ZXA v Commissioner of Police[2016] QDC 248

DISTRICT COURT OF QUEENSLAND

1. [1]
   This an appeal against the making of a protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (the ‘Act’) in the Southport Magistrates Court on 25 February 2016.

2. [2]
   The appeal is brought pursuant to s 164 of the Act. The respondent has a right of appearance pursuant to s 167 of the Act.

3. [3]
   S 165 of the Act outlines the way in which an appeal is to be commenced. A notice of appeal must be filed within 28 days of the making of the decision, although there is a power to extend the period for filing.^[1]  It is argued the appeal is out of time, because it was not filed until June 2016.

Background

4. [4]
   The appellant and the aggrieved were in a relationship for fourteen years before divorcing in 2012. They have three children together. On 4 March 2015, there was an incident at the Miami Tennis Club where the appellant allegedly struck the aggrieved. This application followed; temporary orders were made; there was a hearing of the matter on 14 January 2016 and judgment was delivered on 25 February 2016.

Appeal commenced out of time

5. [5]
   One aspect of this appeal is determining whether it was commenced within time. This is, curiously, contentious. The appellant is self-represented. The notice of appeal which may well be operative, is largely hand written and was signed by the appellant on 2 March 2016. If it was filed that day, it would have been well within the appeal period. The unrepresented appellant repeatedly insists it was filed within the appeal period. However, the document bears stamps from the District Court registry indicating a filing date of 30 June 2016 and the fact that the filing fee was paid on that date. If this is correct, of course, then subject to s 165(4)(b) of the Act, to which I shall return, the appeal would be out of time and the appellant would be seeking the exercise of a discretion under s 165(5).

6. [6]
   The situation is complicated somewhat by the other documents on the file. There is an application for reduction of fees by an individual, filed 30 June 2016; a second notice of appeal said to be subject to leave, again largely hand written, signed and dated 30 June 2016 and bearing a date stamp for filing of 7 July 2016; and a written one page outline of submissions filed 7 July 2016. There is also a copy of an affidavit by a witness (‘XYZ’), sworn 1 August 2015, filed by the appellant in the District Court registry on 23 August 2016. There is also a typed, written outline of argument filed 23 August 2016.

7. [7]
   On balance, it is likely the notice of appeal was filed out of time, despite the appellant’s insistence to the contrary. Matters favouring that conclusion include, as submitted by the respondent: (a) where, in the original notice of appeal there is provision to insert the grounds of appeal, the words “request leave to appeal” are inserted, in different coloured pen, above the alleged grounds; and (b) in the notice of the 7 July 2016, the grounds of appeal include “Reason for delay in lodging my appeal is because I have breaches still before the court”.

8. [8]
   However, it is necessary to refer to the terms of s 165(4)(b) of the Act. It is not established in evidence before me that the appellant was present for the making of the decision, although he may well have been. There is also no evidence of the service of it upon him, or him being told about it by a police officer. These are the definitive events in terms of the section (although it is clear he found out about it in some fashion, because the first notice is dated 2 March 2016). In light of this, I cannot conclude the appeal is definitively out of time.

Nature of appeal

9. [9]
   The broad procedure set out in s 168 of the Act provides for the appeal to be decided on the evidence and proceedings below, with a power to rehear evidence, in this Court’s discretion. It is a species of appeal by way of rehearing.

10. [10]
    In Berbic v Steger,^[2] this kind of appeal was analysed:

“It has been said that an appeal by way of rehearing involves rehearing the cause on the date of the appeal, that is, by trial over again on the evidence used in the court below. In an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of appeal is the result of some legal, factual or discretionary error; Allesch v Maunz (2000) 203 CLR 172 at 180. In the case of an appeal by way of rehearing, it is necessary for the appeal court to bring its own judgment to bear on the question independent of the judgment of the body under appeal, although a good deal of weight may be attached to the view of that body. This applies particularly when the issue is as to the drawing of inferences, where an appellate court is in as good a position as a trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which having been disputed are established by the findings of the trial judge.” (some citations omitted)

Generally, a legal, factual or discretionary error must be identified.

Grounds of appeal

11. [11]
    The appeal is apparently based on a couple of broad assertions. Firstly, it seems it is said the Magistrate simply reached the wrong conclusion, because he should have concluded the aggrieved person was lying in her evidence and should not have been accepted. The more substantial point may be that the appellant contends he attempted to rely on the evidence of XYZ at the trial, however this was not permitted. This is apparently said to be an error, and the submission was expanded in oral argument to include the idea that the Magistrate should have permitted an adjournment so that XYZ could give evidence. It is this last point that occupied the bulk of the argument at the hearing.

12. [12]
    The appellant repeatedly insisted his counsel had attempted to rely on the evidence of XYZ at the trial, and when this was refused for reasons to which I shall shortly refer, she applied and was refused an adjournment of the matter so that XYZ could be called. However, in my view, these submissions simply have no substance.

13. [13]
    The relevant passage of the transcript is at pages 1-4 to 1-5. The appellant’s counsel referred to the evidence of XYZ. She said she had only seen XYZ’s affidavit that morning (i.e. the morning of the hearing). She submitted she had contacted him to ask if he could come to court, but he was in Melbourne and was available to give telephone evidence. She then mentioned he would be the last witness and she inquired whether the case would be finished by 4.00 pm. It was submitted that he was a crucial witness, because he was present at the incident and contradicted the version of the aggrieved person.

14. [14]
    This was resisted by the prosecutor. It was said the matter had been set down for hearing for some time and the appellant should have his arrangements in order.

15. [15]
    The Magistrate indicated he had made a direction when the matter was proceeding to hearing that, unless the other party consents, no affidavit will be admitted as evidence if the deponent is not available for cross-examination. The Magistrate also indicated that telephone evidence is not appropriate for a witness whose credit is clearly in issue and thus he would not be allowing the witness to appear by telephone in those circumstances. These matters were concisely and cogently expressed by the Magistrate.

16. [16]
    An examination of the transcript reveals, contrary to the appellant’s repeated submission, his counsel did not thereupon apply for an adjournment of the trial such that XYZ could be called. The most she did was enquire as to whether the Magistrate was sitting past 4.00 pm. This may have been in the hope that the matter would not be concluded and, if adjourned part heard, there would be an opportunity in the future to call XYZ who was presently not available. However, the Magistrate clearly indicated he was going to sit until the evidence was finished. There upon no adjournment was sought. It appears, at that stage, attempts were made to resolve the matter, however they were unsuccessful and the hearing proceeded. It was made clear, at T 1-7, that the appellant was prepared to consent to an order as to the aggrieved ex spouse, but objected to the children being included in the order.

17. [17]
    As there was no application for an adjournment consequent upon the unavailability of XYZ, it follows the argument by the appellant complaining about this is, in my view, stillborn. There is no lapse in procedural fairness to complain about. As to the refusal of telephone evidence, this was clearly within the discretion of the Magistrate and indeed would normally be regarded as the correct procedure where credit is in issue. For example, s 39R of the Evidence Act 1977 makes it clear that a court has a broad discretion in controlling such a procedure.^[3] In R v Sutton,^[4] Burns J considered the operation of s 39R at [19]:

“It follows that, when considering whether in the exercise of the discretion under s 39R it is in the interests of justice for a witness to give his or her evidence by audio visual or audio link, the court should have regard to similar considerations to those specified in s 39PB,^[5] that is: the nature and scope of the evidence the witness is to give, including whether that evidence is likely to be in contest; whether the credit or reliability of the witness will be in issue and, if so, whether the use of an audio visual link will be likely to affect the jury’s ability to assess those matters; the availability of appropriate facilities to ensure that the evidence that is proposed to be received by audio visual link or audio link is of an acceptable visual and/or audio quality; and any submission made to the court about the way in which the person should give evidence.”  (emphasis added)

18. [18]
    It is clear that the Magistrate’s exercise of discretion on this point was required to be informed by the interests of justice, in the balancing of factors such as the nature and scope of the evidence; the fact it was apparently firmly in contest; credit and reliability were firmly in issue; and the Magistrate’s previous direction. Unlike Sutton, what was being considered here was an audio link, not an audio visual link, and the Magistrate was entitled to form the view that assessment of credit was difficult to the point of impracticality in those circumstances. It is, if not conventional, certainly not unusual to decline telephone evidence for witnesses whose credit is in issue where the opposing party objects, as here. I am not convinced that his Honour’s exercise of this discretion fell so far outside the appropriate range as to amount to an appellable error.

The merits of the application

The Judgment

19. [19]
    As to the broader merits of the case, the Magistrate found the aggrieved person to be forthright, credible and compelling in her description of the relevant events of 4 March 2015. The confrontation was at a tennis centre where the aggrieved attended to collect their child from the appellant after he had taken the child to an extra-curricular activity, as contemplated by a consent order of the Federal Circuit Court. The order was that the children reside with the aggrieved.^[6]

20. [20]
    When the aggrieved removed the child, the appellant argued and attempted to retrieve the child from the aggrieved and, in doing so, struck the aggrieved in her face. She described it as a backhand to the right side of her face. An independent witness, YYY, heard the appellant yelling at the aggrieved and saw, not the blow, but a subsequent stumble by the aggrieved. He was assessed as an honest and credible witness; he made notes of the event shortly thereafter and did not try to embroider his evidence by alleging he saw a blow that he did not. Another witness, CCC, gave evidence of screaming and threats by the appellant towards the aggrieved. He also saw an injury to the face of the aggrieved after the incident. This was further corroborated by Constable Stewart, a police officer who attended the scene and saw the injury.^[7]

21. [21]
    The Magistrate noted the evidence of the appellant denying that he had assaulted the aggrieved. The Magistrate did not find him credible. He noted the matters under s 37 of the Act. The first issue, of the existence of a relevant relationship, was not the subject of challenge, quite properly; a former spouse is within the meaning of a relevant relationship.^[8]

22. [22]
    Secondly, he accepted the aggrieved’s evidence that an act of domestic violence had occurred.^[9] Physical abuse is of course within the s 8 definition of the Act. Her evidence was consistent with, and supported by, YYY and CCC and the existence of the injury was corroborated by Constable Stewart. Such a finding was clearly open on the evidence. The standard is to the balance of probabilities.^[10]

23. [23]
    Finally, the Magistrate found that a protection order was necessary or desirable to protect the aggrieved from domestic violence.^[11] There was more than a mere possibility of domestic violence in the absence of an order;^[12] there was a need to protect the aggrieved from that domestic violence, particularly where there were future probabilities of direct and indirect communication concerning the children.^[13] Further, imposing the protection order was necessary or desirable, considering, in particular, the safety, protection and wellbeing of the people who fear or experience domestic violence, including children.^[14]

The appellant’s submissions

24. [24]
    As outlined above, the appellant chiefly complained of the absence of XYZ. For the reasons enunciated, there is no merit in this complaint. The Magistrate was quite within his rights to refuse telephone evidence for a witness whose credit was in issue. There was no application for an adjournment, thus no wrongful refusal of such an application. Moreover, I have read the affidavit of XYZ. He did not see an assault. He deposes that there was a 5 to 10 minute argument between the parties. It is not clear that he had the couple under close observation for all of that time. It is possible that if challenged he might concede that his observation was not continuous. He described the incident as occurring in the carpark, ten metres from court one, where he was coaching. If he was continuing to coach, obviously his attention would have been divided. Obviously, his version does not explain the injury to the aggrieved.

25. [25]
    However it is not helpful to speculate on these aspects. The more cogent issues are that the Magistrate was not in error in refusing telephone evidence; thus XYZ was not a witness. The evidence on the respondent’s side clearly supported the Magistrate’s findings. No relevant error has been shown.

26. [26]
    The appellant submits there was no evidence of the aggrieved’s complaints. This is obviously incorrect; she gave evidence of them and was supported by the other three witnesses.

27. [27]
    He also raised an obscure reference to s 94 of the Evidence Act 1977. This has no application; s 145 provides that the rules of evidence do not apply. There is also reference to the Office of the Director of Public Prosecutions’ duty of disclosure; however that organisation was not involved in this case and this is therefore irrelevant.

28. [28]
    I do not find any of the appellant’s submissions meritorious.

The respondent’s submissions

29. [29]
    The respondent submitted that, consistently with DMK v CAG,^[15] the appeal must be decided on the evidence and proceedings before the Magistrates Court. It is not a new trial and the requirements and limitations on such an appeal are set out by the High Court in Fox v Percy:^[16]

“The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (footnotes omitted)

30. [30]
    The “natural limitations” exist here with the Magistrate having heard and seen the witnesses give evidence and be cross examined.

31. [31]
    Section 168(2) of the Act sets out a discretion to order that the appeal be heard afresh in whole or in part; however, there is no occasion here to re-hear evidence.

32. [32]
    The respondent generally commends the quality of the evidence relied on by the Magistrate and his reasoning process; submits that the factual findings were reasonably open to him; and that the reasoning process in making the orders was sound. Thus, it is submitted there is no error and the appeal should be dismissed.

Discussion

33. [33]
    As outlined above, the nature of this type of appellate jurisdiction turns on demonstration of a legal, factual or discretionary error by the trial Magistrate. It was submitted, and I accept, that no such error is demonstrated in this case.

34. [34]
    It was submitted, and I accept, that the Magistrate correctly turned his mind to the appropriate considerations when granting the protection order under s 37. His reasoning, which I have summarised at paragraphs [20] to [22] above, is free of appellable error. Similarly, the vital fact-finding and assessment of evidence, summarised at paragraphs [18] to [20] above, are free from appellable error. As I have set out, the only point of substance advanced was the complaint about the exclusion of XYZ’s affidavit, and my conclusion is that no error is demonstrated in that regard.

35. [35]
    It follows that the appeal is without merit and should be dismissed.

Form of order – re: children

36. [36]
    The notice of appeal and appellant’s submissions do not agitate arguments about the inclusion of the children in the order. Moreover, I accept that this was a proper exercise of the power under s 53 and s 54 of the Act, where children were present at the scene of this violence.

Disposition

37. [37]
    The appeal is dismissed. Pursuant to s 157(1) of the Act, I make no order as to costs.

Judge Kent QC