed for this division under a scale of costs prescribed under regulation and up to the amount allowed for the item under the scale”. Section 158B(2) provides that the justices may allow a higher amount for costs if satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.

40. [40]
    The order for costs was not obviously made with respect to or by having regard to a scale. His Honour did not find the case to be one of special complexity, difficulty or importance. It is not clear on what basis it was open for his Honour to make the order in that amount.

41. [41]
    Section 161 of the Justices Act appears to provide for the enforcement order that the learned Magistrate made.  Still, one may wonder at the wisdom of ordering imprisonment in default of paying a costs order despite there apparently being power to do so. 

42. [42]
    The orders will be that the appeal is allowed. The orders of the learned Magistrate are set aside and the complaint is dismissed.