JAW v Reed[2018] QDC 178

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 3 August 2017 an acting Magistrate made a protection order against the appellant under the Domestic and Family Violence Protection Act 2012 (DFVPA). On the same day the acting Magistrate dismissed an application by the appellant for a protection order under that legislation. The person against whom he had sought his order was the aggrieved in the application for an order against him. She is his former partner. They have two children together. For convenience, I shall refer to his former partner as the aggrieved and to him as the appellant.

2. [2]
   The appellant appeals against the protection order made against him. He has not appealed against the dismissal of his application.

3. [3]
   In making the protection order against the appellant the learned acting Magistrate was satisfied that there had been an act of domestic violence against the aggrieved, which occurred on 17 February 2017. His Honour was further satisfied that it was necessary and desirable that an order be made.

4. [4]
   In his notice of appeal the appellant raises numerous grounds. Many of them are misconceived. Before turning to consider them, however, I will address the nature of the appeal.

The nature of the appeal and the application for a hearing de novo

5. [5]
   By his notice of appeal the appellant sought a hearing de novo of the proceeding the subject of the appeal. Section 168 of the DFVPA provides:

“168 Hearing procedures

3. (1)
   An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

3. (2)
   However, the appellate court may order that the appeal be heard afresh, in whole or part.

6. [6]
   The appellant sought to adduce fresh evidence through additional witnesses, additional material such as phone recordings, text messages and recorded conversations. He also said that he would seek subpoenas to produce evidence. At the commencement of the appeal I heard from the appellant as to why his appeal should proceed as a hearing de novo. Having done so I ruled that it would not proceed as such but rather as a rehearing on the record below.^[1]

7. [7]
   My reasons for ruling that the appeal be by way of a rehearing and not a hearing de novo included that the appellant was not in a position to call witnesses at the hearing of the appeal. Furthermore, evidence which he sought to adduce, whether through witnesses or otherwise, was evidence which would have been adduced at the hearing below. He described it as material which helped “to clarify points of contention during the proceedings on the 30th August”. The appellant referred to having represented himself at that hearing and to having learnt much about the process since. One can understand the difficulties which self-represented litigants face in navigating the legal issues and processes involved in any litigation. In emotive cases, which domestic violence proceedings often are, those difficulties may be even greater. However, those difficulties should not be later relied upon to demonstrate why an appeal ought be conducted as a hearing of the matter afresh to enable a more prepared and rehearsed appellant simply to run the proceeding better at a second attempt.

8. [8]
   The appellant also sought to adduce evidence of a photograph of the aggrieved tended for the Magistrate, and purporting to show markings on her neck,^[2]having been “doctored”. The appellant attempted to question the aggrieved about the production of the photograph in the proceedings before the Magistrate and was stopped from doing so when objection was taken to the aggrieved lacking any relevant expertise. It was apparent that the appellant’s thesis was that the photograph which was tendered and in which it was said marks were evident, was different in appearance to the same photograph sent by text message from the aggrieved to the appellant on the night in question. The appellant also referred to the fact that the aggrieved had also shown police the photograph on the night, but they had taken no action; the inference sought to be drawn being that there were no marks evident to police. It became apparent that, apart from the fact that the appellant had not sought to lead any evidence of these matters before the Magistrate, which he could have, he was not in a position to challenge the authenticity of the photographs by means of any expert evidence on the appeal hearing. He in fact asked for leave (and an adjournment) to be able to obtain such evidence.

9. [9]
   The appellant also wanted to adduce evidence of a conversation with one of the officers on the night in question in which the officer had expressed a view that he ought bring his own domestic violence application against the aggrieved, as her conduct towards the appellant amounted to domestic violence. As was explained to him in the course of the hearing, whether or not domestic violence has been committed is a matter of mixed fact and law to be determined by the court. It is not a matter for expert evidence, and the police officer is not an expert in any event. Furthermore, the appellant had appealed only the orders made against him on the aggrieved’s application. He had not appealed the Magistrates dismissal of his own application.

10. [10]
    The appellant asserted an unfairness in the way the matters had been conducted in the Magistrates Court as being a ground for having the matter heard afresh. The particular complaint was that the Magistrate heard both the aggrieved’s application for a protection order, and his application, at the same time. He complains that Mr Lake, the solicitor for the aggrieved, only sought to discredit himself in respect of his own application and did not question his own witnesses. Affidavits of evidence had been filed, however, so there was no need for Mr Lake to lead evidence in chief from witnesses called in the aggrieved’s case. Moreover, s 41C(2) of the DFVPA requires the court to hear the application and any cross application before the same court together unless the court considers it necessary to hear the applications separately for the safety, protection or wellbeing of the person named as the aggrieved in the original application, the original protection order or the cross application. The procedure adopted by the Magistrate was thus not only permitted, but required by law, there being no indication that the Magistrate considered it necessary to hear the matters separately.

11. [11]
    For those reasons, the appellant’s application to have the matter heard afresh was refused.

12. [12]
    Having determined to conduct the appeal as a rehearing under s 168(1), something should be said of the nature of such an appeal.

13. [13]
    Where the nature of the appeal is by way of a rehearing the appellate powers of the court as provided by s 169 are to be exercised for the correction of error.^[3]In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,^[4] Gleeson CJ, Gauldron and Hayne JJ said:

“Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”

14. [14]
    Later,^[5]their Honours’ said:

“Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker.”

15. [15]
    Where the decision under appeal involves an exercise of discretion, error of the kind explained in House v The King^[6]in the following terms must be identified:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

Relevant legislative provisions

16. [16]
    Section 4(1) of the DFVPA prescribes the principles for administering the Act. It provides:

“4 Principles for administering Act

3. (1)
   This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

3. (2)
   Subject to subsection (1), this Act is also to be administered under the following principles—

1. (a)
   people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;

2. (b)
   to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;

3. (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;

4. (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;

Examples of people who may be particularly vulnerable to domestic violence—

• women

• children

• Aboriginal people and Torres Strait Islanders

• people from a culturally or linguistically diverse background

• people with a disability

• people who are lesbian, gay, bisexual, transgender or intersex

• elderly people

5. (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;

6. (f)
   a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”

17. [17]
    Section 8 defines domestic violence for the purposes of the Act:

“8 Meaning of domestic violence

3. (1)
   Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

1. (a)
   is physically or sexually abusive; or

2. (b)
   is emotionally or psychologically abusive; or

3. (c)
   is economically abusive; or

4. (d)
   is threatening; or

5. (e)
   is coercive; or

6. (f)
   in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

3. (2)
   Without limiting subsection (1), domestic violence includes the following behaviour—

1. (a)
   causing personal injury to a person or threatening to do so;

2. (b)
   coercing a person to engage in sexual activity or attempting to do so;

3. (c)
   damaging a person’s property or threatening to do so;

4. (d)
   depriving a person of the person’s liberty or threatening to do so;

5. (e)
   threatening a person with the death or injury of the person, a child of the person, or someone else;

6. (f)
   threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

7. (g)
   causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

8. (h)
   unauthorised surveillance of a person;

1. (i)
   unlawfully stalking a person.

3. (3)
   A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.

3. (4)
   To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.

3. (5)
   In this section—

coerce, a person, means compel or force a person to do, or refrain from doing, something.

unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.

Examples of surveillance by using technology—

• reading a person’s SMS messages
• monitoring a person’s email account or internet browser history
• monitoring a person’s account with a social networking internet site
• using a GPS device to track a person’s movements
• checking the recorded history in a person’s GPS device

unlawful stalking see the Criminal Code, section 359B.”

18. [18]
    Section 37 prescribes when a court may make a protection order. It provides:

“37 When court may make protection order

1. (1)
   A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—

1. (a)
   a relevant relationship exists between the aggrieved and the respondent; and

2. (b)
   the respondent has committed domestic violence against the aggrieved; and

Note—

See the examples of the type of behaviour that constitutes domestic violence in sections 8, 11 and 12, which define the terms domestic violence, emotional or psychological abuse and economic abuse.

3. (c)
   the protection order is necessary or desirable to protect the aggrieved from domestic violence.

2. (2)
   In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—

1. (a)
   the court must consider—

1. (i)
   the principles mentioned in section 4; and

2. (ii)
   if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and

2. (b)
   if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order.

3. (3)
   However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent.

4. (4)
   If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.”

19. [19]
    Relevant relationships are defined by s 13 to include an intimate personal relationship which is defined by s 14 to include a spousal relationship. By s 1(1) a spousal relationship exists between spouses and, by s 15(2)(c), a spouse of a person includes a former spouse of the person.

The evidence before the Magistrate; his conclusions; and a lack of appealable error

20. [20]
    The aggrieved made a statement to police on 13 March 2017^[7]in which she said that on 17 February 2017, at about 7pm, the appellant arrived at her house for the purpose of picking up their son for the weekend. Her evidence was to the effect that the changeover commenced amicably enough but that the appellant became frustrated by events not proceeding quickly enough. The aggrieved wanted to follow what she described as being a ritual when the children were being changed over of saying goodbye to the child when he or she was buckled into their car seat. The appellant did not want this to occur asking the aggrieved to stay in the house. The aggrieved had said that she would not as she wanted to say goodbye in the ritual manner. She followed the appellant and her son to the car for this purpose. She said that her further request to say goodbye to their son was refused and that the appellant locked the car from the inside. After further discussion including that each of them had, or was ready to, move on from their relationship, the aggrieved attempted to put her arm in the passenger side back window of the vehicle in an attempt to open the door to say goodbye to her son. The appellant is said to have grabbed her arm, bruising it, shoved her away and said “no”. Further discussion took place about the aggrieved wanting to say goodbye to her son after which she says the appellant grabbed her throat with one hand for about 10 seconds. She yelled at him to remove his hand and he said “I will kill you [aggrieved].”

21. [21]
    Shortly after this the aggrieved said she saw neighbours running to where she and the appellant were. There was then a confrontation between one of the neighbours and the appellant. She recalls the appellant telling the neighbours that he had not touched her neck and that she was making it all up.

22. [22]
    In an affidavit filed on 19 June 2017,^[8]the appellant denies placing his hand on the aggrieved’s throat and having said that he would kill her.

23. [23]
    The appellant deposes to a conversation between himself and the aggrieved at Mt Coot-tha on 1 May 2017. He says that during that conversation the aggrieved advised him that she was willing to withdraw all allegations against him and Family Court proceedings if he were to re-enter a relationship with her. He says that she demanded this of him multiple times but he refused saying that he felt blackmailed. He says that she then advised him that he did not have much time as a warrant had been issued for his arrest over her complaint about the alleged assault. He says that at this point he was fearful for his safety, wellbeing and livelihood and that he felt that he had no alternative but to agree to her demands, which she took as him making a promise to her.

24. [24]
    The appellant exhibited to his affidavit a number of documents contained on a USB memory drive. Exhibit A on that drive is a series of screenshots of text messages exchanged between the aggrieved and the appellant between 1 May and 2 May 2017. They include photographs of emails and text messages which the aggrieved exchanged with investigating police informing them of her desire to withdraw all charges against the appellant. Importantly, in my view, the aggrieved did not in any of those communications resile from the allegations which she had made. Rather she refers to having met with the appellant and discussed many things with him.

25. [25]
    In an email to Senior Constable Craig at 12.10 pm on 1 May 2017 she speaks of the effects which events were having on her, the children and the appellant, particularly the stress and strain on her. She says that she does not “want to keep doing court actions, it’s so draining for me, and I don’t want the children brought into a massive mess of going through the court systems either”. She says that “[the appellant] and I promised not to have any issues from here on, keeping everything peaceful”. She says that she is grateful for the meeting and that she and the appellant “discussed and worked through a lot, for the sake of the children”. She states that she has “clarity in the thoughts she had been having” and that she “would like to withdraw all charges please, being the breach of the temporary order, and also the charge that Constable Reed is looking at finalising regarding the incident in February”.

26. [26]
    She says further:

“I would like to also withdraw the DVO application made by police upon [the appellant]. [The appellant] and I are going to civilly work together for the children. [The appellant]  and I have confirmed with each other that it’s best to keep this level ground for the children, and withdraw everything from one another with the DVO applications, and the charges and work peacefully for the children. I know what having those charges will cause for both [the appellant] and for our children. After [the appellant] and my meeting today I have faith in him and fully trust him and our agreement with one another and working with one another for the children now peacefully. Please ensure all charges and DVO application is dropped now, including the breach and also the charge Constable Reed was working with. I would like to withdraw everything, and work together with [the appellant] in a peaceful way.”

27. [27]
    The aggrieved sent a similar email to her lawyer at 12.41 pm on 1 May 2017 saying that she wanted to cancel a planned mediation and informing her lawyer that she and the appellant were “going to drop all charges, and both DVO applications and mediation, and just work on a peaceful and middle ground for the kids”.

28. [28]
    The aggrieved sent screenshots of these emails to the appellant and at 12.46 pm sent him a text in these terms:

“I have emailed the lawyers, doctor’s surgery, Senior Constable and Constable and Sonya to have all of it dropped, mediation, charges and DVO application, everything. I’ll now email Legal Aid to also cancel my approval for all legal aid applications too, please hold to our promise, please.”

29. [29]
    At 13.05 the aggrieved sent a text to the appellant saying “I’ve just finished emailing all personnel”, to which the appellant responded “Thank-you. I just need to confirm it’s all being dropped”.

30. [30]
    The aggrieved replies that she had dropped all matters and that she was just waiting for emails in response. One minute later she sent the applicant another text saying that her lawyer had just called to confirm her email and that she, the aggrieved, had provided confirmation. The appellant responded by saying “You know if this doesn’t get withdrawn, I’ve pretty much destroyed my life”.

31. [31]
    The aggrieved responded saying:

“It’ll be okay. They will have seen the emails by now and advised the higher up – Shane (sic) of me wanting to withdraw and drop everything. Hopefully I am given a response shortly. Police will never help me again after this though. Please uphold your end to me.”

32. [32]
    The appellant responded:

“No matter what I’ll never allow the situation to get to the point where police will be needed. This has scared the shit out of me.”

33. [33]
    In my view, none of these communications are inconsistent with an episode of domestic violence having occurred in February 2017. A number of the communications are consistent with such an episode having occurred.

34. [34]
    Also exhibited to the appellant’s affidavit were recordings of a number of conversations between the appellant and the aggrieved. The aggrieved did not know that the conversations were being recorded by the appellant. At one stage she asked the appellant if they were being recorded to which the appellant responded that the aggrieved knew that they were not. That was a lie. Transcripts of the recorded conversations were also annexed to the affidavit. The appellant was critical of the learned acting Magistrate not having listened to the recordings rather than having reference to the transcripts. The appellant’s particular criticism of the Magistrate in this regard stems from his Honour’s finding about the aggrieved having alleged that she had been coerced into withdrawing both her application for a domestic violence order and her complaint to police. Having referred to the recordings, and particularly that which was Exhibit E, and having observed that what was recorded “does not paint either party in a particularly good light” the learned acting Magistrate went on to observe that what was recorded in Exhibit E could be looked at two ways. The first was that the aggrieved “was, to some degree, attempting to stand over [the appellant] and force him into a relationship”. The alternative view which his Honour identified was that the aggrieved’s version of events was correct and “that she had been coerced into withdrawing a complaint that she had made to police, and she had been coerced into attempting to withdraw the application before the court”. His Honour concluded that, on all the evidence, he “would lean towards the latter on the balance of probabilities”.

35. [35]
    In reaching that conclusion, his Honour had earlier said that he had some doubts about a particular aspect of the appellant’s evidence. His Honour had also referred to the appellant having lied to the aggrieved about not recording their conversations. The evidence about which his Honour expressed doubt concerned the appellant’s reasons for his being in a hurry to return to his workplace on the occasion of the changeover of his son on 17 February when the act of domestic violence is alleged to have occurred. The appellant sought to challenge that finding by leading further evidence on the appeal about the circumstance of his return to the workplace. That was part of the further evidence for which leave to adduce was refused. It was evidence available to the appellant at the time of the original hearing.

36. [36]
    The appellant’s essential criticism, though, was that in only reading the transcripts rather than listening to the recordings, the learned acting Magistrate would not have heard the tone and inflection used by the complainant. His contention was that if that tone and inflection were to be heard one would conclude that it was not that of a person being coerced; and that it was he himself who was being coerced. The coercion he suggested was to bend to the aggrieved’s will and return to a relationship with her.

37. [37]
    The recordings were played in open court during the appeal. Having listened to them, I would conclude that the aggrieved was indeed attempting to have the appellant adhere to an agreement which they had reached that they would re-establish their relationship. However, that is consistent with them having agreed to do so in the circumstances to which the aggrieved had deposed in her affidavit,^[9]including that the appellant had said that he would “do anything” and “get back with you” if she would agree to withdraw the matters against him.

38. [38]
    Of greater significance, though, than whether the aggrieved’s tone suggested that she was being coerced by the appellant or vice versa, or whether any coercion was consistent with an agreement of the appellant to return to the aggrieved if she withdrew those matters, is whether the conversations as recorded were consistent or inconsistent with there having been an act of domestic violence in February 2017 as alleged by the aggrieved. In my view the recordings are consistent with there having been domestic violence.

39. [39]
    From 11 minutes 12 seconds^[10]into the recording which is Exhibit B, to 11 minutes 40 seconds of that recording, the following exchange takes place:

40. [40]
    The appellant at no point in that exchange denies having done anything to the aggrieved. Whilst he said that he did not “hurt” the aggrieved, that is consistent with her evidence that he grabbed her throat but did not squeeze.

41. [41]
    At 22 minutes 41 seconds into the recording the following exchange takes place:

42. [42]
    That is consistent with something having been witnessed by others on the night. I will consider what other witnesses said as to what they heard the appellant say later in these reasons. Before doing so, I would observe that it seems inherently unlikely that the appellant would say, even, “I’m not going to kill you [aggrieved]” in the absence of some act of violence. It is certainly not inconsistent with an act of domestic violence occurring. An assailant with his hand on the throat of another may well seek to assure his victim that he was not going to kill her.

43. [43]
    From 34 minutes 35 seconds the following exchange takes place:

Again, there is no denial by the appellant of the allegation that he put his hand on the aggrieved’s neck. It is apparent from other evidence that the aggrieved’s reference to having Bianca on her head at the time at which the appellant put his hand on her neck and this scaring “the fuck out of” her, is a reference to a friend of the aggrieved who died from an act of domestic violence. Having listened to the recording I am satisfied that the appellant’s response that this was unfair is a response to the reference to Bianca, and implicitly her death, rather than the statement that he placed his hand on the aggrieved’s neck being itself unfair.

44. [44]
    Later, at 45 minutes and 26 seconds the aggrieved says:

“Like I said to you yesterday, I haven’t been able to so much as touch another man or even holding hands. It would have been Adam if he came up before I force that not to happen because of what happened that weekend. But no. It has only been you for the last what five years. I was 100 per cent.”

45. [45]
    Again there is no denial by the appellant in respect of the reference to “what happened on that weekend”; which is clearly a reference to the alleged act of domestic violence.

46. [46]
    Then, at 49 minutes, 14 seconds, the aggrieved says “[Appellant], you know what you did to me”, to which the appellant responds “Yeah but [aggrieved], I don’t deserve that”. In this statement there seems to be an acknowledgement of having done what was alleged. There is certainly no denial.

47. [47]
    On a number of occasions the appellant states that he feels “trapped” or has “no choice”. None of those statements are inconsistent with the complaint having been made about an act of domestic violence which had actually occurred. All of those statements are consistent with a complaint having been made about an act of domestic violence which had actually occurred, but the aggrieved having agreed to withdraw the complaint, or associated application for a protection order, on the agreement of the appellant’s return to the relationship. All of those statements would seem inconsistent with the appellant not having engaged in the alleged act of domestic violence. There is no apparent reason as to why he would feel trapped or without choice in those circumstances. He would simply be free to defend the allegations on the basis that it did not occur.

48. [48]
    In my view, having listened to, and considered the tone and inflection of the speakers, and the content of the conversations, the recordings support the conclusion that there had been an act of domestic violence by the appellant toward the aggrieved as alleged by her.

49. [49]
    There was other evidence of such an act of domestic violence. A neighbour, DAS gave evidence that she heard a male say “You are holding me up I need to leave” to which a female voice, which she thought sounded like the aggrieved, responded “But I have the right to say goodbye”. She then heard the male voice say “I’m going to kill you”.^[11]She gave the following evidence:

“I heard [the aggrieved] say ‘Don’t you ever touch my throat’.

I then heard the male voice say ‘Stop saying that, you’re only trying to get attention’.

I heard [the aggrieved] say ‘You don’t have the right to touch my throat. I’m not trying to get attention you touched my throat’.”^[12]

50. [50]
    In her oral evidence she said, of having heard a male voice saying “I’m going to kill you”, “Yeah, it wasn’t a yelling voice. It was quite a lower – a lower tone voice, and then that’s when [the aggrieved] – well when the female voice got loud and said, ‘don’t touch my throat’”.^[13]

51. [51]
    DAS gave evidence of seeing a red mark below the aggrieved’s left ear. When asked by the appellant in cross-examination as to how she could remember so clearly the events in a statement taken two months after the events occurred, she said that she was able to do so “because it was all written down the next day when I got home from work”.^[14]

52. [52]
    DAS’s husband, JAS, also gave evidence of having heard, at about 7.30 pm on 17 February 2017, while having dinner with his family, a loud scream which sounded like a female who he thought sounded like his neighbour, the aggrieved, coming from the address behind his house. He heard the female yell “Take your hands off my neck”. He heard a male voice say “I am going to kill you”. He and his father then rushed to the address from where he heard the voices coming and had a confrontation with the appellant.^[15]In oral evidence, JAS said that the first thing he heard was the aggrieved asking the appellant to take his hands from her neck and that he heard the male say “I’m going to kill you” seconds after he heard the female say “Take your hands off my neck”.^[16]

53. [53]
    He gave evidence of his wife having taken photographs of the aggrieved about 15minutes after the incident. In her statement DAS had said her father had said that he had noticed marks on the aggrieved’s neck and had taken photographs.

54. [54]
    JAS said that he had observed red marks on the aggrieved’s neck. He said that the photographs, which were Exhibit 2, were the marks he had seen on the aggrieved’s neck.

55. [55]
    When cross-examined by the appellant, JAS said he was sure that he had heard the appellant say to the aggrieved that he would kill her in a loud, raised voice.

56. [56]
    DAS’s mother, BC, also gave evidence. She said that she saw red marks on the aggrieved’s neck when the aggrieved had come into the neighbour’s home. She saw someone take photographs of the marks.^[17]  She confirmed this in her oral evidence. She thought it was either JAS or his father who took the photographs.^[18]

57. [57]
    In my view, the inconsistencies between the evidence of the witnesses as to who took the photographs is of no consequence. Clearly the photographs were taken by one of them at the relevant time. Furthermore, the witnesses were all consistent as to the reason why the photographs had been taken: they had all seen red marks on the aggrieved’s neck.

58. [58]
    I am also of the view that the inconsistency between JAS and DAS as to the tone of the appellant’s voice when he said he was going to kill the aggrieved is immaterial. They were consistent as to the words he used. It was put to neither that they were mistaken and that what they had in fact heard was the appellant say that he would not kill the aggrieved.

59. [59]
    At first instance the appellant had challenged the credibility of the prosecution witnesses on the basis that they had colluded in their evidence. On the appeal the appellant explained that his contention was not so much that the witnesses had directly colluded, but rather that their recollections were unreliable because of susceptibility to what others had said. The three main criticisms were that on the night in question they had heard the complainant’s version of events; police did not question them separately that night; and in the subsequent months they would have discussed the matters amongst themselves. I permitted the appellant to put material before the court being four journal articles^[19] and a summary of a case which concerned coaching of witnesses.^[20]Having considered those materials and the record of this matter, I do not see any basis for concluding that the challenge made to the credit of the witnesses is made out. Each witness gave evidence of their own recollection of events which they saw and heard within a very short space of time. There was nothing about the content of their evidence, or the manner in which it was given,^[21]which would cause concern that it had been contaminated by the evidence of others.

60. [60]
    In my opinion, the learned acting Magistrate’s conclusion that on the balance of probabilities the events as alleged by the aggrieved occurred on the occasion of the change-over on 17 February 2017, was correct. No error in reaching that finding is demonstrated. His Honour was also correct to conclude that it had been established that an act of domestic violence occurred against the aggrieved.

61. [61]
    On the appeal, there was really no challenge to the learned acting Magistrate’s conclusion that, an act of domestic violence having occurred, it was necessary and desirable that a protection order be made. The challenge was simply on the basis that there had been no such act of domestic violence.

62. [62]
    As his Honour identified, there are two quite young children to the relationship and there is going to be interaction between the parties for some considerable years to come, whether they want that interaction or not. In my opinion, his Honour was correct to conclude that an order was at least desirable in those circumstances.

63. [63]
    Those matters deal with the substantive issues which were argued in the appeal hearing. However, the further grounds of appeal raised on the notice of appeal should be addressed briefly.

64. [64]
    The appellant raised that the police were forced to take out the application for protection order due to the interference of the Minister for the Prevention of Domestic and Family Violence’s office. It was alleged that the aggrieved used a connection, that being the mother of her deceased friend, to apply pressure in that regard. It was said that it had been recommended to her by police to bring a private application but she had not done so and had brought one instead using her contacts to force a police application which it was said would give her an advantage. Even if the appellant is correct in his assertions in that regard, it had no bearing on the application before the Magistrates Court. Whatever the motivation for bringing a police application, the learned acting Magistrate was duty bound to hear and determine that application which was before him.

65. [65]
    The appellant asserted that the aggrieved’s motivation for obtaining a protection order was not for her protection but rather to harass the appellant. It was further alleged that the aggrieved’s lawyer was using the existence of the protection orders to advance an application in the Federal Circuit Court of Australia to reduce the amount of time which the appellant could spend with his children. I do not accept the appellant’s assertion as to the motivation on the part of the aggrieved for obtaining a protection order. The basis for granting an order under s 37 had been established before the learned acting magistrate. Whether the existence of such a protection order has ramifications in respect of proceedings in other jurisdictions is not to the point.

66. [66]
    The appellant referred to that part of the definition of domestic violence contained in s 8(1)(f) of the DFVPA which extends its meaning to include behaviour which “in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else”. He asserts that the protection order, as made, constitutes an act of domestic violence against him. That ground is also entirely misconceived.

67. [67]
    He asserts that the protection order was made on circumstantial evidence on the balance of probabilities. He asserts that the balance of probabilities favours women in circumstances which there are cross-applications because of the simple fact that men are physically larger and stronger and so more capable of physical violence even if not violent people. He asserts, therefore, that the female is more likely to be considered to be the party at risk and thus more likely to be the beneficiary of a protection order.

68. [68]
    The matter was not determined on circumstantial evidence or at least not exclusively so. There was direct evidence of an act of domestic violence. It was determined on the balance of probabilities, as is required by law. Having found that an act of domestic violence had been occasioned against the aggrieved, there was no error in concluding that a protection order was necessary or desirable to protect her from domestic violence.

Disposition

69. [69]
    No error has been demonstrated in the decision of the learned acting Magistrate. The appeal should be dismissed.