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SRV v Commissioner of the Queensland Police Service[2020] QDC 208

SRV v Commissioner of the Queensland Police Service[2020] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:

SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208

PARTIES:

SRV

(appellant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(first respondent)

AND

DTL

(second respondent)

FILE NO/S:

BD4678/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

1 September 2020

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

4 August 2020

JUDGE:

Sheridan DCJ

ORDER:

  1. The appeal against the grant of the protection order on 2 December 2019, for the benefit of the second respondent, be dismissed.
  2. The appeal against the refusal to grant a protection order for the benefit of the appellant, be allowed.
  3. A protection order be made, naming the appellant as the aggrieved and the second respondent as the respondent, in the following terms:
  1. (1)
    The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. (2)
    The respondent is prohibited:
    1. From remaining at;
    2. Entering or attempting to enter; or
    3. Approaching to within 100m

of the aggrieved’s usual place of residence or the premises where the aggrieved lives, works or frequents.

  1. (3)
    The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved.
  2. (4)
    The respondent is prohibited from contacting or asking someone else to contact the aggrieved.
  3. (5)
    The respondent is prohibited from following or approaching to within 100m of the aggrieved when the aggrieved is at any place.
  4. (6)
    The respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved.
  1. The protection order naming the appellant as the aggrieved will cease on 1 December 2024.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – where pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) the trial Magistrate made a domestic violence protection order against the appellant for the benefit of the second respondent and refused to make a domestic violence protection order against the second respondent for the benefit of the appellant – where  the appellant appeals against the decision to grant a protection order in favour of second respondent and to refuse to grant a protection order for the benefit of the appellant – where appellant sought to file and adduce further documentary evidence at appeal – whether leave should be granted for appellant to file and adduce further documentary evidence – whether magistrate was in error – whether protection order in favour of second respondent should be set aside – whether protection order in favour of appellant should be granted

Domestic and Family Violence Protection Act 2012 (Qld), s 4, s 8, s 21, s 23, s 32, s 37, s 41C, s 44, s 45, s 52, s 100, s 112, s 145, s 151, s 164, s 168, s 169

Allesch v Maunz (2000) 203 CLR 172, cited

Bode v Commissioner of Police [2018] QCA 186, cited

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited

Robinson Helicopter Inc v McDermott [2016] HCA 22, cited.

COUNSEL:

Self-representation by the appellant

M C O'Brien for the first respondent

J P Coburn for the second respondent

SOLICITORS:

Queensland Police Service Legal Unit for the first respondent

A W Bale & Son for the second respondent

Introduction

  1. [1]
    The appellant appeals against the decision of a magistrate made on 2 December 2019.
  2. [2]
    By the decision, pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) the court made a domestic violence protection order against the appellant for the benefit of the second respondent and refused to make a domestic violence protection order against the second respondent for the benefit of the appellant.
  3. [3]
    The appellant represented himself.  The first and second respondents were each legally represented on the appeal. 

Events Prior to the Hearing

  1. [4]
    The appellant and the second respondent were in an “intimate relationship” for a period of three months between October 2018 and January 2019.  Following an incident on 21 January 2019, the appellant at the request of the second respondent drove the second respondent to the Royal Brisbane Emergency Hospital as she was complaining of a wrist injury.  On being triaged upon entry to emergency, the appellant said she had been subjected to domestic violence and requested the police be called.
  2. [5]
    On hearing the second respondent’s accounts, on 22 January 2019 the police determined that the second respondent was in need of protection and Constable Alison Suen issued the appellant a Police Protection Notice.
  3. [6]
    On 23 January 2019, a temporary protection order was made in the Magistrates Court against the appellant in respect of the second respondent.
  4. [7]
    On 29 January 2019, the appellant pleaded guilty to two charges of contravening the Police Protection Notice in relation to his subsequent behaviour on 22 January 2019 (the day of the issue of the notice) and on 28 January 2019. The first charge comprised the appellant visiting the residence of a friend, where the second respondent was temporarily residing, in order to collect his house keys which were located at that address. The second charge comprised an incident where the appellant went to the second respondent’s temporary residence and was there arrested by police. The appellant was fined $200 for the two breaches and no conviction was recorded.
  5. [8]
    On 17 June 2019, at a mention of the application brought by police before Acting Magistrate Tynan, the appellant made a number of serious allegations against the second respondent, including that the second respondent had conspired to have him murdered. The appellant was advised that he could bring an application for a protection order and he did so.  The magistrate made temporary protection orders in each application.  At the conclusion of the hearing that day, the legal representative for the first respondent foreshadowed an application which would prevent the appellant being permitted to personally cross examine the second respondent at the hearing.

The Hearing before the Magistrate

  1. [9]
    On the first day of the hearing of the applications, on 19 August 2019, there was legal representation for the police commissioner in relation to the application for the benefit of the second respondent.  The appellant continued to be self-represented in both applications.  There was no appearance by the second respondent, being the respondent to the cross application brought by the appellant.  The second respondent did not file any material in response to the appellant’s material in the cross application. 
  2. [10]
    At the hearing of the appeal, it was not suggested that the second respondent was not served or aware of either the cross application or the material filed in support of it, and the inference from the information supplied to the magistrate by the legal representative for the police commissioner is that the second respondent was served with, was aware of and intended to respond to, the material filed by the appellant.
  3. [11]
    The second respondent, being the aggrieved pursuant to the application brought by the police, was automatically a protected witness.[1]  Pursuant to s 151(2) of the Act, a court may make an order that a respondent to an application, if not legally represented, not cross examine a protected witness if satisfied that the cross examination by the respondent would cause emotional distress to the protected witness.  At the hearing on 19 August 2019, an order was made by Magistrate Bradford-Morgan that the appellant may not cross examine the second respondent.  The magistrate said that matter would not be revisited and that would be the rules of engagement when the hearing resumed on 2 December 2019.
  4. [12]
    At the resumed hearing on 2 December 2019, the police tendered an affidavit of the second respondent sworn 12 April 2019 together with the Police Protection Notice.  The appellant tendered two affidavits of himself, one filed 17 July 2019 and the other filed 31 August 2019.  The appellant tendered various screenshots of Facebook messages, copies of which the appellant claims were left on the dog house at his parents’ property, where he was staying. The screenshots of Facebook messages were marked as exhibits 6, 7, 8 and 9 in the Magistrates Court proceedings. The Facebook messages, being exhibits 6, were of conversations between a work colleague of the appellant and a third party, and exhibits 7 and 8 were of conversations between the second respondent and the same third party.  Exhibit 9 contained screenshots taken from the second respondent’s Facebook profile which showed there had been a change in the second respondent’s profile name and photo.
  5. [13]
    The second respondent gave some short oral evidence by phone; being questioned solely by the magistrate.
  6. [14]
    The magistrate granted the protection order in relation to the second respondent’s application, but dismissed the appellant’s cross application.

Decision of Magistrate

  1. [15]
    At the hearing, whilst recognising the existence of both the original police application and the subsequent application by the appellant, the magistrate on a number of occasions said to the appellant that the legislation required the court to make an assessment about who is the person most in need of protection.  Towards the end of the first day of hearing on 19 August 2019, the magistrate said:

“I want you to …take away the information I’ve given you today about what the court looks at in deciding whether an order is necessary and importantly given the information that you now know that the court has to decide who is the person most in need of protection.”

  1. [16]
    During the course of submissions, the magistrate stated that there were a number of factors in the legislation that the court was required to consider.  The magistrate said the legislation defines persons who have “markers of vulnerability” and stated they include “physical characteristics, including gender and physical prowess.”  The magistrate also referred to age, respective capacities including employment and support structures.  The magistrate referred to the relevance of convictions for breach of domestic violence orders. Not all of the matters identified by the magistrate are in fact referred to in the legislation, nor does the legislation refer to the relevance of convictions for breaches of domestic violence orders.
  2. [17]
    In giving her ex tempore reasons for decision, the magistrate stated: “In considering a cross application, the legislation requires the court, under section 4 of the Act to make a determination…the person who is most in need of protection should be identified.”
  3. [18]
    After commenting on the evidence, the magistrate concluded:

“In the absence of a forensic inquiry, this hearing is conducted on the basis of the balance of probabilities standard, and to discharge the court’s obligation to determine who is the person most in need of protection.  Given the testimony of [the second respondent] that she is not the source of the posts, which make these threats of physical violence and threats to set up [the appellant], I have had regard to the physical injuries observed by Constable Suen, which is consistent with the report to the hospital staff and to police.

In weighing the competing allegations, I am of the view that the aggrieved has relocated to Goondiwindi with her children, and that is corroborative of her tangible distress and fear in relation to ongoing contact with [the appellant].  I note that [the appellant] did not deny sending a text about unleashing the devil to the aggrieved, which was viewed by police, which was the basis of their determination that an application should identify [the second respondent] as the aggrieved person.  I am dismissing the application to vary the temporary protection order made by [the appellant], on the grounds that I find that [the second respondent] is the person most in need of a protection order.

I accept [the appellant] has a basis for concern, having viewed exhibits 6 to 9.  I am not satisfied that [the second respondent] is responsible for the threats contained in those exhibits.  For these reasons, I am of the view that [the second respondent] is the person most in need of a protection order.  And I am satisfied that there have been acts of domestic violence, which have been conceded by [the appellant].  I do not accept his version of events, that he grabbed the aggrieved’[s] wrists in the car to stop her throwing herself from the vehicle.  There is no allegation of suicidal ideation made in relation to the aggrieved.”

Mode of appeal

  1. [19]
    An appeal against a decision made under the Act is brought pursuant to s 164 of the Act.  Section 164 permits an appeal to be brought by a person aggrieved by any of the following decisions of a court:

  “(a)     a decision to make a domestic violence order;

  1. (b)
    a decision to vary, or refuse to vary, a domestic violence order;
  1. (c)
    a decision to refuse to make a protection order;
  1. (d)
    if the person sought a temporary protection order in a proceeding under this Act – a decision to refuse to make the order.”
  1. [20]
    In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.  However, under s 168(2) of the Act the appellate court may order that the appeal be heard afresh, in whole or in part.
  2. [21]
    By an interlocutory application, the appellant sought to adduce additional evidence on the hearing of the appeal and to cross examine the second respondent.
  3. [22]
    The appellant made attempts to obtain a lawyer for the purposes of the appeal, as he had done at the hearing in the Magistrates Court.  Those attempts were equally unsuccessful.
  4. [23]
    There are obviously good reasons for the prohibition against an unrepresented respondent cross examining an aggrieved, but it meant in this case that at the hearing before the magistrate, the second respondent was not questioned in any meaningful way.  On the hearing of the appeal, the court was similarly constrained.  In this case, both the appellant and the court may have benefitted from the appellant being legally represented.  The appeal had to proceed without the second respondent being cross examined.

Additional Evidence

  1. [24]
    At the hearing of the appeal, the appellant sought to file and adduce further documentary evidence.
  2. [25]
    The appellant had originally sought to tender some of these documents at the hearing before the magistrate but that was resisted and the appellant did not in the end press their admission.  This would appear to have been because he was overwhelmed by the nature of the proceedings.
  3. [26]
    The documents sought to be admitted by the appellant at the hearing of the appeal were attached to a further affidavit of the appellant, as required pursuant to the order of the court made at the hearing of an interlocutory application. The affidavit of the appellant was filed and served on the respondents on 17 July 2020.
  4. [27]
    The second respondent was separately legally represented on the appeal on the cross application.  Submissions were filed on her behalf.  The second respondent did not seek to file any affidavit in response to the material filed by the appellant.
  5. [28]
    Amongst the documents annexed to the affidavit and which the appellant sought to have admitted on the appeal were various screenshots of Facebook conversations. The appellant had sought to tender this material at the hearing before the magistrate.  The respondents maintained their objection at the hearing of the appeal to the tendering of the material.
  6. [29]
    The basis of the objection by the respondents to the tendering of the screenshots was the absence of proof of their authenticity.  The appellant maintained the screenshots had been taken by him and indicated to the court that the Facebook messages could be retrieved on his phone, which he had with him in court.
  7. [30]
    Ultimately, in relation to the screenshots of Facebook conversations between the appellant and the second respondent, the respondents did not press their objection or require the appellant to give oral evidence to prove the authenticity of the conversations. 
  8. [31]
    The position as regards Facebook messages between the appellant and third parties was different. Assuming the screenshots of those conversations could be authenticated, at their highest they could only be out-of-court statements by persons who did not give evidence, nor were called by any party to give evidence.  In any event, screenshots of those conversations were only being sought to be tendered on the issue of credit.  The circumstances, in my view, did not justify the admission of this additional material at the hearing of the appeal.  I did not permit the tender of those documents.
  9. [32]
    The appellant also sought to tender the various statements given by the second respondent to the police.  The appellant sought to rely on the inconsistencies in the statements to make submissions going to the credit of the second respondent, particularly given that he could not cross examine the second respondent.  The respondents consented to the tender of the various statements and they were admitted into evidence.
  10. [33]
    In addition, the appellant sought to tender screenshots of Facebook conversations between the second respondent and a third party who had made a complaint to police in relation to the appellant.  The appellant obtained a copy of these messages from the police but only after the hearing before the magistrate.  Those documents were provided to the appellant by police following the bringing of the charge against him for fraud as a result of the complaint.  The charge was subsequently discontinued.  Given their source, there is no reason to doubt the authenticity of the documents.  I allowed the tender.
  11. [34]
    The appeal was, otherwise, conducted as a rehearing and was decided on the evidence and the proceedings before the Magistrates Court below.

Duties and Powers on Appeal

  1. [35]
    In conducting an appeal by way of re-hearing, the court is bound to conduct a real review of the evidence at first instance and of the magistrate’s reasons for decision to determine whether the magistrate erred in fact or law.[2]
  2. [36]
    In order to succeed on an appeal, the appellant must demonstrate some legal, factual or discretionary error of the trial magistrate.[3]
  3. [37]
    Section 169 of the Act sets out the powers of the appellate court as follows:

“(1) In deciding an appeal, the appellate court may–

  1. (a)
    confirm the decision appealed against; or
  2. (b)
    vary the decision appealed against; or
  3. (c)
    set aside the decision and substitute another decision; or
  4. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.
  1. (2)
    The decision of the appellate court upon an appeal shall be final and conclusive.”

Domestic and Family Violence Protection Act

  1. [38]
    The Act allows a court to make a domestic violence order against a respondent for the benefit of a person known as an aggrieved.[4]  An aggrieved includes a person for whose benefit a domestic violence order, or a police protection notice, is in force or may be made under the Act.[5]
  2. [39]
    A domestic violence order includes both a protection order and a temporary protection order.[6]
  3. [40]
    Pursuant to s 32 of the Act, the persons who may make an application for a protection order includes an aggrieved and a police officer who has exercised powers pursuant to s 100 of the Act.  If a police officer issues a police protection notice under that section, the issue of such notice is taken to be an application for a protection order.[7]
  4. [41]
    Where the court has before it an application for a protection order, a court may grant a temporary protection order if it is necessary to adjourn the hearing of the application.[8]  In making a temporary order, the court must be satisfied that a relevant relationship exists and the respondent has committed domestic violence against the aggrieved.[9]
  5. [42]
    Section 37 provides that a court may make a protection order against a person if the court is satisfied of three matters, namely that:

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

  1. (a)
    the respondent has committed domestic violence against the aggrieved; and
  2. (b)
    the protection order is necessary or desirable to protect the aggrieved from domestic violence.” (emphasis added).
  1. [43]
    “Relevant relationship” includes an intimate personal relationship.
  2. [44]
    “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:

“(a) is physically or sexually abusive; or

  1. (a)
    is emotionally or psychologically abusive; or
  2. (b)
    is economically abusive; or
  3. (c)
    is threatening; or
  4. (d)
    is coercive; or
  5. (e)
    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.”[10]
  1. [45]
    Without limiting the definition, “domestic violence” is defined to include threatening a person with the death or injury of the person, or threatening to cause the death or injury to an animal so as to control, dominate or coerce the person and extends to counselling or procuring someone else to engage in behaviour that, if engaged in by the person, would be domestic violence.[11]
  2. [46]
    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. 
  3. [47]
    Included in the principles mentioned is the statement in s 4(2)(e) that:

“in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified.”

  1. [48]
    A court may hear and decide an application for a protection order, in the absence of the respondent, if satisfied that the respondent has been served with a copy of the application.[12]
  2. [49]
    In a proceeding under the Act, a court is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[13]

Issue

  1. [50]
    The first issue that arises is whether the magistrate was correct in approaching the making of the decision on the basis that the court had to determine the person who is most in need of protection and whether it followed that a protection order could only be made in favour of that person and that an order could not also be made against that person.
  2. [51]
    When that issue was raised with the parties, those representing the respondents conceded the approach of the magistrate was in error.  Those concessions were properly made.
  3. [52]
    The principle in s 4 requires the court to identify the person most in need of a protection order.  The Act does not require an order to be made in favour of that person, nor does it exclude an order being made against that person.
  4. [53]
    The section which enables an order to be made requires that the court be satisfied of three things, namely the existence of a relevant relationship, an act of domestic violence by the respondent against the aggrieved and the necessity or desirability to protect the aggrieved from domestic violence.[14]
  5. [54]
    Although the Act requires applications and cross applications to be heard together, unless the court considers it necessary to hear applications separately for the safety, protection or well-being of the person named as the aggrieved in the original application,[15] each application is required to be considered separately and on its own merits.
  6. [55]
    If both applications satisfy the requirements of s 37 then plainly orders should be made under both applications, even if the effect is to protect both parties to the relationship.  There is no reason as a matter of principle and practicality why the legislature may not have intended that result.  Indeed, the Act specifically envisages that there will be applications and cross applications.[16]
  7. [56]
    In the present case, the magistrate dismissed the cross application on the ground that the second respondent was most in need of a protection order.  In doing so, the magistrate misdirected herself.  The magistrate was required to, but failed to, consider each of the matters referred to in s 37 as they applied to the cross application by the appellant; and not decide the two applications on the basis of the principle referred to in s 4(2)(e).
  8. [57]
    That in itself would be sufficient to uphold the appeal.  The Act, however, gives the appellate court power to vary the decision or set it aside and substitute another decision, and not merely to set the decision aside and return the matter back to the court that made the decision.  In this case, the appellant relies upon other aspects of the decisions in his appeal. Those matters were fully argued and in my view the proper approach is to deal with those matters, and if possible, make a decision rather than remit both applications back to the Magistrates Court.

Original application 

  1. [58]
    The application for a protection order in favour of the second respondent was based upon events involving the appellant and the second respondent in a motor vehicle on the on-ramp of the motorway leading to the Brisbane Airport on 21 January 2019.
  2. [59]
    In her affidavit, the second respondent says that, on the road to the airport, an argument broke out between the appellant and the second respondent. The second respondent says she pulled over on the on-ramp and told the appellant to get out of her vehicle multiple times. The appellant refused to get out and the argument escalated into a screaming match.
  3. [60]
    The second respondent says the appellant grabbed her wrists. When she attempted to get free, she says the appellant head-butted her above her left eyebrow at least three times, causing her to have a headache and two black eyes.
  4. [61]
    The second respondent says that the appellant told her that she was “going to die tonight” and made some indecipherable comments that sounded like “voodoo chants” to her.  She says the appellant accused her of cheating on him.  At one point, the second respondent says that the appellant tried to bite a chunk out of her left hand. The second respondent says she feared for her life.
  5. [62]
    The second respondent says that after approximately two hours, the appellant released the second respondent.  He then agreed to drive her to the hospital, as her hands were too sore and swollen to drive. The second respondent said that she couldn’t move her hands and she thought they were broken. The second respondent said that to this day, she still has teeth marks in the back of her hand.
  6. [63]
    The appellant gave a different account of the altercation to that of the second respondent.  He says that the second respondent had become unstable and aggressive when she pulled over on the on-ramp and attempted to get out of the car. The appellant said he grabbed her left wrist to restrain her from exiting the vehicle into the path of an oncoming truck.  He says he grabbed her left wrist, being the one closest to him. 
  7. [64]
    In his oral evidence, the appellant said that as the second respondent went to hit him with her right arm, he then grabbed her right wrist as well as her left, trying to talk her into calming down. Whilst she was restrained by the wrists, the appellant says that the second respondent head-butted him a number of times.
  8. [65]
    The appellant said he released her once she had calmed down.  The second respondent insisted the appellant drive her to the hospital as she thought her wrists were broken, which he did, stopping at a 7-Eleven on the way, as he was asked to do.
  9. [66]
    There is some agreement between the appellant and the second respondent in relation to the events leading up to the altercation in the car.  The appellant says that he and his work colleague were together at the airport waiting for the second respondent to come to the airport to hire a car in her name for his use.  The appellant said that he could not hire a car in his name as he had recently lost his licence and his colleague could not hire the car as his licence had expired.
  10. [67]
    He says they became impatient, as they had been waiting five hours for the second respondent and he says they then concocted a story that the appellant had been taken into police custody and his colleague was left alone waiting in the airport carpark.  The colleague had rung the second respondent and told her this story. 
  11. [68]
    The second respondent says she was happy to hear that the appellant had been taken into custody but that she had gone to the Hendra police station believing that is where they both were and had embarrassed herself.
  12. [69]
    Once at the airport, the evidence of both is that they went in search of an ATM so that the appellant could put money into her bank account to cover the cost of the car hire.  It was during the course of returning to the airport from an ATM that the dispute took place on the on-ramp.
  13. [70]
    No medical evidence was called with respect to the injuries suffered by the second respondent.  In the police protection notice and in the evidence given by Constable Suen, the only injury observed by Constable Suen was slight swelling to the left wrist.  In cross examination, when the Constable was asked whether the injury observed was more consistent with the appellant’s version of trying to stop the second respondent exiting the car, the Constable said: “I can’t comment on that, just that I saw a bit of swelling on her wrist.”  The Constable accepted that she did not see any teeth marks on the second respondent’s hand.  She accepted she did not see any bruising or swelling to the eye.
  14. [71]
    The second respondent attached to her affidavit photographs of what she alleged to be her injuries. 
  15. [72]
    The appellant said that the second respondent was a makeup artist and maintained that it was clear that certain of the images were a product of the use of makeup.
  16. [73]
    It is impossible to determine the truth or otherwise of the images depicted in the photographs but the fact that the police officer did not notice any injuries of the nature alleged is significant and the explanation offered by the appellant in relation to the photographs is plausible.
  17. [74]
    In the protection notice, Constable Suen observed that the aggrieved appeared to be confused and was not completely lucid.  It stated:

“Taking a version from the aggrieved was difficult as she was unable to provide a sequential version of events and keep her train of thought.  The aggrieved was repeatedly distracted and off-topic.  The aggrieved appeared to be under the influence of drugs, and stated that she believes it was due to being drugged by rohypnol or GHB, however was unable to provide any further details.”

  1. [75]
    The notice refers to the appellant telling the Constable that she suffered from bipolar but was medicated.
  2. [76]
    The notice states that the second respondent made allegations of rape by a different male but said that she believes “it is somehow linked to the respondent”.  The notice says that the second respondent did not provide any information linking the appellant to the allegations and did not wish to make a formal complaint.
  3. [77]
    In cross examination, the Constable was asked whether the second respondent was tested for the presence of any drugs.  The Constable said she did not believe so.
  4. [78]
    The notice refers to the text messages viewed that had been sent by the appellant to the second respondent stating, “I’m coming over because I think now it is time to show u the devil in which I warned you and begged you not to provoke”.  In cross examination, the appellant in fact asked whether the Constable saw the context leading up to and after that message, to which she responded, “I just saw the message.”
  5. [79]
    The police formed the view that the second respondent was most in need of protection and issued a Police Protection Notice naming the second respondent as the aggrieved.  The Notice also named her children; who are not the children of the appellant.  Under the Act, separate notices could not have been issued naming each of the parties as the aggrieved and respondent respectively.[17]
  6. [80]
    Despite the observations made by Constable Suen in the notice and her acceptance in cross examination that she did not observe any injuries on the second respondent, other than slight swelling of the left wrist, the magistrate found that the physical injuries observed by the Constable were consistent with reports to the hospital and police by the second respondent.  This was despite observing that there were alarming differences between the photographs annexed to the second respondent’s affidavit and the injuries observed by Constable Suen.
  7. [81]
    The oral evidence given by the second respondent was short.  It was given by telephone.  The only questions asked of her were by the magistrate.  It would not justify a favourable finding of credibility.
  8. [82]
    The unchallenged evidence of Constable Suen would justify the opposite conclusion. The magistrate’s finding in relation to the altercation in the car goes against the clear evidence as to the observations made by Constable Suen as to the injuries she observed.  The statements made by the second respondent as to the injuries inflicted on her that night simply cannot be accepted at face value.
  9. [83]
    The magistrate did not accept the appellant’s version as to the altercation in the car and found that there was an act of domestic violence.   In her reasons, the magistrate stated that the answers provided by the appellant in response to cross examination demonstrated that he was not a witness of credit.  The magistrate did not explain why that was so, and, in any event, a finding against the credibility of the appellant would not entitle any court to make a finding in favour the second respondent.
  10. [84]
    However, the text message sent by the appellant to the second respondent that night, admittedly even if sent when the appellant was feeling completely betrayed knowing that the second respondent was in the hospital and making allegations of domestic violence against him, is very concerning.  The reference to “show you the devil” is threatening and would naturally invoke feelings of being unsafe and threatened. 
  11. [85]
    This circumstance is reinforced when considered against the background of what, on the admissions of both persons, was a relationship of short duration that was tumultuous and fuelled by arguments.  Both accept there was an argument on the morning of the car incident that led to the police being called and, on the second respondent’s own admission, her spitting in the face of the appellant.  She says the appellant spat back and, whilst he does not accept that he spat at her, he does admit to spitting.
  12. [86]
    In these circumstances, the text message would be sufficient to justify the conclusion that there was an event of domestic violence.
  13. [87]
    Finally, it is clear from the statements made in their affidavits that there are real feelings of animosity towards each other. The appellant describes the second respondent as a “covert malignant narcissist”.
  14. [88]
    In her affidavit, the second respondent says that “I needed to get rid of him as I knew he was too much.  The only way I thought I could get through to him was if I got involved with someone else who he didn’t like.”  The second respondent says that since the car incident “there have been ongoing issues which have landed me in hiding and my children sent away.”  She says that she is concerned that he will come and find her.
  15. [89]
    Even accepting that the second respondent is not a reliable witness and prone to exaggeration, I am satisfied that the circumstances justify the conclusion that a protection order was necessary.
  16. [90]
    The appeal against the grant of that order against the appellant is dismissed.

Cross application

  1. [91]
    The application for a protection order in favour of the appellant was based upon allegations of incidents and threats of violence towards the appellant of which the second respondent was either a party to or had conspired with others to have committed upon him.
  2. [92]
    In support of his application, the appellant relied on conversations on Facebook Messenger between the second respondent and a third party (who shall be referred to as ‘A’).  Screenshots of the Facebook conversations were tendered in the Magistrates Court proceedings.  The appellant says that the copies of the screenshots were left anonymously on the dog house at his parents’ property, where he was staying.  He says he was sent a Facebook message telling him to unblock ‘A’ as a friend on Facebook as ‘A’ had something to show him.  He says when he did that, he was tagged in several public Facebook posts that contained screenshots of Facebook messages. These posts contained the messages which had been copied and left on the dog house.
  3. [93]
    Copies of these messages were provided to the second respondent.  In the brief examination of the second respondent conducted by the magistrate, the second respondent appeared to suggest that the appellant operated this social media account and that she was on her way to a police station to file evidence to support her argument.  There is nothing to suggest she did so, nor did she present that evidence at the hearing before the magistrate or on the appeal.
  4. [94]
    The content of some of the Facebook messages are very disturbing.  On 14 June 2019 there was a purported conversation between the second respondent and ‘A’.  The two discuss whether the violence that they alleged they each had recently experienced could be attributed to the appellant.  There is then the following messages exchanged: 

“[Second Respondent]: We just gotta keep trying to put him in jail

[Second Respondent]: He’s not safe there

[A]: How thou[gh] I’ve told everyone he’s a dog and Ryan told people he was in a stolen car and that kinda backfired on him no one seems to do anything

[Second Respondent]: I know right!!!

[A]: We need to set him up with something

[Second Respondent]: 162 breaches

[Second Respondent]: He’s still walking the street

[Second Respondent]: I got him bashed

[A]: How?

[Second Respondent]: Put in the boot and taken out bush

[A]: If you can guide me in what to do I’ll make sure we get him back

[A]: And this time make sure he isn’t ever able to walk around like he is now

[A]: I hear something like that happened to him

[A]: He pissed his pants and begged

[Second Respondent]: Yeah it wasn’t enough.”

  1. [95]
    At the Magistrates Court hearing, the appellant said that the incident described in the message:

“…actually did happen. I didn’t get put in the boot, but – but her friend bashed me, put a hot key underneath my top lip when I was knocked out on the ground with my tooth through my lip – face. And then directed me to get in the boot of a vehicle. It was only lucky that my old best mate rocked up and he verified that I’m not the type of person to drug and rape women.”

  1. [96]
    The appellant told the magistrate that the second respondent had said that he had been involved in the drugging and raping of her, which she said had occurred on the night before the incident in the car.  He did not identify to the magistrate when or where that accusation had been made.
  2. [97]
    The police protection notice records that the aggrieved had told the police that she believed the rape was “somehow linked to the respondent”.  The notice states that the aggrieved did not provide any information linking the respondent to the allegations and that the aggrieved did not wish to make any complaint. 
  3. [98]
    In the screenshots of Facebook conversations between the second respondent and ‘A’ and also the screenshots of Facebook conversations between the second respondent and another third party, who was a customer of the kitchen business in which both the appellant and the second respondent were involved,[18] the second respondent refers to having been drugged and raped because of people he was involved with.  In one of the screenshots, the second respondent states, “Yes I was drugged and raped because of people [the appellant] was involved with” and in the other, the second respondent states “I was drugged and raped because of [the appellant]”.
  4. [99]
    In the course of being questioned by the magistrate, the second respondent denied that she had ever suggested that the appellant had been involved in that offending.  The magistrate accepted that denial and said that was the end of that matter.  The magistrate made no reference in giving judgment to the various occasions on which the second respondent had made statements suggesting some level of involvement by the appellant in her drugging and/or raping.
  5. [100]
    In the Magistrates Court proceedings, the second respondent denied having anything to do with the death of the appellant’s dog and questioned the veracity of the Facebook messages.  Her evidence was accepted by the magistrate.
  6. [101]
    However, in a conversation between the second respondent and the third party ‘A’, which was part of exhibit 7 in the Magistrates Court proceedings, ‘A’ sends the second respondent a screenshot of an Instagram post by the appellant mourning his dog, and ‘A’ asks the second respondent, “Did you get someone to kill his dog hahaha that’s gold if you did.”  The second respondent responds “Ummmmmmmmm” followed by a ‘shushing’ emoji.  The two then agree that the appellant’s new puppy is “too cute” to kill but that they “could steal him though”.
  7. [102]
    As part of that chain of Facebook messages, ‘A’ asks the second respondent if she is “any good at altering documents” and then the following exchange occurs:

“[A]: Could you make it look like he is a kid toucher or raper we can go on the dark web and download a heap of messed up stuff that way we don’t have to kill him he’ll be killed in jail for something he didn’t do hahah and it will never come back on us

[A]: I can sneak the devices back into his place and we can call the police and give them a anonymous tip off he’ll get raided and they will have all the proof right there to send him straight to jail I’ve got some mates in gorrie now

[A]: Make sure you delete this convo

[Second Respondent]: He’s not safe in jail because of people I know”.

  1. [103]
    Exhibit 6 in the Magistrates Court also contains a Facebook conversation on 14 June 2019 between two third parties: ‘A’ and a different third party, who will be referred to as ‘B’.  In these messages, one of the third parties informed the other of the plan with “em” to get back at “k” (where the appellant says it can be inferred that “em” is an abbreviation for the second respondent and “k” is a reference to him):

“[A]: Hey [B] has em contacted you about what we’re planning to do to k to get him back for everything he’s done to all of us

[B]: Bro u got wheels

[A]: I’m going to scope k s house out now

[A]: We are going to set him up while he’s at court next with breaking into his room and grabbing a couple of his devices or even set up a laptop under his name and put heaps of his things on it but have it loaded with child molestation porn and rape her friend will can give us what we need and when he comes home we’re going to give a tip off to the cops and get him raided and caught red handed for being a rapist and child molest[e]r”.

  1. [104]
    This conversation between ‘A’ and ‘B’ occurred just hours after the conversation between ‘A’ and the second respondent about downloading “stuff from the dark web”.[19]  Later in the same conversation there is the following exchange:

“[A]: You do know that the whole plan is to get him killed don’t you

[A]: Delete these messages too as you get them

[B]: Ok and yeah bro

[A]: You could live with that on your conscience

[B]: Yep done

[A]: And most of all if something happens we must make a pact not to give anyone up and deny right to the very end”.

  1. [105]
    In a Facebook message from the second respondent to the appellant sent on 26 January 2019, which was exhibit 11 in the appeal proceedings, the second respondent sent the appellant the following message:

“Maaatteeee u are so hilarious I can’t stop crying with laughter!!

U have done a fabulous job in ur role! Better then I ever imagined actually!

U see, how do u know that I wasn’t sent to u by someone u have tried to extort before!

It’s going to be so funny when u go up in “FLAMES”.”

  1. [106]
    All of these messages suggest, in one form or another, the existence of a threat against the appellant and other behaviours consistent with the threats in a way which affects the appellant and causes him to fear for his own safety or wellbeing.
  2. [107]
    There is no reason to doubt that the message alleged to have been sent by the second respondent to the appellant that she would like to see the appellant go up in “flames” was in fact sent by her.  The authenticity of the evidence was not in the end challenged, and the message sits comfortably with the fraud allegations.
  3. [108]
    That message would satisfy the requirements of s 8(1) and s 37(b) of the Act.  It was sent very shortly after the temporary protection order was made and clearly sent in circumstances where there is a high level of animosity and antagonism between the second respondent and the appellant.  In my view, the magistrate on this evidence should have found that it was necessary or desirable to protect the appellant from domestic violence and should have made a protection order.
  4. [109]
    The final issue is whether there is sufficient evidence that the second respondent had counselled or procured the appellant being “bashed” or his dog being killed, or was part of a conspiracy to his being implicated in possession of child pornography.  The oral response of the second respondent to the screenshots, upon them being raised by the magistrate, was not to deny being involved in any of the conversations or the event involving the appellant being bashed or the plan to set him up with child pornography, but to allege, without proof, that the appellant had made up these social media posts.  That may not be hard, but the conversations in the screenshots are not simple and the task of composing them would have been burdensome.  It is not clear that the appellant has the ability to perform such an elaborate falsehood.  
  5. [110]
    Clearly, as the magistrate found, the appellant was and is concerned for his own safety.  That is not consistent with him fabricating the social media posts.
  6. [111]
    Importantly, the second respondent did not swear any affidavit in response, either in this court or the Magistrates Court as to these matters.  The allegation that the second respondent is involved in these matters is a serious one, and, although any finding is to be made on the balance of probabilities, the principles referred to in Briginshaw v Briginshaw[20] must therefore be kept firmly in mind.
  7. [112]
    On the other hand, whilst silence is not necessarily proof, it can be where a court would expect a person to respond to a serious allegation, and evidence is to be weighed according to the capacity of the party to adduce it.
  8. [113]
    In the end, there was evidence of a threat to the appellant directly from the second respondent and reason to consider that a protection order was accordingly necessary and desirable to protect the appellant from it or physical harm.
  9. [114]
    The appeal against the refusal to make a protection order is upheld.  I will therefore make a protection order naming the appellant as the aggrieved and the second respondent as the respondent.
  10. [115]
    That order should be in the same terms as the protection order made in favour of the second respondent, namely:
  1. The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. The respondent is prohibited:
    1. From remaining at;
    2. Entering or attempting to enter; or
    3. Approaching to within 100m

of the aggrieved’s usual place of residence or the premises where the aggrieved lives, works or frequents.

  1. The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved.
  2. The respondent is prohibited from contacting or asking someone else to contact the aggrieved.
  3. The respondent is prohibited from following or approaching to within 100m of the aggrieved when the aggrieved is at any place.
  4. The respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved.
  1. [116]
    It would be appropriate that such order cease on the same date as the protection order made in favour of the second respondent.   Accordingly, the order will cease on 1 December 2024.
  2. [117]
    The appellant’s application for a protection order, sought to have the appellant’s parents and a friend included in the order as named persons.  Section 52 of the Act provides:

“(1)  The court may name, in a domestic violence order, a relative or associate of the aggrieved if the court is satisfied that naming the relative or associate in the order is necessary or desirable to protect the relative or associate from associated domestic violence.

(2)  In this section—

relative, of an aggrieved, does not include a child mentioned in section 53.”

  1. [118]
    In the appellant’s application for a protection order, the appellant referenced the “[second respondent’s] threats directed at [the appellant’s parents]” as the grounds as to why it is necessary or desirable to protect the appellant’s parents. However, no evidence was presented before this Court in relation to alleged threats made to the appellant’s parents. 
  2. [119]
    The appellant did, however, present screenshots of Facebook messages, which suggest that the second respondent was providing third parties with the appellant’s home address, being the home address of his parents and evidence of the attendance of third parties at that address.
  3. [120]
    By the terms of condition 2 of the order, the respondent is prohibited from entering or attempting to enter or approaching to within 100m of the appellant’s usual place of residence or premises where the appellant lives, works or frequents.  While the appellant is residing at, or even visiting, his parents’ home, the order will give a level of protection to his parents.
  4. [121]
    In the absence of evidence of threats made to the parents, I am not satisfied that the naming of the appellant’s parents is necessary or desirable.
  5. [122]
    The appellant also included in the application the name of a friend, who the appellant sought to be a named person on the protection order, but has not provided any further details of that person.  Nor did the appellant provide any specific grounds as to why it is necessary or desirable to protect that person. No formal evidence was tendered at the hearing regarding this friend.  In the circumstances, I am not satisfied that it is necessary or desirable for the friend to be included in the order as a named person.

Orders

  1. [123]
    Accordingly, the orders made are:
  1. The appeal against the grant of the protection order on 2 December 2019, for the benefit of the second respondent, be dismissed.
  2. The appeal against the refusal to grant a protection order for the benefit of the appellant, be allowed.
  3. A protection order be made, naming the appellant as the aggrieved and the second respondent as the respondent, in the following terms:
  1. (1)
    The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. (2)
    The respondent is prohibited:
    1. From remaining at;
    2. Entering or attempting to enter; or
    3. Approaching to within 100m

of the aggrieved’s usual place of residence or the premises where the aggrieved lives, works or frequents.

  1. (3)
    The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved.
  2. (4)
    The respondent is prohibited from contacting or asking someone else to contact the aggrieved.
  3. (5)
    The respondent is prohibited from following or approaching to within 100m of the aggrieved when the aggrieved is at any place.
  4. (6)
    The respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved.
  1. The protection order naming the appellant as the aggrieved will cease on 1 December 2024.

Footnotes

[1]s 150(1) of the Act.

[2]Bode v Commissioner of Police [2018] QCA 186, [42] citing Robinson Helicopter Inc v McDermott [2016] HCA 22, [43].

[3]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14]; Allesch v Maunz (2000) 203 CLR 172, 180.

[4]s 23(1) of the Act.

[5]s 21 of the Act.

[6]s 23(2) of the Act.

[7]s 112(1) of the Act.

[8]s 44(1)(a) of the Act.

[9]s 45 of the Act.

[10]s 8(1) of the Act.

[11]s 8(2), (3) of the Act.

[12]s 39(2)(a) of the Act.

[13]s 145 of the Act.

[14]s 37 of the Act.

[15]s 41C(2)(a) of the Act.

[16]Division 1A of Part 3 of the Act.

[17]s 103 of the Act.

 [18]Exhibit 8 in the appeal.

[19]As detailed in paragraph 102 above, and part of exhibit 7 in the Magistrates Court proceedings.

[20](1938) 60 CLR 336.

Close

Editorial Notes

  • Published Case Name:

    SRV v Commissioner of the Queensland Police Service and DTL

  • Shortened Case Name:

    SRV v Commissioner of the Queensland Police Service

  • MNC:

    [2020] QDC 208

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    01 Sep 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Bode v Commissioner of Police [2018] QCA 186
2 citations
Jump To
Cite 1 - [2018] QCA 186
Cite 2 - [2018] QCA 186
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
2 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
2 citations
Jump To
Cite 1 - [2016] HCA 22
Cite 2 - [2016] HCA 22

Cases Citing

Case NameFull CitationFrequency
DU v TG [2022] QDC 2471 citation
Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 704 citations
Lewis v Queensland [2023] QSC 2421 citation
LSA v Queensland [2024] QSC 102 2 citations
LSA v Queensland [2025] QCA 611 citation
MAS v FEM [2025] QMC 11 citation
MJE v Strofield (Magistrate) [2021] QSC 1262 citations
1

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