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Tolhurst v Villan QDC 263
DISTRICT COURT OF QUEENSLAND
Tolhurst v Villan  QDC 263
APPEAL NO: 126 of 2018
Magistrates Court, Cairns
13 December 2018
26 October 2018
Morzone QC DCJ
PEACE & GOOD BEHAVIOUR – mode of appeal pursuant to s 222 Justices Act 1886 - where the appellant appeals against a good behaviour order ordered against him pursuant to s 7 of Peace and Good Behaviour Act 1982 – whether threshold power to issue the summons subject of appellate review - ‘matter of complaint” – admissibility of late statement on grounds of unfairness or relevance - whether the decision made was unreasonable & unsupported by evidence – standard of proof on balance of probabilities - costs
Appeal Costs Fund Act 1973 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld) s 145
Justices Act 1886 (Qld) ss 158, 222, 223, 225, 226, 227
Justices Regulation 2014 (Qld) s 232A
Peace and Good Behaviour Act 1982 (Qld) ss 4, 5, 6, 7, 9, 81
Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Forrest v Commissioner of Police  QCA 132
Fox v Percy (2003) 214 CLR 118
International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319
Laidlaw v Hulett  2 QdR 45
Latoudis v Casey (1990) 170 CLR 534
McDonald v Queensland Police Service  QCA 255
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Palmer v Dolman  NSWCA 361
Qantas Airways Ltd v Gama (2008) 167 FCR 537
R v Allie  1 Qd R 618
Refjek v McElroy (1965) 112 CLR 517
Scanlon v Queensland Police Service  QDC 236
Teelow v Commissioner of Police  QCA 84
Victoria v Turner (2009) 23 VR 110
White v Commissioner of Police  QCA 121
HA Mellick of Mellick & Smith for the Appellant
The respondent/complainant appeared unrepresented.
- The appellant appeals from the good behaviour order made against him on 19 June 2018 by the Magistrates Court pursuant to the Peace and Good Behaviour Act 1982 (Qld) (“the Act”).
- Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.
- On 16 October 2017 the respondent, as complainant, filed a complaint and summons in the Magistrates Court seeking a Peace and Good Behaviour Order pursuant to s 5 of the Act. The complaint was apparently made to a justice of the peace who issues a summons in the prescribed form together with four annexures marked A, B, C & D.
- The hearing proceeded before the Magistrates Court in Cairns on 19 June 2018. The respondent conducted his own case against the appellant’s solicitor advocate. The appellant did not give or adduce any evidence in the hearing.
- The learned magistrate gave her decision ex tempore on 19 June 2018 in favour of the respondent (as complainant). In doing so, the learned magistrate found that there was no relevant threat to found personal fear on the part of the respondent, but Her Honour did find that the appellant’s intentional conduct directed at the respondent caused him to fear that the appellant will destroy or damage any property of the respondent.
- Accordingly, the learned magistrate ordered:
- That the defendant keep the peace and be of good behaviour towards the complainant for a period of 12 months;
- The defendant must not threaten to assault or to do any bodily injury to the complainant or any person under the care or charge of the complainant, or who is employed by or engaged by the complainant to attend his property;
- The defendant must not threaten to damage any property of the complainant; or
- The defendant must not threaten to procure any other person to destroy or damage any property of the complainant.
- The appellant appeals from the decision and orders.
Mode of Appeal
- The genesis of the proceeding is a complaint made before a justice of the peace, and the issuance of a summons pursuant to s 5 of the Act, which relevantly provides:
“5 Making of orders Complaint in respect of breach of the peace
- (1)A person (the complainant) may make a complaint to a justice of the peace that a person has threatened—
- (a)to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or
- (c)to destroy or damage any property of the complainant; or
and that the complainant is in fear of the person complained against (the defendant).
- (2)A person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.
- (2A)If the matter of a complaint under subsection (1) or (2) is substantiated to the justice’s satisfaction, and the justice considers it is reasonable in the circumstances for the complainant to have the fear mentioned in the subsection, the justice may issue—
- (a)a summons directed to the defendant requiring the defendant to appear at a stated time and place before a court; or
- (b)a warrant to apprehend the defendant and to cause the defendant to be brought before a court;
to answer the complaint and to be further dealt with according to law.”
- Section 7 provides the Magistrates Court with a wide discretion as to whether or not to make an order determining the complaint as follows:
“(1) The court before which the defendant appears in obedience to the summons or is brought pursuant to the warrant, as the case may be, shall hear and determine the matter of the complaint.
- (2)Without limiting any other evidence given by or on behalf of the defendant, the defendant may produce evidence that the complaint is made from malice or for vexation only.
- (3)Upon a consideration of the evidence, the court may –
- (a)dismiss the complaint; or
- (b)make an order that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the court thinks fit.
- (4)The order made by the court may contain such other stipulations or conditions as the court thinks fit.”
- Section 9 of the Act incorporates the procedures of the Justices Act 1886 as follows:
“Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedure under the Justices Act 1886 applicable in the case of the prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 7 as if such complaint were a complaint in respect of such an offence.”
- Accordingly, the appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Sub-section 222(1) relevantly provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
- Pursuant to s 223 of the Justices Act 1886 (Qld) the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
“(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.”
- For 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 the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”
- The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case. Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so I pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.
- Section 225 of the Justices Act 1886 (Qld) provides that:
“(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just;
- (2)If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration;
- (3)For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against;
- (4)An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”
Grounds of Appeal
- The appellant relies on the following grounds of appeal:
- The learned magistrate erred in admitting the evidence of Greg John Waller in circumstances where:
- (a)The respondent failed to give any advance notice as to the evidence to be led of Mr Waller in accordance with the Practice Directions made 01/05/18, or at all; or alternatively
- (b)The proposed evidence of Mr Waller had no relevance to the issues to be determined.
- Upon the learned magistrate finding that the actual physical assault by the appellant on the respondent did not constitute a threat of physical assault by the appellant upon the respondent, the learned magistrate erred in finding that the Complaint and Summons could have been substantiated to the Justice’s satisfaction because at the time of issuing the Complaint and Summons there was no evidence, or no proper evidence, before the Justice that the intentional conduct of the appellant directed to the respondent had caused the respondent to fear that the appellant would destroy or damage any property of the respondent; and
- In the alternative, there was no basis, or no proper basis, for the learned magistrate to find that the intentional conduct of the appellant directed at the respondent caused the respondent to fear that the appellant would destroy or damage any property of the respondent.
- Grounds 1 and 3 concern maters relevant to the conduct of the hearing and the determination of the matter. I propose to deal first with ground 2 since it deals with the threshold issue of whether the justice of the peace acted beyond power by issuing the summons.
Threshold Power to Issue Summons
- The appellant asserts that the learned magistrate erred in finding that the Complaint could have been substantiated to the justice’s satisfaction.
- The genesis of the proceeding is a written complaint on oath, and the issuance of a summons by a duly qualified justice of the peace in accordance with s 5 of the Act. That is, the justice of the peace must be satisfied that the matter of complaint under ss 5(1) or 5(2) is substantiated and consider it reasonable in the circumstances for the complainant to have the fear. In doing so, the justice may make or cause to be made such inquiries and receive such evidence as the justice thinks fit. If the justice makes the requisite findings and issues a summons pursuant to s 5(2A), then the respondent must answer the complaint and be dealt with in the Magistrates Court.
- Pursuant to ss 5(1) and 5(2A):
- The matter of complaint must be substantiated to the justice’s satisfaction, relevantly here that:
- (a)The defendant has threatened:
- (i)To assault or to do any bodily injury to him or to any person under the care or charge of the complainant; or
- (ii)To destroy or damage any property of the complainant;
- (b)The complainant is in fear of the defendant;
- The justice considers that it is reasonable in the circumstances for the complainant to have the fear.
- Pursuant to ss 5(2) and 5(2A), the respondent had to substantiate four matters to the justice’s satisfaction, namely:
- There was intentional conduct of defendant;
- That conduct was directed at the complainant;
- That conduct has caused the complainant to fear that the defendant will destroy or damage any property of the complainant; and
- It is reasonable in the circumstances for the complainant to have the fear.
- Both provisions call for “substantiation” of the “matter of complaint”. But the provision does not prescribe the nature of the “substantiation” required, or the degree of “satisfaction” required of the justice.
- Sub-section 5(1) requires the jurisdictional pre-requisites of the relevant threat(s) of person or property, coupled with fear of the defendant.
- “Threatened” is an ordinary English word derived from “threat”, which considered objectively, must be of such a nature and extent that an ordinary person might be influenced or made apprehensive of an intent or determination to inflict harm, in this context, by an assault or bodily injury, or to destroy or damage property. The threat may be expressed by words or conduct, but not implied. It does not matter if the threat does not specify the exact nature of the assault or bodily injury to be caused to the complainant (or under his care or charge), or the exact nature of the destruction or damage to be caused to his property.
- For s 5(1) to be engaged the threats must be of the type necessary to ground a complaint, which must be related to either some assault or bodily injury of the complainant, or some destruction or damage to the complainant’s property. Mere fear without a threat is not sufficient; the threatening conduct must be probative of the circumstances instilling fear in the complainant of the defendant. And although some evidence of fear should prudently be included, in some cases, fear may be inferred by necessary implication from the nature of the threat viewed in the circumstances in which it was made.
- In contrast, s 5(2) requires the jurisdictional pre-requisites of direct intentional conduct, and consequent fear for property. Whilst this provision has wider import (being wider than some threat) the defendant’s conduct must be shown to be intentional, directed at the complainant, and causative of the complainant’s fear that the defendant will destroy or damage the complainant’s property
- Section 5(2A) applies to both provisions whereby subjective fear is not sufficient. That provision imposes a further requirement that the justice must also “consider” it is “reasonable in the circumstances” for the complainant to have the relevant fear. This goes to the discretion to be exercised by the justice in deciding whether to issue a summons directed to the defendant. The exercise requires an objective test, and will include all the relevant circumstances, for example: the nature and extent of the threat or conduct; the relationship of the parties, likely contact and interaction; the risk of the feared outcome; and whether the fear is proportionate to the threat.
Matter of Complaint
- In his complaint, the respondent relied upon conduct under both ss 5(1) and (2) of the Act, by asserting that the appellant:
1. Has threatened:
- (a)To assault or to do any bodily injury to the complainant or to any person under the care or charge of the complaint;
- (b)To procure any other person to assault or to do or to do any bodily injury to the complainant or to any person under the care or charge of the complainant;
- (c)To destroy or damage any property of the complainant;
- (d)To procure any other person o destroy or damage any property of the complainant
And the complainant is in fear of the person complained against namely Malcolm Tolhurst
2. That the intentional conduct of Malcolm Tolhurst (the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.
- He used the pro-forma complaint and summons, which attached four documents titled annexures and marked A, B, C & D. There is no evidence that the justice made, or caused to be made, further inquiries or received evidence beyond the material in and annexed to the complaint.
- The appellant argues that the justice should not have issued the summons because the complaint did not disclose a threat (as distinct from an actual assault) by the appellant to assault or do bodily injury or to destroy or damage property of the complainant under s 5(1) of the Act; and/or any intentional conduct as described to in s 5(2) of the Act. Alternatively, he further argues that the justice could not have been satisfied that the matter of complaint under ss 5(1) or 5(2) was substantiated, or consider it reasonable in the circumstances for the complainant to have the fear. The appellant draws comfort from the learned magistrate’s finding that the physical assault by throwing the soft drink did not constitute a threat of physical assault by the appellant upon the respondent, and the absence of sufficient evidence that the respondent feared that the appellant would destroy or damage his property.
- On the contrary, the respondent argues that the justice was capable of being satisfied of the relevant matters to issue the summons in accordance with the provision.
Threat of assault or injury, or destruction or damage to property & fear in complainant
- The respondent set out the grounds of the complaint by reference to the annexures as follows:
“The complainant owns a unit within a Cairns complex known as the Winston and the complainant is an executive member of the body corporate committee for the 31 unit complex. The complainant also hold a proxy and authority to act for owner of 3 other units within the complex, as well as the general authority as a committee member acting for all owners in the body corporate. The defendant is a tenant within unt (sic) 2 of the complex and was engaged by the committee to provide onsite services like gardening and clening (sic) and pool maintenance. The defendant also has/had a private verbal agreement with various owners to provide meet and greet services and key exchange services for holiday let guests arriving and leaving the complex and the defendant is/was paid to provide those services. The complainant received a panicked phone call from an internation (sic) guest whom arrived at the complex to check into unit 3 and whom was verbally abused by the defendant and refused access. The complainant then called the defendant for an explanation and was caused by the defendant’s responses to fly to Cairns to resolve the situation. Matters escalated and details are within annexure A, annexure B, annexure C, annexure D, attached to this complaint.”
- This handwritten narrative in the complaint incorporated the annexures by reference.
- Annexure A is a congratulatory letter dated 24 October 2016, from the body corporate managers to the respondent, for his appointment to the body corporate committee and included documents relevant to the role. The information provides some relevant context to the appellant’s likely interaction with the respondent as a unit owner and as a member of the body corporate committee.
- Annexure C is an email from the appellant to the respondent (and others) sent on 14 October 2017 at 20:17, which makes complaint of the tenant at unit 4), ‘torrent of fowl, insulting, abusive, threatening, language …’ upon being asked to move his car for tradesmen’s access; the appellant retreating from the ‘abuse’ and threats of ‘taking me out’ and the respondent refusing to answer his door; the respondent’s conduct and response when told of the events later and that the appellant ‘had a meltdown and told [the tenant] to fuck off and leave me alone, several times, now I need time to look after my health’; then describing people as ‘pathetic, disgusting and they need to be accountable for their actions, when you associate (sic) dogs you will catch flees …’. The correspondence describes significant volatility and animosity between the appellant and the respondent, and apparent exasperation of one or both.
- Annexure B, is an email reply from the respondent (as body corporate treasurer) to the appellant (and others) sent 14 October 2017 at 23:54, which refers to: derogatory remarks attributed to the appellant; events of an assault by the appellant throwing a can of soft drink at the respondent; withholding unit keys from, and acting aggressively towards, the respondent’s guests, neighbour, and cleaner; ‘unlawfully’ changing a lock and refusing the respondent’s access to a storeroom (to retrieve personal property); being ‘physical and threatening’ and ‘yelled obscenities and demanded that I get the f** out’ when the complainant later gained access to the storeroom by intervention of the body corporate manager; waking the respondent by noise involving a neighbour and that he ‘banged violently on the door’ and ‘yelling obscenities’; insisting the respondent follow him while holding his arm to explain ‘what all the commotion was that woke me up with’, and reports of the appellant ‘attacking’ other guests by ‘yelling at them’ purporting to be the ‘onsite manager’, ‘physically stopped their guest from entering and caused a disturbance’, and finally, foreshadowing that the appellant ‘will be contacted further by the police regarding the charge of common assault’. Again, the correspondence describes an escalation in the volatility and animosity between the appellant and the respondent, with an assault, obscene and abusive language, man handling, hindering access by guests and interfering with the respondent’s access to his property.
- Annexure D is an annotated business card from a constable of the Queensland Police Service, in furtherance of the reported conduct and identification of a potential investigator and witness.
- Even accepting that the allegations about the appellant’s conduct described in the correspondence could be characterised as volatile, intimidating, verbally abusive and aggressive, they fall well short of amounting to a threat in relation to the respondent or his property required by s 5(1) of the Act. In my respectful opinion, it is difficult to fathom how the matter of a complaint was substantiated to the justice’s satisfaction, or how the justice considered it is reasonable in the circumstances for the complainant to have the requisite fear.
Intentional conduct directed at, and caused, the complainant fear for property
- When taken in context, it seems to me that the allegations in the complaint provided sufficient indicia conduct directed at the complainant but it is difficult to see how such conduct could be said to be causative of the complainant’s fear that the appellant will destroy or damage his property. Again, in my respectful opinion, it is difficult to fathom how the matter of a complaint was substantiated to the justice’s satisfaction, or how the justice considered it is reasonable in the circumstances for the complainant to have the requisite fear required by ss 5(2) and (2A).
- Whilst it does not appear how the justice reached the result culminating in issuing the summons, it was nevertheless issued, and the matter of complaint went to a contested hearing in the Magistrates Court. In that event, the court was charged to hear the matter on its merits, and any aggrieved party can appeal the magistrate’s decision pursuant to s 222 of the Justices Act 1886 (Qld).
- I do not accept that this court in its appellate jurisdiction ought conduct some judicial review of that underlying decision. However, it is unnecessary to come to any final conclusion on the point having regard to the reasons below and the outcome of other grounds of appeal.
Admissibility of late statement
- Mr Waller’s statement was made on 12 June 2018 in relation to the defendant’s behaviour towards him on 5 and 11 of June 2018. The court admitted the statement over the appellant’s objection, and the witness was made available for cross-examination, but the appellant elected not to do so.
- The appellant argues that the learned magistrate erred in admitting the evidence of Greg John Waller in circumstances, in the absence of proper advance notice, or alternatively, because it was irrelevant. In contrast, the respondent asserts that the late notice was excusable, and the evidence is relevant.
- The proceeding was subject of routine case management. On 1 May 2018 direction orders required the respondent to file and serve witness affidavits and statements on or before 18 May 2018, and make each witness available for cross-examination, except with the consent of the other party and the court’s leave. The orders also foreshadowed the need for the court’s leave to call oral evidence-in-chief ‘in relation to events or conversations occurring after the relevant date for the filing and serving of the affidavits or statements or in exceptional circumstances’.
- At a hearing both parties ought have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It would be a rare case, absent a statutory provision, to exclude relevant and admissible evidence, unless it would be unfair to admit that evidence. Such unfairness may be met by an adjournment. In Aon Risk Services Australia Limited v Australian National University, the High Court affirmed that the just resolution of proceedings remains the paramount objective and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case. The appellant did not seek an adjournment.
- The critical issue is whether the evidence was relevant and admissible.
- Mr Waller deposed about the defendant’s behaviour towards him on 5 and 11 June 2018. As to the first occasion Mr Waller stated that:
“4. On Tuesday the 5th of June 2018, I was at the Winston Apartments at 261 Sheridan Street, Cairns. I was there to clean a friend’s unit.
5. I parked my yellow coloured ute in the general carpark at the Winston Apartments. I have remote access to the carpark.
6. I went into my friend’s apartment to clean and then I returned to my vehicle and I observed a note on the front windscreen. This was around 12:16pm.
7. This note said “Your vehicle is not registered to any tenant here. Please respect the Body Corporate By Laws. No Visitor Parking on site. Thank you for your cooperation. Regards Mal.”
8. I thought this was odd.
9. I got back into my ute and drove off and I heard a ‘pop’ sound. I stopped my ute and walked around it to find anything I might have driven over but I couldn’t see anything.
10. Later that night I noticed my rear left type was flat and a screw was in it. I believe this was what I had driven over. I suspect someone had purposely placed the screw in front of my tyre to cause damage.”
- As to the second occasion Mr Waller goes on to state as follows:
“11. At 11:30am on Monday the 11th of June 2018 I was at the Winston Apartments. I had finished cleaning my friend’s unit.
12. I was walking pass my ute towards the bin with rubbish form the unit.
13. I then heard Malcolm TOLHURST yell out to me “is that your fucking car?”.
14. I said “yes, so?”.
15. He said “get that fucking thing out of here. You’re not allowed to park on these premises”.
16. I continued to walk to the bin and stated “check your by laws. I can park anywhere in here I want. So leave me alone”.
17. He then walked right up to my face and said “what did you fucking say to me?”.
18. I stated again “I can park where ever I want. Piss off and leave me alone.”
19. He then pushed his chest onto me.
20. I felt the force of his chest pushing onto the right side of my chest.
21. I felt violated, scared and threatened.
22. I’ve said “what the fuck do you think you’re doing. Get away from me”.
23. He was still in my face and pushing into my chest the same was, trying to stop me from getting to the bin.
24. He pushed me another two more times with his chest. He was doing (sic) quite nastily and aggressively.
25. I felt threatened and scared of Malcolm as this is not normal human behaviour. I felt ashamed.
26. This lasted about twenty to thirty seconds as I was walking to the bin.
27. At no point in time did I give Malcolm TOLHURST permission to assault me or verbally threated me.
28. I moved away and went to put rubbish in the bin.
29. Then I walked along the other side of the carpark towards the unit.
30. Malcolm yelled out to me “I’ll have your car towed”.
31. I said “if you think you can, go for it”.
32. Malcolm said “just fuck right off”.
33. I said “I am going to call the police if you don’t stop”.
34. He said “I will kill you fucking fags”.
35. I said “try it, what are you going to do? Put another screw in my tyre?”/
36. He just laughed at me.
37. I then walked down the corridor towards the unit and I couldn’t see him.
38. I then walked back to my ute with the laundry and put it inside.
39. I then drove my ute out of the carpark.”
- The question as to relevance is whether the evidence, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue. It may do so indirectly, as Gleeson CJ observed in HML v R, evidence may be relevant if it assists in the evaluation of other evidence.
- The relevant facts in issue are comprised in the complaint, in particular:
- Whether the appellant threatened to: (a) assault or to do any bodily injury to him or to any person under the care or charge of the complainant; or (b) destroy or damage any property of the complainant; and
- Whether the complainant is in fear of the appellant within the meaning of s 5(1).
Further or alternatively:
- Whether there was intentional conduct of the appellant directed at the respondent; and
- Whether that conduct has caused the respondent to fear that the appellant will destroy or damage any property of the respondent within the meaning of s 5(2).
- Mr Waller was produced to affirm his statement on oath but was not cross-examined. His evidence remained unchallenged and contradicted. The respondent relied upon the evidence as relating to the continued aggressive behaviour of the appellant “not towards myself, but towards friends of mine, visitors to the complex”. The evidence was admitted over the appellant’s objection that it was not relevant. The learned magistrate admitted the statement and remarked that “he gives what could be inferred as a direct threat, so it’s relevant”, which seems to be a reference to paragraph 34 of the statement on the assumption that the vernacular included a reference to the respondent.
- In the decision, the learned magistrate equated the rationale to admit and use of Mr Waller’s statement with the respondent’s statement as follows:
“The issue is … I am satisfied, and I make it plain, that the assault and the confrontation evidence in the [respondent’s] statement … can be used as a fact to allow the inference that the complainant has fear that … the defendant will destroy or damage his property and that is due to animosity and irrational behaviour. …
That rationale also does, I consider, allow me to use the statement of the witness Waller. And, again, this is about verification of the fear at the time, substantiation of the fear of intentional conduct directed to the complainant gives rise to a fear of damage. That is at the time. I make that plain, but, again the issue of the exercise of the discretion and substantiation of the complaint by evidence does not require the court to ignore everything that happened after October 13. That, again, would be absurd because this is protective legislation; it’s about preventing future problems.
Mr Waller’s statement sets out the behaviour of the defendant, the respondent, unchallenged as of 5th June 2018. Ignoring any connection with Mr Villan it still would be admissible to show his state of mind, how he deals with people who visit. The fact that there’s strong inference that there may have been tampering with the screw onto the car and that he was prepared to make serious obscene threats to kill, using the terms – and I don’t like to repeat them, but it needs to be said for the record, “I will kill you fucking fags”.
Now, ignoring, as I said because I accept what Mr Mellick said, it wasn’t probably because of a lack of legal representation properly connected in evidence, Mr Waller’s statement can be used, I am satisfied, to demonstrate that the defendant was largely at this time indifferent to accusations of causing damage and was prepared to make very serious threats to kill in obscene terms. I do consider that relevant evidence, relevant evidence to the issue of the reasonableness of any fears of Mr Villan and also relevant evidence to the extent whether I exercise discretion now to make an order.”
- In contrast to a criminal prosecution, which renders a person culpable for past offending against a person or property, the Act is designed to operate prospectively to protect the safety, welfare, security and peace and good order of the community from risks presented by others engaging in antisocial, disorderly or criminal conduct. This main object is achieved, amongst other ways, by empowering magistrates to make orders that require a person to keep the peace and be of good behaviour. To this end, evidence of past conduct is admissible and relevant to assessing the risk of future breach of peace and the need to protect people from that risk.
- In my respectful view, it seems to me that the learned magistrate impermissibly conflated the issue of the appellant’s intentional conduct (including as alleged by Mr Waller) with the substantiation of the respondent’s fear. And in doing so, Her Honour, has relied upon the witness’s speculation about the provenance of the screw, and reference to the respondent in the vulgar threat.
- Sub-section 5(1) does not expressly have a causative element, however, the provision calls for some logical and rational connection between fear and some threat to person or property. In contrast, sub-section 5(2) does requires some intentional conduct to be directed at, and cause fear in, the complainant.
- The respondent properly acknowledged, the conduct described by Mr Waller on the two occasions was not directed to him, but rather, was conduct directed to Mr Waller and a class of persons referred to as “fags”. That is, the animosity and irrational behaviour or manifestation of some state of mind (relied upon by the learned magistrate) is confined to the appellant’s dealing with other people who visit the complex. There was no evidence that Mr Waller was cleaning the respondent’s unit, or that the respondent was his friend referred to or that the respondent was in the class of persons that the appellant referred to as “fags”. There was no evidence that the events involving Mr Waller were communicated, or otherwise known, to the respondent. There was no factual foundation laid to support an inference that the respondent feared that the appellant will destroy or damage his property or otherwise providing some verification of the respondent’s fear at the time. It must then follow that there is no logical and rational connection between the appellant’s conduct involving Mr Waller, and relevant facts in issue subject of the complaint.
- In the absence of any such factual foundation, it seems to me that the content of Mr Waller’s statement does not rationally affect the assessment of the probability of the existence of a fact in issue, or otherwise assists in the evaluation of other evidence. The statement should have been excluded from the evidence, and from the learned magistrate’s consideration when determining the matter.
- In my respectful opinion, the learned magistrate allowed these erroneous or irrelevant matters to guide or affect her and the resultant orders are infected by that error. Therefore this ground of appeal is made out and the appeal ought be allowed.
Decision unreasonable & unsupported by evidence
- The learned magistrate was not satisfied about any threat in terms of s 5(1), but was satisfied that the defendant appellant’s intentional conduct directed at the complainant respondent caused him to fear that the defendant will destroy or damage any property of the complainant in terms of s 5(2) of the Act.
- The appellant argues that that there was no basis, or no proper basis, for any finding that the intentional conduct of the appellant caused the respondent to fear that the appellant would destroy or damage his property.
- In Warren v Coombes, the majority of the High Court reiterated the rule that:
“In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”
- I have found that the trial magistrate’s findings of fact based on inference have been infected by erroneous or irrelevant matters, and the matter warrants reconsideration in any event.
Issues to be determined
- The facts in issue are:
- the appellant threatened to: (a) assault or to do any bodily injury to him or to any person under the care or charge of the complainant; or (b) destroy or damage any property of the complainant; and
- Whether the complainant is in fear of the appellant within the meaning of s 5(1).
Further or alternatively:
- Whether there was intentional conduct of the appellant directed at the respondent; and
- Whether that conduct has caused the respondent to fear that the appellant will destroy or damage any property of the respondent within the meaning of s 5(2).
- Section 7 provides the court with a wide discretion as to whether or not to make an order determining the complaint, and upon a consideration of the evidence, the court may dismiss the complaint, or make an order that the defendant shall keep the peace and be of good behaviour for such time, and with stipulations or conditions as the court thinks fit.
- In contrast to the decision of the justice to issue a summons under s 5(2A), there is no prescription for the court to find that is reasonable in the circumstances for the complainant to have the relevant fear.
“The ‘matter of the complainant’ is the threat and that the complainant is in fear of the person complained against; s 6(1) does not expressly require the Magistrates Court to be satisfied that it is reasonable in the circumstances for the complainant to be in fear of the person complained against, and it is unnecessary for the present purposes to determine whether such a requirement need always be met; however, it would ordinarily be inappropriate to make an order against a person complained against unless the complainant had a reasonable fear of that person. Some support for that view is to be found in part (iii) of the Act, under which a person who contravenes an order commits an offence rendering him or her liable to a substantial penalty.”
Standard of Proof
- Pursuant to s 81 of the Act, a question of fact is to be decided on the balance of probabilities.
- The seriousness of the allegations, and the gravity of the consequences of the proceedings, also enlivens consideration of the Briginshaw principles. In Briginshaw v Briginshaw, Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”
- The principle is that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary. In practical terms, this means that for more serious allegations, the court ought more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities.
- However, this principle in Briginshaw does not create another standard of proof. That is, it does not displace the requirement that the court “need only” be satisfied on the balance of probabilities; instead it permits the court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach. So much was affirmed by the High Court in Refjek v McElroy, and Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd.
- In my view, the seriousness of the allegations in this case, and the gravity of their consequences, warranted that higher degree of certainty to be satisfied on the balance of probabilities. The magistrate well appreciated these matters as disclosed in her decision.
- In his statements, the respondent said:
“3. I can recall the events of October 13 2017 between the time of 10:30am and 10:58 am.
4. I saw Mal TOLHURST approach me as I walked towards my hire car I saw him get closer, and then he pulled me aside to talk about the argument he had with another tenant in unit 4 earlier in the day. I remember TOLHURST continued to talk as we walked towards his own personal unit number 2.
5. I remember TOLHURST became more aggressive as the conversation continued, and then he started to yell out and become louder directing his anger towards me. TOLHURST has then yelled at me the words “I called my friends in the police to have the tenant arrested”.
6. I asked TOLHURST on what grounds TOLHURST replied with the words “for refusing to move his car, and for refusing to follow my directions, and for being aggressive when arguing with me this morning”. I told TOLHURST with the words to the effect of “the tenant told me his car was having starter problems and it was temperamental, that it may not start”.
7. I remember TOLHURST replying to me in the words to the effect of “I don’t care; I’ll have it towed” I told TOLHURST “you can’t if you are in a dispute it’s a residential tenancy matter and you cannot harass him or other tenants like you have done as recent as yesterday to me and other owners”.
8. I then told TOLHURST you should not make statements like “your friends at the police will arrest people”. I remember TOLHURST replied back to me with the words “they are my friends and they have been for many a time and done what I have asked them to do”.
9. I recall telling TOLHURST with the words to the effect of “you cannot say that; the police will act on the evidence not on any friendship you may have with them”. I told TOLHYURST “the bylaws for the complex are outdated and the council changed the zoning and what were previously driveways for a hotel are now not the thoroughfares, so anyone can pull up their car there”.
10. TOLHURST replied with the words “fine I will go and park my bus there and stop everyone from using this space”. I said to TOLHURST with the words “that will just cause more conflict” I remember TOLHURST replied to me with the words “I don’t give a fuck I work and he is a bludger like most of the tenants here”.
11. I recall replying to TOLHURST with the words “well it’s a residential tenancy matter”. I saw TOLHURST take a deep breath and pump up his chest and began to scream at me with words to the effect of “fuck the tenancy law, and fuck you and fuck him and fuck you all just fuck off fuck right off”. I saw TOLHURST pick up a full can of Pepsi Max and overhand throw it at me and struck me on my right side. I remember trying to move out of the way but could not.
12. I saw TOLHURST turn and go back to his personal unit and slam the glass door violently. I remember hearing TOLHURST through the enclosure continue to yell abusive language with words like “fuck off”.
13. I stepped away and called police with my mobile phone to report the matter, I remember looking up and seeing the security cameras in place and told this to the police all this was caught on CCTV for further viewing.”
- Glenn Hamson stated that:
“5. On the 13th day of October 2017 at some time in the morning I was at my address which is Unit 4 of 261 Sheridan Street, Cairns North.
6. I was on my balcony getting tools for my starter motor.
7. When I was outside I could hear a loud heated argument between two people which was coming from a few units down.
8. I could hear the voices of Mal and Jade coming from two units next to mine. I know this unit to belong to Mal as he lives two units down from me.
9. I took a few steps and could see around the corner. I saw Jade standing out on the path but I could not see Mal.
10. I was about 10-15 metres away from made but could see him clearly.
11. I do not remember exactly what was said but I remember Mal was not getting his way and was swearing aggressively at Jade.
12. I remember Jade seemed a bit distressed and telling Mal that he could not do what he was doing.
13. The argument between them went on for about 5 minutes.
14. After some time, I saw a can soft drink flying through the air from Mal’s unit and it hit Jade in his chest.
15. I saw when Jade got hit, he took a step back.
17. I then saw Jade walk away and saw him calling someone on his phone.
18. A short time later Jade came over to my apartment and spoke to me about what happened.”
- Jared Cook stated that:
“2. On 04 February 2018 I went to the Winston at 261 Sheridan Street Cairns North with Jade Villan and waited for Eddie Williams Locksmiths to attend to investigate and repair the entry door lock on unit 11 because Jade’s cleaner had advised that she could not get the key to work because something seemed to be in the lock and she needed to clean the unit for expected holiday guests.
3. Jade was not occupying his Winston property at the time and was travelling between his Brisbane address and Cairns and Jade asked me to accompany him in case Malcolm caused any trouble.
4. Jade has a cleaning lady that lives in Cairns and she cleans unit 3 and unit 11 at the Winston and keeps Jade informed of guest needs. I have met her.
5. While waiting at the Winston with Jade outside the door to unit 11 before the Locksmith arrived, Malcolm Tolhurst walked past very slowly and said in a sarcastic tone, whats happened to your lock Jade? Jade said I am waiting for the locksmith to arrive because someone has done something to it. Mal Tolhurst laughed and said I wonder who that could of been.
6. I immediately thought it was strange that Malcolm already knew that something had happened to the lock.
7. The Locksmith eventually arrived and removed the door lock and pulled it apart to investigate. He showed Jade and I a metal staple and said this staple was put into the key hole and jammed it up. Jade took photographs and the Locksmith cleaned and reassembled the lock.”
- The effect of Mr Cook’s testimony was not disturbed during cross-examination.
- The four documents annexed to the complaint and marked A, B, C & D were not in evidence or referred to by any witness. The testimony of the respondent and Mr Hanson was, at best, generally consistent with the allegations recited in annexures B and C, but the evidence left significant and irreconcilable gaps in the respondent’s case. Further, Mr Cook’s testimony related to events of 4 February 2018, being well after the matters of complaint, and not subject of the respondent’s evidence at all.
- As was found by the learned magistrate, and I respectfully agree, the evidence did not show any threat of the kind required by s 5(1) of the Act, or indeed, any threat at all about the respondent. That is, the respondent failed to prove on the balance of probabilities that the appellant threatened to (a) assault or to do any bodily injury to him or to any person under the care or charge of the complainant; or (b) destroy or damage any property of the complainant.
- As to the matters relevant to s 5(2) of the Act, the highest evidence of intentional conduct of appellant directed at the respondent comprises:
- (a)Midmorning on 13 October 2017 over a period of about 28 mins, the defendant became increasingly aggressive and louder towards the respondent, about calling “his friends” at the police on the tenant of unit 4 “for refusing to move his car, and for refusing to follow my directions, and for being aggressive when arguing with me this morning”. And threatening to have that tenant’s car “towed”, or “park my bus there and stop everyone from using this space”. Calling the tenant a “bludger like most of the tenants here”. And at one stage, the appellant took a deep breath and pumped up his chest and began to scream at the respondent something like “fuck the tenancy law, and fuck you and fuck him and fuck you all just fuck off fuck right off”. Then he threw and struck the respondent’s body with a full can of soft drink, returned to his unit and slammed the glass door violently, and yelling abusive language with words like “fuck off”.
- (b)The respondent “seemed a bit distressed and telling [the appellant] that he could not do what he was doing” and then “saw a can soft drink flying through the air from [the appellant’s] unit and it hit [the respondent] in his chest … he took a step back”, then “walk away” and make a mobile phone call.
- (c)On 4 February 2018 while Mr Cook and the respondent waited for locksmiths outside the door to unit 11, the appellant walked by and asked the respondent about the lock in a “sarcastic tone”, and when the respondent told him someone has done something to it, the appellant “laughed” and said “I wonder who that could of been.” The Locksmith found “a metal staple and said this staple was put into the key hole and jammed it up.”
- There is a dearth of evidence that such conduct has caused the respondent to fear that the appellant will destroy or damage any property of the respondent, and a dearth of evidence showing that any asserted fear was reasonable (if required).
- The appellant’s intentional conduct could be characterised as volatile, intimidating, verbally abusive and aggressive on 13 October 2017 about a tenant’s property, but it is difficult to find that the conduct caused the respondent to fear that the appellant will destroy or damage his property. I think the evidence of 4 February 2018 is too vague and speculative to properly found an inference that the appellant was responsible for the interference with the door lock. Even if, on the contrary it could reasonably be so inferred, there is no evidence that that conduct caused the respondent to fear that the appellant will destroy or damage his property. Some general feeling of fear of the appellant is not enough to satisfy s 5(2).
- It seems to me that, taken at its highest, the evidence does not meet the higher degree of certainty to be satisfied on the balance of probabilities to warrant the making of a peace and good behaviour order pursuant to s 7 of the Act.
- For these reasons, I find that the decision unreasonable or cannot be supported by the admissible evidence, and there was a wrong decision at law, and a miscarriage of justice, and I am bound to allow the appeal.
- In anticipation of that event, the appellant applies for costs of both the hearing at first instance and this appeal. On the other hand, the respondent contends that each party ought bear their own costs.
- Section 226 of the Justices Act provides that a judge may make such order as to the parties’ costs incurred in the bringing of an appeal under s 222 as the judge thinks just. The discretion must be exercised judicially, to compensate a successful party, and not by way of punishment of the unsuccessful party.
- The appellant was ultimately successful in the appeal. The nature and complexity of the proceeding is evident from this judgment and reasons. The merits of the appeal were relatively strong and supportable by sound law and able argument. The conduct of the parties to the proceeding before and during the proceeding was generally appropriate, as were the nature and extent of the documents. The respondent asserts that the appellant failed to properly engage in mediation prior to hearing or effectively serve documents in the appeal. However, I am unable to discern any particular misconduct in the appellant about these matters. Instead, the respondent by prosecuting the complaint forced the appellant to endure further proceedings and prolonged apprehension, costs, delay and inconvenience. In the circumstances of this case, it would be inequitable for the appellant to bear the financial burden of the successful recourse to this court and it would be just and reasonable to compensate him for costs. The circumstances do not qualify for any orders under the Appeal Costs Fund Act 1973 (Qld).
- In the circumstances, I will order the respondent pay the appellant’s costs of the appeal.
- As to the costs at first instance, s 158(1) of the Justices Act, also provides that:
“When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.”
- Pursuant to s 232A and the Justices Regulation 2014 (Qld), in deciding the costs that are ‘just’ the judge may award costs only:
- (a)in relation to an item allowed for under the scale of costs that is contained within Schedule 2 of the regulation; and
- (b)up to the amount allowed for that item under the scale.
- Pursuant to s 232A(2), a judge may only allow a higher amount for costs if satisfied that the higher amount is just because the appeal involved some special difficulty, complexity or importance. Matters of this type do not demand special skill, labour, specialist knowledge and responsibility of the representatives, but has involved significant time, research and consideration of the questions of law and fact agitated in the case.
- Therefore, I fix the amount of costs at $3,000, calculated as follows:
- (a)Instructions and preparation for the Magistrates Court hearing $1,500.00
- (b)Attendances in the Magistrates Court for case management $250.00
- (c)Instructions and preparation for the District Court hearing $1,000.00
- (d)Attendances in the District Court for review, directions & judgment $250.00
- (e)Outlays in acquiring transcripts of the Magistrates Court hearing $613.80
- Therefore, I allow the appeal, set aside the orders made by the Magistrates Court on 19 June 2018 and substitute the following orders:
- The complaint and summons is dismissed.
- The respondent will pay the appellant’s costs of the Magistrates Court hearing and this appeal assessed at $3,000.00 plus outlays of $613.80.
Judge Dean P Morzone
Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, , McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 5.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
White v Commissioner of Police  QCA 12, -; Forrest v Commissioner of Police  QCA 132, 5 & 6; McDonald v Queensland Police Service  QCA 255, .
Peace & Good Behaviour Act 1982 (Qld), s 5(4).
Peace & Good Behaviour Act 1982 (Qld), s 6.
Laidlaw v Hulett  2 QdR 45, at 11 per McPherson JA.
 Cf. R v Allie  1 Qd R 618.
 Laidlaw v Hulett  2 QdR 45, at 16 per McPherson JA.
 Laidlaw v Hulett  2 QdR 45, at 11 per McPherson JA.
International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at -.
 Cf. s 130 of the Evidence Act 1977 (Qld).
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175,  per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Allianz Australia Insurance Limited v Mashaghati  QCA 127,  citing AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175,  per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
 Cf. Smith v R (2001) 26 CLR 650 at .
HML v R (2008) 235 CLR 334 at .
 D1-8/28 - 9/14
Laidlaw v Hulett  2 QdR 45 at 50.
Peace & Good Behaviour Act 1982 (Qld), s 4(1).
Peace & Good Behaviour Act 1982 (Qld), s 4(3).
Laidlaw v Hulett  2 QdR 45 at 49 & 50.
Chidiac v R (1991) 171 CLR 432, 443-4 per Mason CJ, 452-3 per Dawson J, 459 per Gaudron J; Knight v R (1992) 175 CLR 495, 503 per Mason CJ, Dawson and Toohey JJ.
Morris v R (1987) 163 CLR 454, 463-4, 466 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ, 477-9 per Dawson J.
Warren v Coombes (1979) 142 CLR 531, 551 affirmed in Fox v Percy (2003) 214 CLR 118, 127  per Gleeson CJ, Gummow J and Kirby J.
 Laidlaw v Hulett  2 Qd R 45.
 Laidlaw v Hulett  2 Qd R 45, 47.
Briginshaw v Briginshaw (1938) 60 CLR 336, at 362.
Domestic and Family Violence Protection Act 2012, s 145(2).
 Cf, Qantas Airways Ltd v Gama (2008) 167 FCR 537 at  per French and Jacobson JJ. See also Palmer v Dolman  NSWCA 361; Victoria v Turner (2009) 23 VR 110 at - per Kyrou J.
Refjek v McElroy (1965) 112 CLR 517.
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170.
 Exhibit 1.
 Exhibit 2.
 Exhibit 3.
 Exhibit 4.
 Exhibit 1.
 Exhibit 2
 Exhibit 4
 Latoudis v Casey (1990) 170 CLR 534.
 Scanlon v Queensland Police Service  QDC 236.
- Published Case Name:
Malcolm Tolhurst v Jade Villan
- Shortened Case Name:
Tolhurst v Villan
 QDC 263
13 Dec 2018