BAK v Gallagher[2018] QDC 32

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, BAK, appeals under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”), against the decision made by the learned Magistrate in the Southport Magistrates Court on 3 July 2017, to make a protection order against him pursuant to s 37 of the Act.  The notice of appeal was served on the first respondent, who was the relevant police officer who made the original application for the aggrieved second respondent to this appeal.  The appellant filed written submissions and appears represented by Mr O'Meara of counsel.  The first respondent has filed submissions opposing the appeal and appears represented by Mr O'Brien, a senior legal officer with the police, who also prepared the written submissions on behalf of the first respondent.  The second respondent was served with the notice of appeal but did not file written submissions or appear at the hearing of the appeal. I do not consider her non-attendance unusual, or her attendance in these circumstances necessary. 

2. [2]
   After considering the matter and hearing oral submissions this morning, I have determined that the appeal ought to be allowed. The order of the Magistrate is set aside and the matter is to be remitted back to the Magistrates Court for hearing. These are my reasons.

Relevant Legal Principles

3. [3]
   Section 169 of the Act sets out the powers of the appellate court, and provides in deciding an appeal the appellate court may: (a) confirm the decision appealed against, or (b) vary the decision appealed against, or (c) set aside the decision and substitute another decision, or (d) set aside the decision appealed against and remit the matter to the Court that made the decision.

4. [4]
   The appeal is by way of a rehearing on the evidence given in the proceeding before the Magistrate. This court must have regard to all of the evidence now before it and determine whether the order made by the Magistrate, the subject of the appeal, is the result of some legal, factual or discretionary error.^[1]  The appeal requires this Court to conduct a real review of the trial and the Magistrate’s reasons and make its own determination of relevant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[2] 

5. [5]
   The question is not whether the appellate court may of itself make a different finding but is rather whether the finding made by the Magistrate was reasonably open on the evidence before them.^[3] 

6. [6]
   The hearing of the application in the Magistrates Court was held on 3 July 2017.  A number of affidavits were filed or tendered at the hearing, including an affidavit from the second respondent, the appellant and his wife.  A bundle of documents called a line tap history were also tendered. 

7. [7]
   Before turning to the issues at the hearing, it is convenient to turn to the discretion to make a protection order. Section 37 of the Act confers a discretion on the Court whether to make a protection order. Relevantly, this section sets out the elements that a Court must be satisfied of before it may exercise such a discretion as follows:

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

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

8. [8]
   Under s 37(2), in deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the Court must consider the principles mentioned in s 4 of the Act. This section provides, under (1), that:

The Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experienced domestic violence, including children, are paramount.

9. [9]
   And that subject to that section, the Act is to be administered under principles which include that:

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 practical , the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under the Act;  and
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 an opportunity to change.

10. [10]
    Section 8 of the Act provides relevantly the meaning of domestic violence to include physical or sexually abusive conduct, or someone that in any way controls or dominates a second person and causes that person to fear for their safety or wellbeing. Section 145 of the Act also relevantly provides:

1. (1)
   In a proceeding under this Act, a court -

1. (a)
   is not bound by the rules of evidence, or any practices or procedures applying to courts of record;  and

2. (b)
   may inform itself in any way it considers appropriate.

2. (2)
   If the Court is to be satisfied of a matter, the Court need only be satisfied of the matter on the balance of probabilities, and

3. (3)
   To remove any doubt it is declared that the Court need not have the personal evidence of the aggrieved before making a domestic violence order.

The Hearing Below

11. [11]
    It was not in dispute that a relevant relationship for the purposes of the Act existed between the appellant and the second respondent.  The alleged acts of domestic violence were: first, the nature of the intimate relationship, and during the course of that relationship it was alleged the appellant had controlled and intimidated the second respondent and treated her as a sex slave; second, an alleged sexual assault at a home listed for sale when it was open for inspection on 23 July 2016; third, a further allegation of sexual assault at the appellant’s real estate office on 18 August 2016 where it was alleged that the second respondent’s breasts were touched; and finally, that the appellant, directly and indirectly, contacted the second respondent in or about February 2017.

12. [12]
    At the hearing the second respondent was called and cross-examined. The appellant and his wife also gave evidence and were cross-examined. After hearing all of the evidence on the day of trial, the Magistrate delivered an ex tempore judgment later in the afternoon. In his reasons, the Magistrate did not find the first allegation proved, that is, the allegation that the appellant treated the second respondent as a sex slave. His reasoning was that, having reviewed a number of phone SMS messages passing between them, there was a mutuality in relation to the exchanges such that the allegation was not established. No issue was taken with this finding on appeal. In his reasons, the learned Magistrate found that on the balance of probabilities, however, the alleged conduct which occurred at the open house event on 23 July 2016 took place and constituted an act of domestic violence. That finding is the central subject of the current appeal. Unfortunately, the Magistrate did not make any findings about allegations (3) and (4), presumably because he had found allegation (2) proven. For reasons which I will articulate later, the Magistrate’s failure to turn his mind to these other allegations, particularly the third allegation, feeds into the overall appeal.

Appeal Grounds

13. [13]
    Turning now to the facts.

14. [14]
    The appellant’s notice of appeal filed 28 July 2017 raises nine grounds of appeal. There is, in my view, a great deal of overlap to the grounds, which is often the case in such matters. This is not meant as a criticism of the appellant. The grounds of appeal are:

1. (1)
   the Magistrate erred in finding that an act of domestic violence occurred as it was unreasonable and against the weight of the evidence; 

2. (2)
   the Magistrate erred in not applying the correct standard of proof, namely that it is required to be satisfied on the balance of probabilities that the act of domestic violence had occurred; 

3. (3)
   the Magistrate erred in failing to address himself with respect to the assessment of the evidence;

4. (4)
   the Magistrate failed to warn himself, or take into account the danger of acting upon the evidence of the second respondent after he had found not proven the first allegation of an act of domestic violence;

5. (5)
   the Magistrate erred in failing to provide any or adequate reasons for preferring the evidence of the aggrieved;

6. (6)
   the Magistrate erred in that he failed to weigh the competing evidence in a considered way and failed to make specific findings as to what occurred in relation to the proven act of domestic violence;

7. (7)
   the Magistrate erred in that he failed to correctly characterise submissions made in the evidence and that he only referred to one aspect of his summary, and, therefore, there is no basis for assessing the weight given to the unmentioned submissions in regards to other evidence, or if any consideration was given to them at all;

8. (8)
   the Magistrate erred in that it was neither reasonable nor tenable to reconcile the aggrieved’s inconsistent evidence being explicable by the submissions of the prosecutor; and

9. (9)
   the Magistrate erred in finding that the making of the protection order was necessary or desirable and that he stated that it was both necessary and desirable. 

Analysis

15. [15]
    It was relatively uncontroversial at the hearing, that the circumstances surrounding the application for a protection order arose in the context that the appellant and the second respondent worked together at Ray White Real Estate at Labrador. The second respondent had commenced work there in approximately August 2014. The appellant was the principal at this real estate.

16. [16]
    About eight weeks into the second respondent commencing work, the appellant and the second respondent, who were both in other relationships, commenced a sexual relationship which lasted for some 18 to 20 months. There was some controversy in the evidence about the way the relationship ended. The second respondent’s evidence was that she ended it in June 2016, at which time she informed her partner and the appellant’s wife of the affair. The appellant’s view was that the relationship ended at this time but it was done to bring the matter to a head, and that it did not necessarily mean that the relationship was over.

17. [17]
    The primary focus of the hearing below and, indeed, the Magistrate’s judgment, was the incident that occurred on 23 July 2016. The second respondent says she was working in an open house which the appellant attended. On this occasion the appellant allegedly sexually assaulted her in that he tried to hug and kiss her, lifted her skirt and touched her private area on the outside of her underwear, grabbed her hand and pushed it towards his penis, required her to kiss him and forced her to touch his penis such that she had to run off to the other side of the kitchen.

18. [18]
    The appellant’s case was that after the clients had left the open home there had been a positive expression of interest in the property, and the appellant and the second respondent had hugged and kissed mutually, and that the second respondent had told the appellant that she was a lady, which meant she had her period. The appellant’s case was that the kiss was how they usually kiss and that he would rest his hands on her buttocks. His version was that this was not resisted and the kiss continued and there was no resistance or refusal and it was mutual. He denied that he lifted up her skirt at any time, nor did he touch her private area or the outside of her underwear, nor did he grab her hand and push it towards his penis.

19. [19]
    The appellant and the second respondent returned to the office afterwards, and there was interaction between them regarding the sale, and the second respondent gave the appellant a half-eaten lamington. It was uncontroversial that there was an exchange of text between the second respondent and the appellant, and that the second respondent had sent messages after the incident. In essence, the appellant did not dispute that there had been an interaction of a sexual nature of some type between him and the second respondent on 23 July 2017, but his version was that it was consensual and not all the acts alleged occurred. The second respondent’s version was that it was non-consensual. At the hearing, the second respondent also relied on an earlier email sent to the appellant on 27 July 2016 stating that his conduct on the day had been disgusting and awful and unacceptable and that she had been through severe mental damage from him.

20. [20]
    In his Reasons, the Magistrate stated as follows:

I watched both witnesses give evidence about the event to varying degrees.  On her part she was cross-examined at length about it.  He was not cross-examined much about the event at all, but she certainly received a very thorough examination and, in my view, I tend to believe what she has said about there being an unwanted sexual advance by him on that occasion.  My view is that that was a sexual assault, and whilst might not believe her beyond all and any reasonable doubt as one would have to in a criminal court if he was ever charged with that, and I’m certainly not suggesting that he ever be charged with that, because I think the evidence really falls short of the beyond reasonable doubt standard of proof, but, nevertheless, on the balance of probability, it seems to me more probable than not that the unwanted sexual advance, and therefore the sexual assault, took place.

21. [21]
    Before me, counsel for the appellant relied on his written outline and focused on the outset upon ground 5 of the appeal, that there were inadequate reasons for accepting the evidence of the second respondent as opposed to accepting the evidence of the appellant, and that this is an error of law. That is, an error of law in failing to provide adequate reasons. In my view, having considered all the material before the Magistrate together with the written and verbal arguments, this ground of appeal has merit, and I have reached the view that there is an error of law, because the Magistrate failed to provide adequate reasons. In my view, it is difficult to discern and understand the Magistrate’s reasons or finding that and the basis on which he tended to believe the second respondent on this point.

22. [22]
    It is also not clear from the transcript exactly what his finding was in relation to the specific allegations made by the second respondent. He refers to there being an unwanted sexual advance, which he considers, quite properly, under the Act to be an act of domestic violence, but he does not make any finding about what the actual acts were. It is also difficult to discern from the reasons on what basis, or what he meant by “tending” to believe the second respondent, particularly when there was evidence that on the same day the second respondent had engaged in a text exchange, which, although I accept must be seen in the context that not all of the text messages were before the Court, certainly revealed that she was happy on that day and had sent the appellant a smiley face and a message saying goodnight. There was also some evidence that she had shared a lamington cake with him back at the office.

23. [23]
    The Magistrate seemed to have placed great reliance on the second respondent’s email some four days later, but did not address the proposition put to her that there was a dispute between the appellant and her on the Monday, two days after the incident, and that this could have explained her change in attitude. In my view, he did not address the post-event conduct sufficiently in his Reasons. It is not possible from his Reasons to assess what, if any, weight he gave to this conduct. That forms part of ground 7 of the appeal. His Honour also failed to address the inconsistency in the second respondent’s evidence about running into the kitchen and the bedroom. He seemed to place much reliance on her sticking to her story that certain events happened, although the order changed, as opposed to assessing the real issue, in my view, which was her credibility in relation to whether the interlude was consensual.

24. [24]
    That feeds into appeal ground 8. In my view, the Magistrate also failed to give reasons as to why he did not accept the second respondent’s evidence that she was a sex slave, which went to her credit, but tended to accept her evidence about the sexual assault. That feeds into ground 4 of the appeal. In my view, the Magistrate was required to make a finding about the conflicts in the evidence, given that there were clear differences in the account between the second respondent and the appellant. His Honour was duty bound at law to resolve these differences and a general finding that there was an unwanted sexual advance, because the Magistrate tended to believe the second respondent, does not provide this Court with any basis for assessing the Magistrate’s reasoning as to how he came to that conclusion.

25. [25]
    The Magistrate has not given any reasons why he rejected the appellant’s account, although he noted that he was not cross-examined much and the second respondent had been cross-examined at length. The relevance of the appellant not being cross-examined much was not really explained. It is difficult to see how a tactical decision by the police prosecutor not to do this should mean that the appellant’s version is less credible. In these circumstances, I accept the appellant’s argument that he is left with a real sense of injustice as he does not know why the evidence he gave has been rejected. The authorities establish the duty to give reasons depends on the circumstances of the case. The relevant authorities are set out in the parties’ written submissions, in particular, the appellant’s submissions at page 14 to 16.^[4]

26. [26]
    In the present case, in my view, the learned Magistrate needed to analyse the evidence of the second respondent and the appellant and state what he accepted and what he rejected and why. This was not done. He gave no or substantive reasons for rejecting the credibility of the appellant. In such circumstances I believe there is an obvious error at law and on that ground alone the appeal should be allowed.

27. [27]
    As I have intimated this error feeds into other grounds of appeal raised by the appellant, because it is difficult to know what the Magistrate took into account in reaching his decision. In particular, ground 2 of the appeal is that it is not clear on the Reasons what standard of proof the Magistrate applied. The passage that I referred to earlier in the Magistrate’s reasons does refer to the balance of probabilities and also to the criminal test of beyond reasonable doubt. What this passage does not do, in my view, is deal with the Briginshaw principle, which had been specifically referred to in the parties’ submissions to the Magistrate.  This issue, in the context of such applications as the present, was an issue I addressed in a decision I delivered ex tempore last year in 2017 in LDC v TYL & STP [2017] QDC 197, with particular reference to the decision of Judge Morzone QC in ADH v ALH [2017] QDC 103 where, at paragraphs 46 and 47, his Honour stated that:

The seriousness of the allegations and the gravity of the consequences of the proceedings, also enliven considerations of the Briginshaw principle.  In Briginshaw v Briginshaw [1938] 60 CLR 366, Justice Dixon 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 relevant 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. 

28. [28]
    What this means is that:

For more serious allegations, the Court ought to more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities. 

29. [29]
    However, it is important to recall that the Briginshaw principle does not create another standard of proof.  As Judge Morzone QC identified in ADH v ALH:

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 standard of satisfaction to discharge that standard where the seriousness of the allegation and consequences of sustaining them warrant that approach. 

30. [30]
    In the present case, right at the outset, the police prosecutor told the Magistrate that the sexual assault allegation was a serious one. On my review of the Reasons, there is no reference to a consideration of the Briginshaw principle by the Magistrate, and no inference that I can draw that the Magistrate turned his mind to this principle.  The reference in the evidence to “tending to believe” really falls short of the beyond reasonable doubt standard of proof and suggests to me that he did not consider the Briginshaw standard.  In my view, this is an obvious error of law. 

31. [31]
    In the circumstances of this case I do not think it is necessary to refer to the other specific grounds of appeal that I have not covered, except to say that, in my view, the failure to address the other allegations made by the second respondent at the original hearing, in particular that there had been another sexual assault with her breast being touched on 18 August 2016, is also an error of law.

32. [32]
    In my view, this was a matter that needed to be addressed by the Magistrate because it was relevant to the credit of the second respondent and the appellant, and it also fed into the issue that the Magistrate had to determine, having found there was a sexual assault, and that was whether or not the protection order was necessary or desirable. Having found that there was an error of law in this case in relation to the Magistrate’s finding as to the act of the domestic violence, it is not necessary for me to determine whether his Honour erred in considering whether the protection order was necessary or desirable.

33. [33]
    Having found that there was an error of law for failing to give adequate reasons and that there was also a clear failure to consider the correct standard in determining the act of domestic violence and a failure to consider the second act of domestic violence, in my view, unfortunately, I have no other option but to set aside the decision of the Magistrate and remit the matter back to the Magistrates Court. I say, unfortunately, not meant in the context of having to set aside the order, but more that ordinarily, if I was in a position to determine the matter without having to remit the matter back to the very busy Magistrates Court jurisdiction I would do so.

34. [34]
    I heard submissions from both legal representatives about whether I could determine the matter upon a review of the transcript. Initially, both legal representatives were attracted to this option because it would save the busy Magistrates Court being unnecessarily clogged and also give the parties some early determination. However, during the course of the argument, both parties resiled to some extent from this position given a number of matters which I consider make it difficult or impossible for this Court to determine. This case really turns on credit, and I do not have the benefit of the witnesses before me and given the serious nature of the allegations, in my view, it is impossible for me to be able to accept the second respondent to the requisite standard.

35. [35]
    It is in the interest of justice, particularly from the second respondent’s view, for her to have the opportunity for someone to consider these issues if the matter is to be further pursued. As I say, I see no other option but to remit the matter back to the Magistrates Court.

Other matters – was the order necessary or desirable?

36. [36]
    Before I make the formal orders, and which I will hear the parties about, I wish to say something about the relevant principles in relation to whether the protection order was necessary or desirable, particularly given. In the present case, there was only the one finding of a sexual assault by the Magistrate. In my view, there was a failure to consider the relevant principles as to whether the protection order was necessary or desirable, which is the third element required under s 37(1)(c) of the Act.

37. [37]
    The focus of this element is the paramount need for the protection of an aggrieved from domestic violence and whether imposing a protection order is necessary or desirable to meet that need. This was identified by Judge Morzone QC in MDE v MLG to be a wide and general power to be construed liberally.  In MDE v MLG [2015] QDC 151 at paragraphs 32, 52 and 55 Judge Morzone QC provides a useful summary of the principles, and in particular that:

Firstly, the Court must assess the risk of future domestic violence between the parties in the absence of any order.

38. [38]
    And that means:

There must be a factual finding or inferences drawn of the nature of, and prospect that domestic violence may occur in the future.  This will depend upon the particular circumstances of the case.  Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders and changes of circumstances.

The Court does not need to be satisfied that future domestic violence is likely, however, there must be more than a mere possibility or speculation of the prospect of domestic violence.

Secondly, the Court must assess the need to protect the aggrieved from that domestic violence in the absence of the order.  Relevant considerations may include the evidence for the parties’ future personal and familial relationships, their places or residence and work, and the size of the community in which they reside and opportunities for direct and indirect contact and future communication, for example, in relation to children.  And thirdly, the Court must then consider whether, when imposing a protection order, it is necessary or desirable to protect the aggrieved from domestic violence.

39. [39]
    In the present case, after the incident in July 2016 and the undetermined allegation in August 2016, the second respondent remained employed with the appellant until early September 2016. The appellant gave evidence that there may be occasions where, in view of the real estate industry, he may be in the same venue as the second respondent in relation to functions and training. The Magistrate found that there was “some likelihood” of the second respondent and appellant coming together, and that on that basis alone an order was necessary and desirable.

40. [40]
    In my view, even though it is not a matter that I need to determine, there was an error by the Magistrate because he did not turn to his mind to the requirements of s 37(1)(c) of the Act, and it is difficult to see how on the evidence before him there was any basis, apart from speculation, that the protection order was either necessary or desirable.

41. [41]
    I will hear the parties in relation to the form of the orders, but the orders that I am proposing are (1) the appeal is allowed, (2) the order of 3 July 2017 is set aside, and (3) the matter is remitted to the Southport Magistrates Court for hearing. I will also hear the parties about costs.

Orders

42. [42]
    I make the following orders:

1. The appeal is allowed;  

2. The order of 3 July 2017 is set aside;

3. The matter is remitted to the Southport Magistrates Court for hearing; and 

4. In relation to costs:

1. (i)
   Any written submissions as to costs on behalf of the appellant to be filed and served by 30 March 2018; and

2. (ii)
   Any written submissions as to costs for on behalf of the first respondent to be filed and served by 30 April 2018.