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AJS v KLB[2016] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

AJS v KLB v Anor [2016] QDC 103

PARTIES:

AJS

(Appellant)

v

KLB

(First Respondent)

and

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(Second Respondent)

FILE NO/S:

Appeal No 208 of 2015

DIVISION:

District Court

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

13th May 2016

DELIVERED AT:

Cairns

HEARING DATE:

21 March 2015

JUDGE:

Harrison DCJ

ORDER:

  1. Appeal dismissed
  2. The order of the Magistrates Court of 20 November 2015 is confirmed

CATCHWORDS:

APPEAL-APPEAL AGAINST ORDER-appeal pursuant to s 164 Domestic Violence and Protection Act 2012-protection order –where relevant relationship conceded –where domestic violence conceded– whether making of order was necessary or desirable- risk of future domestic violence

 

Legislation

Domestic Violence and Protection Act 2012 ss 4(1), 37, 37(1)(c), 165, 168(1)

Cases

GKE v EUT [2014] QDC 248

MDE v MLG & Commissioner of the Queensland Police Service [2015] QDC 151

COUNSEL:

R Griffiths for the appellant (instructed by Girgenti Lawyers)

SOLICITORS:

S Morris for the first respondent (Edwin Morris Lawyers)

D Brown for the second respondent (Public Safety Business Agency)

  1. [1]
    On 20 November 2015 in the Magistrates Court at Mareeba, following a hearing that day, the court made a protection order under the Domestic Violence and Protection Act 2012 (“the Act”) in favour of KLB, the first respondent in these proceedings, against AJS, the appellant in these proceedings.
  1. [2]
    The application was filed on 27 May 2015 and was first mentioned in the Magistrates Court at Mareeba on 1 June 2015 when the record shows that the appellant appeared in person. On that date a temporary protection order was made and the matter was mentioned again on 9 June 2015 and then set down for hearing on 20 November 2015. The temporary protection order was extended on 9 June 2015.
  1. [3]
    At all times Police Prosecutions in Mareeba appeared on behalf of the first respondent. From 9 June 2015 onwards, the appellant was represented by his solicitors and on trial they instructed counsel.

Background

  1. [4]
    The basis of the application was set out in an affidavit of the first respondent filed on 30 July 2015. She described how she met the appellant through a dating site in about February 2014. Interestingly, the appellant gave her a false name, Thomas Damien Cray, and also gave her false details about his work, his assets, his movements and his marital status.
  1. [5]
    A relationship commenced in late March 2014 and the first respondent ended that relationship on 31 December 2014. Between 6 January 2015 and 18 May 2015 the first respondent received a series of text messages from the appellant and these are set out in Exhibit 4 to her affidavit. At first they were consistent with someone who was trying to salvage the relationship, but they became increasingly aggressive and abusive. Some of them also contained sexually explicit references.
  1. [6]
    The first respondent contacted the police on two separate occasions in early 2015. The second occasion was on 20 February 2015 and whilst at the police station that day she sent the appellant a text message, telling him not to contact her again and advising him that she was at the police station at that time. This message forms part of Exhibit 4 to her affidavit.
  1. [7]
    On 20 February 2014 she contacted Sergeant Andrew Osborne of the Mareeba Police who swore an affidavit dated 23 July 2015 for the purposes of this application. He was interested in contacting the appellant (who at that stage he believed was Cray) and obtained from the first respondent registration details of a vehicle that the first respondent told him the appellant had been driving during the course of their relationship. He conducted a search which revealed that the vehicle was registered in the name of the appellant. He then rang the appellant and left a message for him to ring back.
  1. [8]
    The appellant rang him back. He told Sergeant Osborne that Cray was a friend of his, but he could not provide him his phone number. He asked the Sergeant Osbourne if this was about the first respondent.
  1. [9]
    Sergeant Osbourne did not disclose much information but informed the appellant that there was no formal complaint at this stage and he asked the appellant to give Cray a message to contact him.
  1. [10]
    The appellant rang him back about 20 minutes later. He enquired of Sergeant Osborne why he had contacted him and Sergeant Osborne explained that it was through the registration of the vehicle that he described as having been used to pick up the first respondent on occasions.
  1. [11]
    The appellant told Sergeant Osborne that Cray had plenty of money and would be contacting his solicitors. Sergeant Osborne explained that a complaint had not been made at that stage, but he was merely trying to stop the matter from escalating.
  1. [12]
    If ever the appellant should have stopped this charade about Cray, it should have been then. Had he done so, this matter would not have escalated any further.
  1. [13]
    On 23 February 2015 he again contacted Sergeant Osborne by leaving a message on his answering machine. In that message he complained that his wife was being harassed by phone calls over the weekend. He later rang Sergeant Osborne that day, complaining that the first respondent worked for the Department of Justice and had used a friend in the police service to obtain his details. He then made the first of his implied threats against the police, stating that he had been talking to his solicitor about that and also to what he described as the Privacy Commission.
  1. [14]
    He also told Sergeant Osborne that he had passed a message on to Cray and that Cray had tried to contact him on the weekend. Sergeant Osborne noted that there were not any messages on his answering machine. I note from the material that the first respondent was, at that stage, working at the Youth Justice Service in Atherton.
  1. [15]
    On this occasion Sergeant Osborne told him again that no formal complaint had been made and that there would not be any further action if Cray did not contact the first respondent any further. Again he asked the appellant to get Cray to contact him. This was yet another opportunity that the appellant had to end this charade, but he did not take that opportunity.
  1. [16]
    In text messages to the first respondent which formed part of Exhibit 4 and which are dated 28 March 2015 and 28 April 2015 the appellant, under the guise of Cray, referred to his contact with Sergeant Osborne and told the first respondent that he would be responding through his lawyers to allegations she had made against him.
  1. [17]
    On or about 18 May 2015 the first respondent received a further text message enclosing what he described as his statement to Sergeant Osborne, defending himself against the allegations which had been made. Again this was under the guise of Cray.
  1. [18]
    A copy of the statement was sent to Sergeant Osborne and a copy of it is annexed as Exhibit 6 to the affidavit of the first respondent. In short, it could only be described as a nine page diatribe but it is worthwhile, for the purposes of these proceedings, to go into some detail in terms of what he said.
  1. [19]
    He opened the letter by accusing the police and the first respondent of a criminal conspiracy in relation to the motor vehicle search. He accused them of breaches of what he described as the Privacy Act 1988, the Information Privacy Act 2009, the Public Sector Ethics Act 1994, the Public Service Act 2008 and the Criminal Code. This was complete and utter nonsense and did provide the court with considerable insight into the type of person that the court was dealing with.
  1. [20]
    He then denied the allegations against him. He then attempted to justify the sending of the sexually explicit texts on the basis that she had enjoyed those messages throughout the relationship and said that he had kept those messages. It seems difficult to accept that he can somehow justify the sending of those texts well after separation by what happened during the course of the relationship. He later accuses her of having an affair during the course of their relationship. He then continued on with his threats in terms of possible proceedings for defamation and criminal conduct against her and accuses her and a friend of hers of criminal conduct in relation to the registration details of the motor vehicle. He then sets out all the relevant sections of the legislation that he relied upon earlier. To any lawyer these claims are laughable, but the first respondent was not a lawyer. He then, rather hypocritically, accused her of using pseudonyms and talked about her “lowlife partners”. He then threatens her with some sort of civil action which he describes as a “settlement of accounts”.
  1. [21]
    He then goes on to say:

“I will also be sending Ms KLB a copy of my reply and asking her to contact me with the intention of resolving those outstanding issues and moving forward.”

  1. [22]
    Later on he says:

“If I am not allowed to contact Ms KLB per your instructions, Mr Osborne, then I am denied procedural fairness…that is you did not hear my side.”

  1. [23]
    He then went on to say much the same thing in the following paragraph.
  1. [24]
    He then went on to talk about what he described as his extensive business interests before again suggesting that she meet with him to work out and discuss the issues between them.
  1. [25]
    It was clear from this letter that he wanted to contact her further. He then went on to say:

“My associate (presumably himself) has already been in contact with the head of privacy complaints, Dermuid McCabe, Department of Justice Brisbane, and the Queensland Police Service. He has not filed a formal complaint as yet. I asked him to wait until I had submitted my letter and got a reply before proceeding further. He has agreed to do so.

Pursuant to procedural fairness and my legal right to defend myself against any allegations made against me, I am presenting this letter to you Mr Andrew Osborne and Ms KLB…the allegations made by Ms B are malicious and false, and this is an adversarial system, I will and have shown Ms B lied and lied to the police in her statement…I will also be challenging her character and credibility and presenting her true intentions, if she wishes to continue with these alleged allegations.

I have the supporting evidence to corroborate and substantiate my statements and will if she chooses to take this further; I will defend myself with all the knowledge and resources at my disposal, against these false and malicious allegations by her.

I will also file an affidavit and list of exhibits corroborating and clearly supporting my allegations…detailing all of the above offences and crimes committed by Ms B, and her friends…and would expect you to prosecute her/them to the fullest extent of the law…”

  1. [26]
    He later goes on to accuse five named people whom he describes as friends/associates of hers as being accessories before and after the fact of her crimes. Further he describes some of them as being regular drug users and refers to another friend of hers whom he says was a dealer in MDMA and says that the first respondent and her friends knew this but did not contact the police. To bolster that ridiculous argument he then sets out the provisions of section 544 of the Criminal Code.
  1. [27]
    On the final page he then says:

“As you can see this document is not signed and will remain that way until I hear from Ms B…she knows how to contact me…you can send any response or queries you have Mr Osborne to my last address 80 James Street Mareeba 4880 and she can forward it on to me.”

  1. [28]
    Later on he says:

“I am not going to sit back and cop this from you…I loved you so deeply, I could not believe it. It made me extremely vulnerable and you have no idea of the pain that you and your “friend/friends” have inflicted upon me.

You state you are not answerable to anyone or anything and do not want to be answerable to anyone or anything. Well now you are Ms B…to the Department of Justice, their code of conduct, your affirmation to uphold that code of conduct, the Queensland Police Service and the laws of the State of Queensland and the Commonwealth of Australia.

It is my legal right and the doctrine of procedural fairness that I be allowed to address your allegations with you and the Queensland Police Service, as you have presented your allegations to them. You have not taken any concerns you have, outside of you and me, and therefore it is you who has chosen and forced this course of action by me…you have given me no choice.

You stated it was over but you have opened ‘Pandora’s box’ Ms B…your choice, your action. As you can see from my response to your allegations I have documented numerous options I may pursue…which I have not done yet.  Why have I not done so?  I wish to present you with my response and endeavour to resolve this and your criminal allegations between you and me.

Do you have an alternative proposal which you wish to present to me?

If not, I therefore will be utilising all information, knowledge, skills and intelligence at my disposal to defend myself against these false and malicious applications by you and any further/future actions by you and your ‘friends’.”

  1. [29]
    Needless to say, the first respondent proceeded with her application after she received that blatantly threatening letter. By this stage it was apparent to the police and to the first respondent that the appellant and Cray were the same person.
  1. [30]
    What happened after the temporary protection order was made on 1 June 2015 is even more disturbing. The appellant instructed his solicitors to write to Police Prosecutions Mareeba seeking to have the proceedings discontinued. The letter dated 3 June 2015 formed part of the material relied upon in this case. During the course of that solicitor’s letter he made the following denials:
  1. That he knew the first respondent or ever had a relationship with her.
  1. That he had ever met or known her children and her ex-husband.
  1. That he had not sent any emails to her.
  1. That he had not send any mobile text messages to her.
  1. That he had never attended at or frequented 80 James Street, Mareeba.
  1. That he ever had possession of the mobile SIM card for the number 0488602278.
  1. That he ever passed himself off as Thomas Cray.
  1. That he had resided his entire life in Tarzali.
  1. [31]
    All of these assertions were blatant lies and were designed to try and influence the further and proper progress of these proceedings.
  1. [32]
    The letter clearly referred to the temporary protection order that was made on 1 June 2015 and it is clear that these instructions were given with the knowledge that that order was in place. This is significant.
  1. [33]
    The solicitors, who surprisingly, are still acting for him sought further details of the allegations against him, including any images allegedly purporting to show to him in the company of the first respondent. In the letter, they then said:

“A determination of the application to not grant or grant a protection order may well prove (either way) devastating to my client’s reputation, his job as a Corrections officer, his marriage, and his relationship with his family.”

  1. [34]
    In instructing the solicitors to send this letter he displayed a blatant disregard for the legal system in general and obviously had no insight as to how that this ongoing scandalous behaviour on his part may impact on the first respondent.
  1. [35]
    On 9 June 2015, as he conceded in cross-examination at the hearing, the police provided him and his solicitors with a photograph of the two of them together in what were obviously happier times and the charade in terms of whether he was or was not Cray came to an end. This was no thanks to any effort on his part, however, and it was only when he was caught out so obviously that he made the necessary concession.
  1. [36]
    The matter did not end there, however. He chose to contest the application and on 21 August 2015 he filed an affidavit. He exhibited to that affidavit text messages and emails he received from the first respondent during the course of the relationship. These were sexually explicit and he attempted to explain their inclusion on the basis that they put his subsequent text messages in context.
  1. [37]
    It was accepted by all the parties that there was no further contact after the letter of 18 May other than the court appearances.

The hearing

  1. [38]
    At the outset of the hearing his counsel conceded what he described as two of the three limbs necessary to be proved on the balance of probabilities to justify the making of a domestic violence protection order.
  1. [39]
    The first of these was the fact that there was a relationship and this was conceded at the outset. It was also conceded at the outset that the various text messages (not the letter received on or about 18 May) where sufficient to prove domestic violence and that the only matter for determination was the third limb, namely that it was necessary or desirable to protect the first respondent from domestic violence for the purposes of section 37(1)(c) of the Act.
  1. [40]
    In his affidavit at paragraph 13 the appellant said:

“I have moved on with my life. I realise now that it took me far too long to realise that the relationship was finished. I do not wish nor did I wish to rekindle the relationship. I was just seeking answers to some unanswered questions.”

  1. [41]
    He maintained this position during the course of his evidence at the hearing. Nowhere in his material did he attempt to explain the blatant threats against all and sundry that were contained in his nine-page letter nor did he attempt to explain why he deliberately attempted to mislead the police in the letter of 3 June.
  1. [42]
    Some of his answers to questions from the Police Prosecutor about different things he said in that letter were quite pathetic. He attempted to explain the reference to “Ms B and her lowlife partners” as derogatory of the partners but not of her. (T-1-27, lines 5-9).
  1. [43]
    He described the drug allegations as an adversarial statement by him in relation to allegations that he had been harassing her (T-1-28, lines 45-47).
  1. [44]
    He was quite properly questioned about the statements by Osborne to the effect that he told them that he told him that the matter would not go any further if the contact ceased and he replied:

“My belief was I was presenting, then, my thing to Mr Andrew Osborne, and he stated to me that I am harassing her or something, or that she’s made allegations that I am harassing her, and I just responded to that. (T-1-29, lines 35-38)”

  1. [45]
    He said at one stage that he did not want to give the letter to the police. This made no sense at all because he was clearly accusing the police of being involved in some sort of criminal conspiracy. He then went on to deny that the nine-page letter was in any way threatening.
  1. [46]
    The following exchange appeared:

“Question:  Now in your affidavit you would agree that you’d gone too far with trying to salvage this relationship…

Answer: Not gone too far. Taken too long to realise that it was over.(T-1-30, lines 6-8)”

  1. [47]
    This illustrated that he had no insight whatsoever into the seriousness of what he had done by sending this nine-page letter to the police and to her. He seemed to think that he was entitled to answers, and that he was entitled to go to those lengths to get those answers.
  1. [48]
    At the conclusion of the hearing there was legal argument about the whole issue of “necessary” or “desirable” or the purpose of s 37(1)(c) of the Act.
  1. [49]
    Counsel for the appellant argued that the nine-page letter did not constitute domestic violence describing it, in effect, as carrying out an action that he was legally entitled to do, such as making a complaint to the police or a Government agency.
  1. [50]
    He argued that one instance of such behaviour could not constitute harassment and that it needed to be done as part of a course of conduct to constitute intimidation or harassment.
  1. [51]
    Counsel described the threats of legal action in the letter as “reasonably unrealistic legal responses he can do in the predicament he was in – all of what he is entitled to do up to a point” (T1-46, lines 29-30). Counsel then argued that it could not be established that the making of the order was necessary or desirable for the protection of the first respondent. He argued that there would have to be evidence which would establish that there was a real risk of further domestic violence and not a mere possibility of such a risk in the future (T-1-48, lines 35-39).
  1. [52]
    He relied upon what the applicant said about being over the relationship and urged the learned Magistrate not to place too much weight on the fact that he had lied about who he was during the course of the relationship. He argued that he was not there for lying (T-1-48 lines 40-45, T-1-49, lines 1-20).
  1. [53]
    The Police Prosecutor argued that because of the numerous lies told by the appellant, the court would have difficulty accepting anything he said (T-1-51, line 25). The learned Magistrate asked the Prosecutor a number of times about what evidence there was to constitute the third limb, i.e. that it was necessary or desirable to make a protection order to protect the first respondent (T-1-52, lines 45-46, T-1-53-54).
  1. [54]
    It was argued that in this case past behaviour was a great indicator, as was the fact that the behaviour only stopped after the matter was brought to court (T-1-52, line 37). Considerable emphasis was placed on the nine-page letter and the fact that he received it after he was told by Sergeant Osborne that the matter would rest if there was no further contact (T-1-53, lines 14-21).
  1. [55]
    It was argued further that the letter was a clear act of intimidation and a way of control over the first respondent which went beyond simple legal communication. It was further argued that he would go to any lengths to stop the lie about his identity from coming out and that it was both necessary and desirable to make the order (T-1-53, lines 26-30).

The decision

  1. [56]
    The learned Magistrate spoke of his observations of both the first respondent and the appellant in their demeanour in the witness box which he said assisted him in assessing the credibility or otherwise of the witnesses. He noted that the first respondent sat turned, hardly acknowledging the question with a glance. She appeared frightened. He noted that the appellant, on the other hand, appeared confident and in control and was not overawed or intimidated by the surroundings or his position.
  1. [57]
    After discussing the relevant law the learned Magistrate then went on to make his relevant findings.
  1. [58]
    He said:

“I accept that the letter Exhibit 6 to the affidavit of the aggrieved would amount to domestic violence, being a continuation of the stalking behaviour constituted by the text messages. By this letter, the respondent exposes his other side. He denies allegations of harassment. He makes allegations of illegal activity on the part of the aggrieved. He wrote under the hand of his alias. He acts like a spurned lover, the injured party, all the while continuing with the sham of his alter ego, which he continued to early June through instructions to his lawyers.

The texts are of themselves, no doubt, an unpleasant and unwanted airing of private moments, and the evidence the slow unravelling of the relationship, which finally appears to have been accepted by the respondent around 18 May 2015. Whilst unwanted and upsetting to the aggrieved they do not amount to the most serious acts of domestic violence to come before the court. This is only relevant to my consideration of the third limb of section 37; and of course, as I often comment, it’s easy to make those comments in the sheer sober light of day in a sterile courtroom and not to be on the receiving end of such behaviour.

Back of the question of ‘necessary or desirable’. The aggrieved was clearly upset in court. She appeared as the epitome of a ‘beaten woman’. I hasten to say that this is not the allegation here. She sat in the witness box on the side, she stared into the air; and she just about tore up the papers that she had in her hands, she was grasping them so tightly. Even when removed to the vulnerable witness room, she covered her face from the camera (T2-4, lines 45-46, T2-5, lines 1-21)”.

  1. [59]
    Further on he said:

“The respondent says the relationship is over. The respondent is a self-confessed liar who cheated on his wife and maintained an extra-matrimonial affair with the aggrieved.

The words ‘necessary or desirable’ are a real conundrum. Weighing the factors, it is a very close call. On the evidence there has been no further communication from the respondent to the aggrieved. I am that satisfied that it is necessary to make an order to protect the aggrieved from domestic violence. (T2-5, lines 29-36)”

  1. [60]
    He went on to note that the first respondent was genuinely traumatised by his behaviour and says that he could not accept the appellant’s word to the effect that he would never contact her again (T2-5, lines 44-45, T2, lines 1-3).
  1. [61]
    He referred particularly to some of the statements made on the last page of the nine-page letter and noted that they concerned him. He noted that there was no agreement reached subsequent to the receipt of his letter and that there was no resolution of the matters he raised (T2-6, lines 26-28).
  1. [62]
    He found that it was not necessary to make the protection order but went on to conclude that he was satisfied in all the circumstances that it was desirable to make the order to protect the first respondent from domestic violence. He made the order in relation to her, but did not take it as far as the application which sough to include her children (T2-6, 30-34).

Ground of Appeal

  1. [63]
    The appellant has appealed this decision pursuant to section 165 of the Act. The grounds of appeal are as follows:
  1. That the decision was against the weight of the evidence, specifically:
  1. (a)
    there was no or no sufficient evidence to support the finding that his Honour was satisfied that an order was necessary or desirable to protect the respondent from domestic violence.
  1. Having found that the appellant had told lies out of court, his Honour erred;
  1. (a)
    in using that finding as a basis for concluding that he was satisfied that an order was necessary or desirable to protect the respondent from domestic violence;
  1. (b)
    in using that finding to make up the shortfall in evidence supporting the conclusion that an order was necessary or desirable to protect the respondent from domestic violence.
  1. His Honour erred in misinterpreting:
  1. (a)
    the meaning of the word desirable as it appears in section 37(1)(c) of the Domestic Violence Protection Act 2012;
  1. (b)
    the difference in meaning between the words “desirable and necessary” as they appear in section 37(1)(c) of the Act.
  1. His Honour reversed the onus of proof in concluding that the appellant had failed to satisfy him that he would not attempt to contact the respondent again.
  1. [64]
    The appeal was argued before me on 21 March 2015.
  1. [65]
    Pursuant to section 168(1) of the act the appeal must be decided on the evidence and proceedings before the Magistrates Court and may be heard afresh in whole or in part. In this matter it was conducted by all parties on the evidence and proceedings before the Magistrates Court.
  1. [66]
    The appellant must demonstrate some legal factual or discretionary error on the part of the learned Magistrate before this court can interfere.

Arguments before this court

  1. [67]
    At the outset counsel for the appellant argued that the letter Exhibit 6 to the affidavit of the first respondent could not constitute domestic violence and merely made reference to various forms of legal action the appellant considered were within his rights in response to the first respondent having contacted the police. He argued that it was a communication of an entirely different nature to the SMS messages where the concession was made and should not have been interpreted as domestic violence.
  1. [68]
    It is impossible to accept that argument. One has only to look at the history of the relationship, both before and after the separation, to see that this communication was far more serious than someone making reference to various forms of legal action that were within his rights in response to her initial police contact.
  1. [69]
    In her affidavit the first respondent described at some length how the appellant was very controlling in his behaviour during the course of the relationship. The picture she painted there is entirely consistent with the picture painted by the appellant himself in that particular letter. It was the behaviour of a controlling individual and was clearly designed to intimidate her. Not only was it sent to the police, a copy was sent directly to her. It was clear that some of the matters were particularly hurtful to her and this is not surprising when one looks at the totally threatening tone of that letter. The learned Magistrate was clearly entitled to make the finding that this letter formed part of the overall harassment and intimidation dating back to early January of 2015.

Ground 1

  1. [70]
    Counsel for the appellant referred on a number of occasions to the exchanges that the learned Magistrate had with the Prosecutor about evidence as to the third limb. He referred to a number of authorities, both before and after the amendment to section 37 and relied on the following comments from McGill DCJ in GKE v EUT [2014] QDC 248 at paragraph 32 onwards:

“32.I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.

  1. I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future.”
  1. [71]
    He argued that there was no evidentiary basis in this case for the making of such an order.
  1. [72]
    I have had regard to the decision of Morzone DCJ in MDE v MLG & Commissioner of the Queensland Police Service [2015] QDC 151 where he analysed in paragraphs [50] to [55] what is meant by “the protection order is necessary or desirable to protect the aggrieved from domestic violence” in section 37(1)(c) of the Act.
  1. [73]
    He noted that the focus here was the protection of the aggrieved from domestic violence and whether imposing a protection order was necessary or desirable to meet that need. He noted that the term “necessary or desirable” invoked a very wide and general power and should be construed in a similarly liberal manner to enable the court to properly respond, and, if appropriate, tailor an order to protect the person from domestic violence.
  1. [74]
    He referred to the earlier passage from GKE v EUT (supra) and also to the explanatory notes in relation to the original bill in 2011 which said:

“The bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence. This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet those needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is “likely”. Further a court can look at other factors including whether an aggrieved is in fear, when it is determining this element.

The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed towards achieving this aim. These matters are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross-applications and cross-orders.”

  1. [75]
    In [55] he described the question of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence” required a three-stage process supported by proper evidentiary basis:
  1. Firstly the court must assess the risk of future domestic violence between the parties in the absence of any order. He noted that this may depend upon the particular circumstances of the case and that relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling or compliance with any voluntary temporary orders and changes of circumstances. He went on to say that this does not mean that the court has to be satisfied that future domestic violence is “likely” but there must be more than a mere possibility or speculation of the prospect of domestic violence.
  1. Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. He noted that relevant considerations here may include evidence of the parties’ future, personal and familial relationships, their places of residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
  1. Thirdly, the court must consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from domestic violence. In this regard he noted that the court must consider the matters set out in section 4(1) of the Act, namely:
  1. (a)
    the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount;
  1. (b)
    people who fear or experience domestic violence, including children, should be treated with respect, and disruption to their lives minimised;
  1. (c)
    perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
  1. (d)
    if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
  1. (e)
    in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;
  1. (f)
    a civil response under this Act should operate in conjunction with, not instead of, the criminal law.
  1. [76]
    Finally, he noted that if the court was satisfied of the other preconditions of a relevant relationship and domestic violence, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of the respondent necessary or desirable to protect the aggrieved from the domestic violence.
  1. [77]
    In this case the learned Magistrate clearly placed considerable weight on the past behaviour of the appellant which I must say was quite exceptional behaviour.
  1. [78]
    After finding that it was not necessary to make the order to protect the first respondent from domestic violence he said:

“There is no doubt the respondent’s actions in contacting the aggrieved after the relationship was ended, and the betrayal she has endured, no doubt made her feel vulnerable, frightened and concerned. That might be in part because of the private communications being made public or the thought of some action being brought against her, some perceived action by – being brought against her, sorry, by the respondent or otherwise. My assessment is that she was genuinely traumatised by the respondent’s behaviour. (T2-5, lines 38-45)”

  1. [79]
    He placed considerable weight on the threatening tone of the letter Exhibit 6 to her affidavit and the fact there had never been any agreement or resolution of the issues raised by him in that letter. By implication he was concerned, against the background of this matter, that there had been no such resolution.
  1. [80]
    It was incumbent upon the learned Magistrate to look at all of the evidence in this case. The behaviour of the appellant in this matter was consistent with someone who had maintained control and who had lost that control and who was trying to reassert that control. This was particularly apparent in the nine-page letter and even by implication in his pathetic attempt to lie his way out of the matter once the court had made an order.
  1. [81]
    This illustrated his contempt for the legal system and was clearly relevant on consideration of the issue as to whether or not it was necessary or desirable to make the protection order to protect the first respondent from domestic violence.
  1. [82]
    Both of these letters illustrated the extent to which he was prepared to go, not just to maintain a lie but to continue to intimidate her.
  1. [83]
    It is of significance that the learned Magistrate noted that she was clearly intimidated and he was the person best placed to make the necessary observations of both of them during the course of their evidence.
  1. [84]
    I am not satisfied that the learned Magistrate erred in finding, on the balance of probabilities, that it was desirable to make the necessary protection order for the protection of the first respondent from domestic violence.
  1. [85]
    Whilst the learned Magistrate did not refer specifically to each of the three stages of the three-stage process referred to in MDE (supra) I am not convinced in any way that he was in error. The first matter the court must assess is the risk of future domestic violence between the parties in the absence of any order. Here the learned Magistrate was entitled to place considerable weight on the behaviour both before and after the issuing of the temporary order, particularly the two letters referred to. The position taken by the appellant in this appeal seems to be that these matters should be ignored, but they both form a critical part of the relevant evidence. They do not show any genuine remorse nor do they show any rehabilitation. The mere fact that he has not contacted her since he was caught out on 9 June 2015 does not advance the issue of rehabilitation any further.
  1. [86]
    One matter which is particularly relevant is the compliance with voluntary temporary orders. Here he tried to lie his way out of that order and that has to be relevant on this whole question of risk, as does the matter relied upon by the learned Magistrate, namely the unresolved referred to in the nine-page letter.
  1. [87]
    These matters all are sufficient to make the necessary finding that there was a risk of future domestic violence in the absence of any order and they took the matter much further than the mere possibility or speculation of the prospect of domestic violence.
  1. [88]
    Further, in relation to the second stage of the process the court could have regard to the impact his behaviour had on the applicant, as was clearly apparent to the learned Magistrate, and the fact that both live and work in the Atherton Tablelands which is a relatively small community and where there were real opportunities for direct and indirect contact in the future. The evidence in this case was clearly sufficient to satisfy the second stage.
  1. [89]
    In relation to the third stage, a number of the matters set out in section 4(1) of the Act were relevant. The safety, protection and wellbeing of the first respondent is relevant under paragraph (a) as with the need to treat her with respect and to ensure that the disruption to her life was minimal under paragraph (b). Paragraph (c) is also relevant in terms of holding the perpetrator, being the appellant in this case, responsible for his domestic violence and its impact on the first respondent. The lengths that he went to in writing the nine-page letter and in trying to avoid this application through lies presented via his solicitors to the police, display an ongoing need for him to be held accountable and that can best be done by means of a protection order.
  1. [90]
    Paragraph (d) is also relevant because it was clear to the learned Magistrate that the first respondent was having difficulty coping when giving evidence and it would appear that she would be vulnerable in that regard should there be any further contact of a like nature from him in the future.
  1. [91]
    In summary, there was sufficient evidence before the learned Magistrate to satisfy all three stages as described by Morzone DCJ in MDE (supra) and ground 1 is not made out.

Grounds 2 and 4

  1. [92]
    These grounds were argued together. Essentially, the argument advanced on behalf of the appellant was that the learned Magistrate placed too much weight on the fact that the appellant was a proven liar and, in rejecting his evidence that he had moved on from the relationship, effectively reversed the onus of proof.
  1. [93]
    I was referred to an exchange between the Police Prosecutor and the learned Magistrate at the top of page 1-53 of the transcript where the learned Magistrate questioned the Prosecutor about whether or not he was, in his submissions, reversing the onus of proof in the way he was presenting his submissions.
  1. [94]
    It was argued that there was insufficient evidence to support the making of the order and that it could not be based solely on a finding to the effect that the appellant was not to be believed when he said that he was moving on with his life.
  1. [95]
    In dealing with ground 1, however, I have found that there was more than sufficient evidence to make the necessary order and this evidence was far more extensive than just the lies told by him to her and to others.
  1. [96]
    I can well understand why the learned Magistrate refused to accept what he said. On three separate occasions during the series of texts which formed Exhibit 4 to the first respondent’s affidavit he effectively said that he had moved on with his life. This was all well before he sent the nine-page letter and was responsible for sending the outrageous denials to the police. His conduct in that regard gave the court a real insight into what he was capable of doing.
  1. [97]
    As I read the learned Magistrate’s decision, he did not misdirect himself on the onus of proof nor did he place undue weight on the lies told by the appellant. These grounds cannot be made out.

Ground 3

  1. [98]
    It is not necessary to go into ground 3 in any detail. In dealing with ground 1 I have already analysed the relevant evidence for the purposes of the three-stage process described by Morzone DCJ in MDE (supra). It is not necessary to consider any further the meaning of the word “desirable” for the purposes of section 37 of the Act. I have already found on the evidence placed before the learned Magistrate that there was more than sufficient evidence to satisfy the three stages referred to in MDE (supra).

Matter generally

In all the circumstances I am not satisfied that there is any legal, factual or discretionary error on the part of the learned Magistrate. The appeal is dismissed and the order of the Magistrates Court of 20 November 2015 is confirmed.

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Editorial Notes

  • Published Case Name:

    AJS v KLB v Anor

  • Shortened Case Name:

    AJS v KLB

  • MNC:

    [2016] QDC 103

  • Court:

    QDC

  • Judge(s):

    Harrison DCJ

  • Date:

    13 May 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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