ARTE v Nugent[2020] QDC 268

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 3 February 2020, a Magistrate made a Protection order against the appellant under s 37 of the Domestic and Family Violence Protection Act 2012 (DVFPA). The order was made after a contested hearing, and includes an ouster condition in relation to the aggrieved’s usual place of residence.
2. [2]
   This is an appeal under s 164 of the DVFPA against the Magistrate’s decision of 3 February 2020 to grant the Protection order (the order).
3. [3]
   The appellant, who is the named respondent to the order, contends the decision should be set aside and the matter remitted to the Brisbane Magistrate’s Court for determination by a different Magistrate. A number of grounds of appeal are relied upon. In general terms, it is asserted the Magistrate erred in law, and her conduct during the trial occasioned a miscarriage of justice.
4. [4]
   The first respondent, who was the applicant for the order at first instance, opposes the appeal, but concedes: (1) the Magistrate’s reasons for judgment disclose an error of the kind contemplated by House v The King (1936) 55 CLR 499; and (2) it is appropriate for the order to be varied such that the ouster condition is deleted. 
5. [5]
   The second respondent, who is the aggrieved and the person for whom the order is to benefit, is supportive of the appeal and the relief sought by the appellant. 
6. [6]
   For the reasons that follow, it is ordered that:

   1. The appeal be allowed.
   2. The Protection order dated 3 February 2020 be set aside.
   3. The first respondent’s application for a Protection order under s 37 of the Domestic and Family Violence Protection Act 2012 for the benefit of the second respondent be remitted to the Brisbane Magistrate’s Court for a new trial, with a direction that it be heard by a Magistrate other than the Magistrate at first instance.

Background

7. [7]
   The appellant and second respondent have been married for thirty two years. Prior to 11 October 2019, there was no suggestion their relationship involved any form of domestic violence.

8. [8]
   On 11 October 2019 at 9:19pm, the second respondent made an emergency call to Police. She told the operator ‘My husband has gone to the gun cabinet to do a murder suicide…He’s got a gun to kill us’. The second respondent told the operator that she had locked herself in a bathroom and the appellant was at his gun cabinet. The operator heard the second respondent yell ‘Get away, get away’. The appellant was forcing entry into the bathroom. Once he obtained entry, the appellant took possession of the telephone and told the operator he was leaving. The second respondent yelled ‘go away, get out, just fucking get out’. Police responded to the call. Several Police officers were deployed to respond to the Code 1 incident.
9. [9]
   Whilst preparing to respond to the emergency call, Police intercepted the appellant in his vehicle not far from the home where he and the second respondent reside. The first respondent, who spoke to the appellant at roadside, confirmed he was cooperative, coherent and rational. It was also confirmed that the appellant expressed concern for his wife. He was understandably emotional.
10. [10]
    The Police and Queensland Ambulance Service attended the residence where the second respondent was located. It was observed by Police that she was not injured and had calmed down considerably upon their arrival. The second respondent told Police she had engaged in a discussion with the appellant about the loss of their business, and current financial position. That discussion was said to lead the appellant to ask the second respondent if he should commit murder-suicide. The second respondent told Police that, after making the murder-suicide comment, the appellant went to the garage where his firearms are stored. The second respondent said she then heard the sound of a rifle being actioned multiple times. She went to the garage and saw the appellant at the gun cabinet with his back to her. The second respondent did not see any firearm, but given the appellant’s comment she became extremely fearful and retreated to a bathroom to take refuge.
11. [11]
    As a consequence of the incident described above, the first respondent issued a Police Protection Notice on 11 October 2019 under s 112 of the DVFPA. The notice named the second respondent as the aggrieved, and the appellant as the respondent. A condition of the notice required the appellant’s weapons licence and firearms to be surrendered to Police. That occurred, and remained the position when the issues in dispute were argued before this Court, and the Magistrate at first instance.
12. [12]
    The first respondent also elected to make an application to the Magistrate’s Court for a Protection order under s 37 of the DVFPA to benefit the second respondent.  The application was made on 11 October 2019. Section 8 of the application form provides an opportunity for an applicant to indicate whether the Court will be asked ‘to consider any other conditions for inclusion in the protection order’. Such a condition includes an ouster condition. The application filed on behalf of the first respondent stated that no such order was sought. If a different position had been adopted, the application requires the condition/s sought to be expressly stated, along with the reasons for seeking such condition/s.
13. [13]
    The first respondent’s application for a Protection order was adjourned by order of 15 October 2019. On the same day, a Temporary Protection Order was made under s 44 of the DVFPA. The order named the second respondent as the aggrieved, and the appellant as the respondent. It was subject to a condition that the appellant be of good behaviour towards the aggrieved and not commit domestic violence.
14. [14]
    On 5 November 2019, directions were made for the conduct of the first respondent’s application for a Protection Order. Relevantly, it was directed, inter alia, that:

    1. (a)
       the evidence-in-chief of all witnesses shall, other than the original sworn application, and unless otherwise ordered, be by way of affidavit;
    2. (b)
       no affidavit shall be admitted in to evidence unless the deponent is made available for cross-examination;
    3. (c)
       all requests for subpoena material must be filed before 28 January 2020; and (d) the application was listed for hearing on 3 February 2020.
15. [15]
    A request for a subpoena was made by the first respondent on 22 November 2019. A subpoena was issued on 2 December 2019, requiring the second respondent to attend the Magistrate’s Court at Brisbane on 3 February 2020 ‘to give evidence’.
16. [16]
    It was common ground that, to obtain the Protection order, the first respondent was required to satisfy the Court of the three requirements in s 37(1) of the DVFPA. The subsection states:

“37 When court may make protection order

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

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

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

…

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

17. [17]
    Subsection (1)(a) was not in issue between the parties at first instance.^[1]
18. [18]
    It was the appellant’s case that the Court could not be satisfied about subsections (1)(b) and (c). It was contended on his behalf that: (1) his conduct did not meet the definition of domestic violence for the purposes of the DVFPA; and (2) in the alternative, a Protection order was not necessary or desirable to protect the second respondent from domestic violence. 
19. [19]
    In relation to item (1) above, the appellant’s case involved an assertion there was no threat of domestic violence. Rather, it was contended the second respondent was intoxicated, stressed and emotional. This was said to result in her over reacting to a bad joke made by the appellant. 

20. [20]
    In relation to item (2) above, it was emphasised that the appellant and second respondent lived in the same residence under the Temporary protection notice and had not been involved in any acts of domestic violence. It was also emphasised that, prior to 11 October 2019, there had never been any other act of domestic violence in a relationship that had endured for three decades. In these circumstances, it was said the risk of future domestic violence was remote and not sufficient to establish a need for a Protection order for the benefit of the second respondent.
21. [21]
    The proceeding came on for hearing on 3 February 2020. As the transcript reveals, the Magistrate made the order and delivered ex tempore reasons. The reasons reveal, inter alia, that the Magistrate was satisfied each limb of s 37(1) of the DVFPA was satisfied. She was also satisfied it was appropriate to impose an ouster condition. Central to the Magistrate’s reasoning were three findings: (1) that the appellant was engaging in victim shaming; (2) that the appellant had not taken any steps to address the underlying reasons for the incident on 11 October 2019; and (3) the relationship between the appellant and the second respondent involved a power imbalance such that the latter would subjugate her wellbeing to that of the former. 

The nature of the appeal

22. [22]
    The nature of this appeal is a rehearing.^[2] 
23. [23]
    The powers to be exercised on appeal under s 169 of the DVFPA are provided for the correction of error.^[3] As the decision the subject of the appeal involves the exercise of discretion, error of the kind identified in the following passage of House v The King (1936) 55 CLR 499 at 505 must be identified:^[4]

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

The alleged errors

24. [24]
    The notice of appeal filed on behalf of the appellant identifies five grounds of appeal.
25. [25]
    The oral submissions made on behalf of each party had the effect of reducing the issues in the appeal to the three questions, namely:

1. Did the Magistrate err in holding that, for the purpose of s 37(1) of the DVFPA, it was necessary or desirable to protect the second respondent from domestic violence? (Error 1)

2. Did the Magistrate err in imposing an ouster condition under s 63 of the DVFPA? (Error 2)

3. Whether there were irregularities in the conduct of the trial that occasioned a substantial miscarriage of justice?^[5] (Miscarriage of justice)

Error 1

26. [26]
    It was common ground at first instance that a Protection order could be made where the Magistrate was satisfied about the matters specified in s 37(1) of the DVFPA. This provision is set out in paragraph [16] above. It required the Magistrate to be satisfied that, inter alia, a Protection order was necessary or desirable to protect the aggrieved from domestic violence.
27. [27]
    As was observed by Horneman-Wren SC DCJ in ACP v McAulliffe [2017] QDC 294 at [68], the phrase ‘necessary or desirable to protect the aggrieved’ in s 37(1)(c) invokes a very wide and general power that should be construed liberally.  Satisfaction of the provision involves subjectivity and value judgment.  That value judgment must take into account mandatory considerations, which include those matters mandated in s 37(2) of the DVFPA. In the circumstances of this case, s 37(2) required the Magistrate to have regard to:

1. (a)
   the principles stated in s 4 of the DVFPA, including subsection (2)(b), which states:

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

1. (b)
   the appellant’s compliance with the Temporary protection order.

28. [28]
    The reasons for judgment disclose the Magistrate was satisfied s 37(1)(c) of the DVFPA was engaged in the circumstances. The reasons state as follows:^[6]

“In viewing the tape, I reject the assertion by the respondent that she was adversely affected by alcohol. I reject the contention by the respondent in his affidavit, marked exhibit 9, that she was slurring her words, had bloodshot eyes, and smelt of alcohol, and accept the officers’ version of events, which is supported by my viewing of the interviews with the aggrieved. She is clearly shaken and fearful after a very distressing incident, and I am rejecting the submission by the Respondent that the Aggrieved had called triple O when the Respondent had on the Respondent’s version of events made a joke about murder suicide before going to his gun cabinet. For these reasons I am satisfied that it is necessary to make an order for the protection of the Aggrieved. 

29. [29]
    The Magistrate was satisfied s 37(1)(c) was engaged because it was ‘necessary’ to make an order. She was so satisfied because: (1) the second respondent was not adversely affected by alcohol; and (2) the incident of 11 October 2019 was a very distressing one where the second respondent was left shaken and fearful. The reasons do not however disclose if, and how, the considerations mandated by s 37(2) were taken into account. That the reasons do not disclose if, and how, mandatory considerations were taken into account is an error of law. It means the reasons are inadequate, or alternatively, that the need to protect the second respondent from domestic violence was not examined by the Magistrate in the manner prescribed by the DVFPA.  This error warrants setting aside the order.
30. [30]
    I also pause to note that the passage of the reasons extracted above in relation to s 37(1)(c) of the DVFPA was followed by this observation:^[7]

“I am concerned that the Aggrieved puts her welfare second to her concern for her husband or 32 years, and that coupled with the Respondent’s eagerness to blame this incident on his wife creates a situation where there is a significant power imbalance in the relationship which raises concerns about whether the Aggrieved would seek assistance from police if there was a further incident. 

I note with concern that [the appellant] has not availed himself of a consultation with either a general practitioner or a psychologist. I note that the Aggrieved was candid about there being arguments due to significant stress through financial issues over the last few years. And note that when asked about rehabilitation to address the requirements in the case law, which forms part of the court’s consideration and exercise of discretion, the response was confined to an assertion that the parties were working on their marriage.” 

31. [31]
    This observation, in my view, informs the findings made by the Magistrate about s 37(1)(c) of the DVFPA. It makes plain that she took into account ‘a concern’, namely there was a ‘significant power imbalance’ in the relationship between the appellant and the second respondent. This was a factor referred to in an exchange between the Magistrate and the solicitor for the appellant as follows:

BENCH: Are you familiar with the Duluth model and the Power and Control Wheel where aggrieved persons in an abusive relationship frequently prioritise an abuser’s welfare over their own, and that is why there is an understanding by specialist courts of a need to intervene in circumstances where it is demonstrated that an aggrieved person, who is a victim of domestic violence, subjugates their wellbeing, their peace of mind, their protection to the interests of their partner?

…

BENCH: And that is one of the indicia of a relationship that is marred by domestic violence. (emphasis added)

32. [32]
    Here, it is common ground there was no evidence to establish the relationship between the appellant and second respondent involved coercive behaviour, or involved a power imbalance. There was no evidence that the Duluth model or Power and control wheel had application in the circumstances of this case.  Despite the absence of evidence in this regard, the Magistrate found a power imbalance to exist in the relationship. This, in turn, informed her assessment of s 37(1)(c) of the DVFPA. 

33. [33]
    To act in this way was an error of law. It is a material error that infects a central issue in dispute, namely whether s 37(1)(c) of the DVFPA was satisfied. The error warrants setting aside the order of 3 February 2020.
34. [34]
    It is submitted on behalf of the first respondent that despite the identified errors in the reasons for judgment, there is, in any event, sufficient evidence to find the order was necessary or desirable in the circumstances. I do not agree. An examination of the evidence against s 37(1)(c) of the DVFPA may well establish that an order is necessary or desirable to protect the second respondent. That however misses the point. The evidence going to this very issue is incomplete given the matters discussed in paragraphs [65] to [85] of these reasons. The evidence does not include an affidavit sworn by the second respondent. That affidavit, if admitted into evidence, would be a mandatory consideration for s 37(1)(c) of the DVFPA. There was no application to lead fresh evidence in this appeal. In such circumstances, I decline to determine whether s 37(1)(c) of the DVFPA is satisfied. It is a matter that will be the subject of consideration in a new trial.

Error 2

35. [35]
    Section 57(1)(a) of the DVFPA required the Magistrate to consider whether, in making the order, any other condition was necessary or desirable to protect the aggrieved from domestic violence. One such condition may include an ouster condition imposed under s 63.
36. [36]
    Section 64 of the DVFPA identifies the matters that must be taken into account in deciding to impose an ouster condition. The matters that must be taken into account include the requirements of s 57. The mandatory considerations include:

1. (a)
   whether the aggrieved can continue to live safely in the residence if the ouster condition is not made;^[8] and

2. (b)
   any views or wishes expressed by the aggrieved about imposing an ouster condition on the respondent.^[9]

37. [37]
    The first respondent’s application for the order stated that an ouster condition was not sought. As I have already said, if it had been, the application was required to state the condition sought, and the reasons for doing so.  This position changed at the invitation of the Magistrate. During the course of oral submissions, the Magistrate asked the solicitor appearing for the first respondent whether an ouster condition was sought. The solicitor responded in the affirmative. She said:^[10]

“Yes, your Honour. Prosecutions would be supportive of an ouster condition in the circumstances.” 

38. [38]
    No submissions were made by the solicitor as to why the first respondent was supportive of the condition. Nor did the solicitor inform the Magistrate as to the contents of section 8 of the application for the Protection order. No leave was sought, or granted, for the second respondent to depart from the position stated in the application.
39. [39]
    It is tolerably clear that the risk of future domestic violence to, and the safety of, the second respondent was an important consideration for the exercise of the Magistrate’s discretion under s 63 of the DVFPA. This is confirmed by s 57(3) of the DVFPA, which states:

“The principle of paramount importance to the court must be the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”

40. [40]
    Having regard to the reasons, I do not accept the Magistrate correctly assessed this risk and the need for an ouster condition. This is because the reasoning, in my view, is inescapably, and wrongly, infected by: (1) the Magistrate’s earlier finding, in the absence of evidence, that there was a significant power imbalance in the relationship between the second respondent and appellant; and (2) reason that the second respondent was not afforded an opportunity to express her ‘wishes’ by way of sworn evidence, which is discussed in paragraphs [65] to [85] below. 
41. [41]
    The combination of these matters, in my view, necessarily colours the exercise of the discretion to impose an ouster condition. The discretion miscarried. It did so because the Magistrate had regard to an irrelevant consideration (item 1), and could not give genuine consideration to a mandatory consideration (item 2), being the views of the second respondent.  Both errors represent a proper basis for interfering with the exercise of a discretion in the manner contemplated by House v The King. This was conceded by the first respondent in relation to item (1) above.
42. [42]
    It was submitted on behalf of the first respondent that the ouster condition is not necessary to protect the second respondent. I was, as a consequence, invited to vary the order. Given the order will be set aside, and the application remitted to the Magistrate’s Court for a new trial, it is unnecessary for me to express a view about such a variation. The need for an ouster condition will be given fresh consideration in a new trial.

Miscarriage of justice

43. [43]
    Mr Kissick submitted the conduct of the proceeding at first instance was unfair to the appellant and second respondent. He was supported in this submission by Mr Seaholme, who appeared on behalf of the second respondent. 
44. [44]
    I have carefully reviewed the transcript of the proceeding, and agree there are five irregularities in the conduct of the trial at first instance. Taken in combination, the irregularities are such as to lead me to conclude the trial was unfair to the appellant and second respondent. The irregularities are such as to establish that a substantial miscarriage of justice has been occasioned. 
45. [45]
    The five irregularities in the trial are as follows.
46. [46]
    First, the transcript reveals the Magistrate spoke about, and directly to, the appellant in terms that were pejorative, and unnecessary, having regard to the evidence and proper context. During the course of oral submissions:

1. (a)
   the Magistrate accused the appellant of displaying ‘bad manners’ because he interrupted the oral submissions of the solicitor for the second respondent^[11] -  the transcript reveals the interruption was unintentional as the appellant was responding to a question put to him by his solicitor; and

2. (b)
   the Magistrate described the appellant as the second respondent’s ‘gun-toting husband’^[12] and as engaging in ‘classic victim shaming’^[13] – this was in circumstances where the evidence did not establish the appellant was ‘guntoting’ and the appellant’s position was positively supported by the same person he was said to be shaming as a victim.

47. [47]
    Second, the Magistrate permitted unfair cross-examination of the appellant. The relevant passage of cross-examination was as follows:^[14]

“MS VASILIKOS: [appellant], when the constable was speaking to you at the roadside you made no mention in relation to your wife’s level of intoxication. Why is that?---At the roadside, the first time?

In the audio that was played to the court, yes?---All the audio?

All of it. There was no mention of intoxication?---In the audio I – I did bring it up that she had been drinking.

[appellant], I put it to you that, in fact, you didn’t and at no mention – when Constable Brunett tried to confirm for you the events of that evening, you made absolutely no mention of her level of intoxication, that she smelt like alcohol, had bloodshot eyes and was slurring her words?---I did and happy for you to replay the - - -No, I won’t waste the court’s time in relation to that….

[appellant], also in the audio from Constable Brunett, in the first audio you state at .45 seconds into the recording that the aggrieved made the first statement about murder suicide and not you. Do you recall that?---Not right now. I’d have to get you to replay it back for me, please.

Okay. Well, I put to you that at .45 into the recording that is what you said and then in the second recording that I play at two minutes and 28 you said that, in fact, you said it first?---As I said, I’d have to …get you to replay it back so I could answer that.

BENCH: [appellant], you’re required to answer to the best of your knowledge. You’ve been in court throughout the day. You’ve heard the recordings so you need to make a response to the question put to you?---Your Honour, I’d have to listen to it so I could respond to that for you.

MS VASILIKOS: [appellant], given that you have made contradictory statements in relation to who made the statement first, can you please now confirm for the court who made the statement first?---I would have to listen to the recording so I could reply that to you.

Your Honour, I have to express to the court – I have concerns that this may be the answer I’m going to get through my cross-examination which, your Honour, is going to waste the court’s time. I’m unsure how your Honour wishes to proceed.

BENCH: I think having heard the responses, you’ve discharged your obligation to put it to the witness and he’s made his response.

MS VASILIKOS: Yes.

BENCH: His responses will be a matter for submissions.

MS VASILIKOS: Thank you, your Honour. Nothing further of the witness, your Honour.”

48. [48]
    The passage of cross-examination set out above was relevant to an important issue in the trial. The appellant, as I said in paragraph [18], contested whether the incident on 11 October 2019 was domestic violence as defined in the DVFPA. It was his evidence that the incident was explained by the second respondent’s level of intoxication. He said she had over reacted. The purpose of the above passage of cross-examination was to establish: (1) that the appellant had made no mention of his wife’s intoxication to Police on the night of the incident; and (2) that the appellant told Police that the aggrieved mentioned murder-suicide before he did that night. 
49. [49]
    The cross-examiner put to the appellant that he had made no mention of his wife’s intoxication to Police on the night of the incident.  The appellant was responsive to that line of questioning. He rejected the proposition, and invited the cross-examiner to replay the interviews recorded by Police in support. This response, and the invitation to replay the recordings, was then described by the cross-examiner as something that would ‘waste’ the Court’s time. This was not a question. It was a statement made by the cross-examiner about the appellant’s evidence.
50. [50]
    The cross-examiner also put to the appellant that he had made a particular statement to Police in two separate recordings. At one point, the unspecified content of each recorded statement was put in a single question to the appellant. This was not corrected by the Magistrate. This was in circumstances where the purpose of the cross-examination was to found a submission that the appellant had made prior inconsistent statements to Police. 
51. [51]
    Unfortunately, the transcript also reveals:

1. (a)
   the cross-examiner did not put to the appellant the precise statements he was  alleged to have made to Police, and were relied upon to found an imputation that he had made prior inconsistent statements;

2. (b)
   the cross-examiner disregarded the fair request made by the appellant for the recordings to be replayed before he responded to a suggestion that he had made particular statements to Police;

3. (c)
   the Magistrate ignored the appellant’s request for the recordings to be replayed, and directed him to answer questions to the best of his ability – she later criticised him for the answers given (during oral submissions) stating in unqualified terms that he ‘wouldn’t answer any questions’;^[15]

4. (d)
   the cross-examiner, in the presence of the appellant, openly criticised his answers to questions in cross-examination in a manner that I regard as inappropriate – she invited the Court to ‘advise’ how to proceed in the face of his answers that involved a request for the relevant part of the recording relied upon by the cross-examiner to be replayed; 

5. (e)
   the Magistrate did not require the cross-examiner to proceed any further with the cross-examination of the appellant on the basis his evidence could be the subject of ‘submissions’ – this statement carried with it, in my view, an implicit criticism that was later vocalised by the Magistrate in oral submissions;

6. (f)
   the solicitor for the second respondent relied upon the above crossexamination, and the appellant’s responses, to submit;^[16]

“…Also, given [the appellant’s] lack of cooperation in the witness stand also lends itself to display that there is no true insight into his actions, what and how they constitute domestic violence and the true impact they have had on the aggrieved…” (emphasis added)

52. [52]
    Each of the matters taken collectively in paragraphs [49] to [51] suggest the crossexamination of the appellant in relation to a material issue was unfair. In particular, he was denied the opportunity to understand precisely what the cross-examiner was putting to him as being an inconsistent statement. The Magistrate did not remedy this. Rather, she made a statement that suggests she considered the appellant was obfuscating, or, at the very least, conducting himself in a manner that was detrimental to his credibility as a witness. That, in my view, was inappropriate. It was unfair given the appellant did no more than request that he know precisely what he was being asked to concede. To describe a request of this kind as being demonstrative of an uncooperative witness, or a witness that would not answer questions, was wrong.
53. [53]
    Third, the transcript reveals that the Magistrate was unnecessarily aggressive towards the appellant’s legal representative. The aggression was misplaced and, in my view, adversely impacted upon the proper presentation of the appellant’s case.

54. [54]
    As a starting point, the transcript reveals the Magistrate accused the appellant’s solicitor of professional discourtesy. By way of example, the transcript contains an interchange where the solicitor was about to respond to an objection made by the solicitor for the first respondent. Before she could respond, the Magistrate interjected and stated that she did not agree with an earlier and unrelated proposition the solicitor had put to the witness, which had not been objected to. 
55. [55]
    The transcript reveals the solicitor attempted to respond to the Magistrate’s interjection. The Magistrate would not let her respond and, in any event, criticised her as follows:^[17]

“BENCH: I don’t appreciate you interjecting when I’m speaking.

MS SHORTER: Apologies, your Honour.

BENCH: It is discourteous and lacks the professional standard that is expected of qualified solicitors.

MS SHORTER: Thank you, your Honour.

BENCH: I require an apology.

MS SHORTER: I apologise, your Honour.”

56. [56]
    The transcript does not bear out that the appellant’s solicitor was discourteous. Nor does it bear out that she acted in a manner falling short of the standards expected of a solicitor. Rather, the transcript reveals the Magistrate over reacted and, regrettably, belittled the solicitor. No apology was, in my view, called for in the circumstances.  
57. [57]
    Unfortunately, the above was not an isolated incident. Later, during oral submissions, the Magistrate said to the appellant’s solicitor:^[18]

“BENCH: Ms Shorter, it really is a most unfortunate habit of yours to interrupt me when I am trying to elucidate issues that I feel you need to respond to as a matter of fairness.

MS SHORTER: I apologise again, your Honour.

BENCH: If you don’t want me to…given you an indication of the concerns I have, then I will cease to do so.

MS SHORTER: I apologise, your Honour.

BENCH: All right. Please continue.” (emphasis added)

58. [58]
    Again, the transcript does not bear out that the appellant’s solicitor had ‘an unfortunate habit’ of interrupting. Rather, the transcript suggests it was the Magistrate that routinely interrupted oral submissions made by the appellant’s solicitor. She did so to make speeches about the strengths and weaknesses of the submission made. 
59. [59]
    The transcript reveals the appellant’s solicitor sought to respond appropriately to remarks made by the Magistrate, and was not discourteous. The transcript does not suggest she acted in a manner that fell short of the standards expected of a solicitor. Again, no apology appeared to be required from the solicitor.
60. [60]
    As an advocate, the solicitor for the appellant was attempting to respond to questions from the Bench. It is not unusual in such an exchange for an advocate to pre-empt the end of a Judge’s or Magistrate’s question. That can happen as part of the ‘cut and thrust’ of oral submissions. That it happens does not mean the advocate is rude. Much of course turns on the facts of each case. Here, the transcript does not bear out this was a case warranting criticism from the Bench. 
61. [61]
    The Magistrate’s criticism of the appellant’s solicitor reached a troubling high point in oral submissions where it was suggested the rule in Browne v Dunn (1893) 6 R 67 had been offended. The transcript contains the following exchange in this context between the Magistrate and the appellant’s solicitor:^[19]

“BENCH: And at no point did you put to the officers who interviewed the aggrieved that she smelled of alcohol, had bloodshot eyes and was slurring her words.

MS SHORTER: I did put – I did ask those questions of the first officer, your Honour.

BENCH: You asked if she was intoxicated.

MS SHORTER: And I asked if she had been breathalysed. And then my friend re-examined with respect to what indicia she was displaying.

BENCH: You put it to Officer Nugent that she smelt of alcohol; did you?

MS SHORTER: No, I didn’t.

BENCH: No. That’s correct.

MS SHORTER: I’m sorry, your Honour. Is there a question or - - -

BENCH: Do you want to persist with this conduct, Ms Shorter?

MS SHORTER: No. I’m trying to assist your Honour.

BENCH: Do you want me to order a transcript, and this can be reviewed by the Legal Services Commission - - -because we are now getting to the point where you’re being deliberately provocative and obtuse.

MS SHORTER: Your Honour, I can assure you that I’m not. I’m simply saying that I did put my client’s case to the officer by saying - - -

BENCH: And I have elucidated one instance where you have not, and you have concurred.

MS SHORTER: Yes. I’m simply saying that that was also addressed in reexamination, your Honour, by my friend, when she asked whether – what things that he would look for if he was determining whether somebody was intoxicated, and she – he said that she wasn’t displaying any of those signs.

BENCH: Ms Shorter, your understanding of the rule in Browne v Dunn seems to be somewhat at odds with the accepted principles. You have the obligation, as a matter of procedural fairness and natural justice…to put your client’s case to the witness.

MS SHORTER: Yes.

BENCH: And that is what I’m directing your attention to.

MS SHORTER: Well, your Honour, I say that I did do that by asking him whether she was intoxicated, and whether he – whether she displayed indicia of being intoxicated, and whether she was breathalysed…” (emphasis added)

62. [62]
    The remarks made by the Magistrate were unwarranted and misconceived. In the first instance, it is clear from the transcript that the appellant’s solicitor was not being provocative or obtuse. She was attempting to respond to questions from the Bench. That was not an easy task because the Magistrate was, in my view, aggressive and proceeding on a misapprehension of the law. 
63. [63]
    The rule in Browne v Dunn requires a cross-examiner to put to an opponent’s witness the nature of the case upon which it is proposed to rely in contradiction to that witnesses’ evidence. This is particularly so where the cross-examiner’s case relies upon inferences to be drawn from other evidence in the proceeding. Like all rules, there are exceptions. The rule does not apply where the witness is on notice that their version is in contest.  Notice can take many forms, including evidence. 
64. [64]
    Here, affidavits were delivered in advance of the hearing. The affidavits were, by order of 5 November 2019, the evidence-in-chief of the deponent. The appellant, in his affidavit, clearly put in issue that the second respondent was intoxicated. He also put in issue how much he observed her to drink on the evening of 11 October 2019. That was sufficient to put the first respondent on notice that there was a contest about how much alcohol the second respondent consumed. That this was an issue was also raised by the matters discussed in paragraphs [68] to [71] below. In these circumstances, the rule in Browne v Dunn did not apply in the context of the interchange between the appellant’s solicitor and the Magistrate. For the Magistrate to belittle the solicitor’s understanding of the principle in Browne v Dunn was wrong. The threat to report the matter to the Legal Services Commission was misconceived. 
65. [65]
    Fourth, the Magistrate materially interfered with the conduct of the second respondent’s case. This is borne out having regard to the following.
66. [66]
    Section 146 of the DVFPA confirms that the second respondent was a party to the proceeding at first instance. As a party, she was entitled to participate in the hearing. The second respondent elected to do so through a lawyer. 

67. [67]
    As a party to the proceeding, the second respondent was entitled to lead evidence, and be heard, in respect to the disputed issues. The central issues to be determined in the proceeding at first instance related to ss 37(1)(b) and (c) of the DVFPA. Those provisions of the Act required the Magistrate to be satisfied that: (1) the respondent had committed domestic violence against the aggrieved; and (2) a Protection order was necessary or desirable to protect the second respondent from domestic violence. 
68. [68]
    The Magistrate was advised the second respondent, as the aggrieved, wished to be heard in the proceeding about these matters, and, in addition, sought leave to read and file an affidavit.^[20] The second respondent’s affidavit had not been finalised, or served, at the time the Court was initially informed of its existence. This led to the following exchange between the solicitor for the second respondent and the Magistrate:^[21]

“BENCH: Ms Mackenzie, practicing in this jurisdiction, you’d be familiar that it’s not usual for the aggrieved to provide material. It’s certainly prejudicial both to prosecution, given that there are five police officers here and two civilian witnesses, for what is, in effect, a late application to adjourn the hearing.

MS MACKENZIE: That’s certainly so. It’s principally that the aggrieved wishes to be heard in terms of the necessity or desirability of the order and she wishes to…provide a version which is somewhat in contrast to some of the material points in the police evidence, largely centring around her intoxication at the time.

BENCH: Well, why has that not been attended to prior to today’s hearing?

MS MACKENZIE: I’m unable to assist in that respect, your Honour. It’s been quite late in the piece that I’ve come into this matter.”

69. [69]
    After this exchange, the hearing was adjourned and resumed some 3.5 hours later. Upon the resumption of the hearing, the solicitor for the first respondent had possession of the affidavit sworn by the second respondent. That affidavit put forward the second respondent’s version of events, which was ‘in contrast to some of the material points in the police evidence’. 
70. [70]
    At the time the second respondent’s affidavit was provided to the other parties, the first respondent had not opened his case, nor called any evidence. As a consequence, it can be said that the first respondent was on notice before the hearing commenced that: (1) the second respondent wished to give evidence in the proceeding;  (2) the second respondent’s evidence was directed to, inter alia, the events on the evening of 11 October 2019; (3) the second respondent’s evidence raised issues with respect to her level of intoxication on the evening of 11 October 2019, which was consistent with an affidavit sworn by the appellant provided in advance of the hearing; and (4) the second respondent did not support the making of a Protection order.

71. [71]
    That the first respondent was on notice about the second respondent’s case was put beyond doubt when he was cross-examined by the appellant’s solicitor. She asked him direct questions about the second respondent’s level of intoxication. The solicitor for the first respondent also re-examined on the same point. There can be no doubt the first respondent was given an opportunity to address the suggestion that the second respondent was affected by alcohol and had over reacted. He stated that he did not observe the second respondent to be affected by alcohol.
72. [72]
    At the completion of the first respondent’s case, the solicitor appearing on his behalf made the following submission:

MS VASILIKOS: Your Honour, there are no further witness for the prosecution case, however, I will say that the aggrieved has given an affidavit in support of the respondent, so prosecutions will be seeking to question the aggrieved in relation to that affidavit.

BENCH: Well, firstly there needs to be leave to file it.

73. [73]
    I pause to note at this juncture that the solicitor for the first respondent was ready to cross-examine the second respondent. There was no suggestion that: (1) the grant of leave to rely upon the second respondent’s affidavit was opposed; (2) the first respondent would be prejudiced if leave to file and read the second respondent’s affidavit was granted; (3) the police officers who had given oral evidence in the case would need to be recalled if leave was granted to file and read the second respondent’s affidavit; or (4) an application would be made on behalf of the first respondent to adjourn the hearing if leave was granted to file and read the second respondent’s affidavit. I also note that the Magistrate was not informed that a subpoena had been sought by the first respondent and had been issued for the second respondent to give evidence at the hearing.
74. [74]
    The solicitor appearing for the second respondent rose immediately after the above interchange to seek leave to file and read the affidavit. The Magistrate did not allow the solicitor to develop the reasons why leave should be granted. Rather, the transcript reveals the Magistrate immediately interjected, and the following exchange occurred:^[22]

BENCH: Paragraph 8 is a problem, because it differs from the evidence given – the account given by your client.

MS MACKENZIE: These are the instructions of my client. The account – perhaps it may be best if that is - - -

BENCH: The concern I have is that given the extensive accounts that occurred at the time, there is a palpable indication of your client’s level of fear and distress when she rang triple O. The concern I have is that I know most people who are in this jurisdiction have never been in court before, and that is extremely confronting. This is not a trial about guilt or innocence. It’s about whether a protective framework is necessary. I don’t want to involve your client lightly given that it is a police application. So it’s not something that your client is doing to her husband. I just want to assure you you are the

aggrieved person identified, but it is understood – I’m happy for you to give evidence that you’re not supportive of a protection order being put in place. I’m reluctant to allow a statement that would lead you to be crossexamined by police. And I think with paragraph 8, if it’s relied upon, then it’s likely to result in cross-examination of an aggrieved, which is not anticipated under the legislation. So it’s a hard sell. Sorry. Please continue.” (emphasis added)

75. [75]
    In response, the solicitor appearing for the second respondent said:^[23]

MS MACKENZIE: I have – I certainly appreciate that, your Honour. I have taken my client through that risk, and after receiving advice, she remains steadfast that she wishes to provide this evidence, and she understands that the likely consequence of that is going to be potential cross-examination from the prosecution, but I have taken her through what that may entail.

76. [76]
    The Magistrate then directed the following to the solicitor appearing for the second respondent:^[24]

BENCH: Have you – okay. Have you also given her advice about the ability to exercise privilege against self-incrimination? Because if she goes into the witness…and gives testimony - - -

MS MACKENZIE: I have taken her through that as well. Thank you, your Honour.

BENCH: All right.” (emphasis added)

77. [77]
    After the above interchange, the Magistrate said:^[25]

BENCH: All right. The other relevant considerations in an exercise of discretion is whether there is procedural fairness and natural justice. Given that the various police officers have concluded their testimony, it raises issues which, if leave was granted, may require recalling several police officers because their evidence and the body worn camera footage are at odds with the contents of the affidavit. All right. In an exercise of discretion I need to be addressed on the likely consequences of having to recall the police officers and, predominantly, the delay in provision of an affidavit. Given that directions were made for the trial, the respondent could have availed himself of an opportunity to adduce an affidavit from his wife given that the terms of the terms of the temporary order are confined to a mandatory only condition. So what is the explanation of delay?

78. [78]
    The following explanation was offered for the delay:^[26]

MS MACKENZIE: The explanation of delay is largely that [the second respondent] has sought some legal assistance. It’s taken some to be in a position to do that in light of the financial constraints and that’s largely what it stems from. I have conferenced [the second respondent] and taken instructions in respect of this and she remains steadfast that there’s been no coercion at all. There’s been absolutely nothing of that nature. Her intention in having this affidavit filed, if your Honour is minded to grant leave, is purely to be heard. She wishes the true state of things and her account to be placed on the record in respect of this matter and that’s certainly aligned with the legislation in this regard. Her views and wishes…– she would like those to be taken into account by your Honour in making a final determination. 

It’s certainly understood that that may require the recalling of police officers specifically surrounding, perhaps, her intoxication at the material time, but in light of her condition and with respect to the recording, she certainly says that she’s had one glass of alcohol since she’s been home, but my instructions in that regard are that she had several glasses of alcohol whilst at dinner. So in total she consumed about approximately one bottle of approximately of alcohol – of wine.” (emphasis added)

79. [79]
    In response to the above the Magistrate said:^[27]

BENCH: It is not anticipated in the legislation that aggrieved persons place themselves in a situation where they could expose themselves to the penalties of perjury - - -

…

BENCH: - - - and I need to be blunt because it’s a protective jurisdiction. …It is a civil order, but there are criminal penalties for giving false testimony.

…

BENCH: I am concerned given the account given by your client to several police officers on the evening, that if leave is granted, it would necessitate recalling several of the officers already excused, but it also exposes your client to…cross-examination in a robust manner given the various versions of events she’s given on the evening.

…

BENCH: I’m happy for your client to give oral testimony in – or submissions through you about her attitude to the application. That is anticipated in the legislation. It is not anticipated in the legislation that on the day of a hearing that has been scheduled for some time an affidavit is filed that has not been provided that has not been provided to prosecution prior to the day of hearing and would necessitate recalling several police officers.” (emphasis added)

80. [80]
    In light of what was said by the Magistrate, the solicitor appearing for the second respondent requested a short adjournment to obtain instructions from her client.^[28] The Court was adjourned for 9 minutes. Upon resumption, the solicitor appearing for the second respondent made the following submission:

“MS MACKENZIE: Thank you for the court’s indulgence. …

MS MACKENZIE: It’s appreciated. I’ve had the opportunity to confer with [the second respondent] and perhaps, as your Honour foreshadowed, if I could give submissions, perhaps, in a closing address - - -

BENCH: Thank you. I appreciate that.

MS MACKENZIE: - - - that would be preferred.

…

BENCH: Do you mind if I return…that …affidavit to your client? Thank you.”

81. [81]
    The hearing then continued with the appellant running his case. He was called to give evidence. The evidence-in-chief, consistent with the order of 5 November 2019, was in affidavit form. The appellant was cross-examined by the solicitor for the first respondent. That cross-examination was brief. It was 8 minutes in total. Upon completion of the appellant’s evidence, attention turned to the second respondent’s case. She did not call any evidence. Her case was limited to oral submissions. The primary submissions made on her behalf were as follows:^[29]

MS MACKENZIE: …My submissions in respect of the views and attitudes of [the second respondent] are somewhat brief and based on my instructions during conference earlier today. Your Honour, section 4, subsection (2) of the Act states that the views and wishes of the aggrieved should be sought before a decision affecting them is made. These submissions seek to address your Honour on those views and wishes. As your Honour has heard during the course of evidence, [the second respondent] is entirely unsupportive of the imposition of a protection order. She maintains that she is not fearful of [the appellant] and does not require the court’s protection. She understands the therapeutic jurisdiction of these proceedings, however, she remains steadfast in her view that during the course of a 32 year marriage she has never been exposed to domestic violence. She has no necessity or desirability for an order being made. Unless…I can be of further assistance in that regard, your Honour.

82. [82]
    The above submission was not evidence. It was a statement from the bar table. The statement could not be tested by the appellant. Nor could it be tested by the first respondent. This begs the following question: what weight, if any, could the Magistrate give to the above submission for the purposes of s 4(2)(b) of the DVFPA, or to determine the disputed issues?  
83. [83]
    In my view, the absence of evidence supporting the above submission meant the second respondent’s position could be afforded little weight in the circumstances. This undermined the cases advanced by the second respondent and appellant. Their respective positions were founded on a joint invitation for the above submission to be, in effect, determinative of the application. That their respective positions were undermined was a direct consequence of the Magistrate’s interference with the second respondent’s case. The interference was not soundly based.                     

84. [84]
    The exchange between the Magistrate and the solicitor for the second respondent, which is extracted from the transcript and set out in paragraphs [74] to [79], conveys that judicial pressure was brought to bear on an advocate to take a particular course – i.e. to not call evidence from the second respondent. The pressure was such that the advocate was left with no real alternative but to adopt the course pressed by the Magistrate. That was unfortunate because the pressure brought to bear was founded on four material misapprehensions, namely:

1. (a)
   it was incorrectly founded on the premise that the legislation does not contemplate an aggrieved will be cross-examined by the first respondent -  there is no such intention on the face of the DVFPA and the first respondent did not suggest otherwise in this court, or below;

2. (b)
   it was founded on an assumption that the version of events given by the second respondent on the evening of 11 October 2019 were truthful, accurate and reliable, and any departure from that version would result in a risk of perjury or self-incrimination – there was no such risk;

3. (c)
   contrary to paragraph [73] above, it was founded on an assumption that the first respondent would likely be prejudiced, or denied natural justice, if leave was granted to file and read the second respondent’s affidavit – there was no suggestion from the first respondent’s solicitor that this was the case; and

4. (d)
   it was founded on an assumption that the second respondent’s case could be fairly put before the court by way of a submission from the bar table and not supported by evidence. 

85. [85]
    It was submitted on behalf of the first respondent that the decision to not lead evidence from the second respondent was a forensic decision made at trial. It is said the second respondent is bound by that decision in this appeal. It is correct to say that a forensic decision was made at first instance to not lead evidence from the second respondent and, generally, a party will be bound by a forensic decision of that nature on appeal. That general position should not, in my view, prevail here because: (1) there was no reasonable alternative to the forensic decision made given the judicial pressure brought to bear upon the solicitor appearing for the second respondent; (2) the judicial pressure brought to bear was based on a number of misapprehensions; and (3) the judicial pressure brought to bear had the effect of precluding the second respondent from calling evidence that was directed to the issues in dispute between the parties. This, in my view, had the consequence of limiting the second respondent’s ability to properly participate in the proceeding. 
86. [86]
    Finally, it is obvious the proceeding at first instance involved a dispute about an alleged incident of domestic violence, and the risk of future domestic violence to the second respondent. It is equally obvious the appellant denied there had been an incident of domestic violence for the purposes of the DVFPA and opposed the making of a Protection order. Despite this, the parties were informed by the Magistrate that the hearing would need to be adjourned for lunch to permit her to attend a ‘Domestic violence stakeholders meeting’.

87. [87]
    This was raised for the first time after the legal representatives had announced their appearance. The Magistrate said to the solicitor for the first respondent:

BENCH: Ms Vasilikos, before we commence, I’ve just seen the deputy chief magistrate in the lift, who reminded me that there is a 1.15 domestic violence stakeholders meeting today, so that has eroded my good intentions to sit through lunch…So we’ll make a start, but I will have to adjourn to attend that meeting. (emphasis added)

88. [88]
    After a short interchange with the Magistrate as to how the case could be run to accommodate the ‘Domestic violence stakeholder’s meeting’, the solicitor appearing for the first respondent called him to give evidence. The first respondent was affirmed at 12:48pm.^[30] A copy of the Police Protection Notice, along with an affidavit, and the audio of the second respondent’s emergency call were tendered through the first respondent prior to the Court adjourning at 1:05pm.^[31] 
89. [89]
    The Court resumed at 2:20pm. Upon resumption, the following interchange occurred between the Magistrate and the solicitor appearing on behalf of the first respondent:

BENCH: … There was no one from prosecution at the meeting. Mind you, I didn’t know the meeting was on.

MS VASILIKOS: Neither did I, your Honour.

BENCH: Apparently it was - - -

MS VASILIKOS: I actually came last week and it was cancelled.

BENCH: It was cancelled. But I didn’t get a message saying it’s on.

MS VASILIKOS: Well, your Honour, if you didn’t get a message, I am far lower on the food chain than you. You can guarantee neither did Prosecutions.

BENCH: But that’s a pity. No. It was a good meeting.

MS VASILIKOS: Yes.

…

BENCH: Back to the task at hand.” (emphasis added)

90. [90]
    The transcript reveals the Magistrate engaged in an irrelevant conversation with the solicitor for the first respondent. The conversation had the clear tenor of familiarity. That may not necessarily have been problematic but for the fact that the interchange related to a Domestic violence stakeholders meeting in circumstances where the disputed issues to be determined between the parties touched upon matters of domestic violence. That this is so would have been obvious to the Magistrate, and all those present in the court room.

91. [91]
    Whilst the point would have been obvious to the Magistrate, she did not disclose in open court the precise remit, or interests, of the stakeholders group. Nor did she disclose the nature of her involvement in the group. This, in my view, was regrettable. 
92. [92]
    I can accept that the exchange between the Magistrate and the solicitor about the stakeholder’s meeting, in isolation, may appear harmless. It should not however be viewed in this way. It is a troubling exchange when coupled with the Magistrate’s: (1) pejorative statements about, and to, the appellant; (2) unnecessary and misconceived aggression towards the appellant’s solicitor; (3) preparedness to permit unfair cross-examination of the appellant; and (4) preparedness to find, in the absence of evidence, that the relationship between the appellant and respondent involved a power imbalance. When viewed in this way, the circumstances are indicative of a reasonable apprehension of bias. 
93. [93]
    A similar observation can be made when all of the above irregularities are considered. Each, taken in isolation, may be capable of an innocent explanation. Each may be the product of the daily pressures facing a busy judicial officer in a busy court.  The difficulty however is that the combination of all of the above irregularities cannot be so readily explained. They took place in a hearing that was no more than 2 hours and 55 minutes, and are indicative of a reasonable apprehension of bias. It is sufficient to say that, in combination, the irregularities establish a substantial miscarriage of justice has been occasioned. The irregularities necessitate a new trial.

Disposition of the appeal

94. [94]
    The order is set aside and the application is remitted to the Magistrate’s Court at Brisbane for a new trial. 
95. [95]
    Given the findings I have made above, the appellant and second respondent are entitled to be concerned as to whether the Magistrate at first instance could apply her mind to the matter unaffected by all that has gone before. That is unfortunate; but, there is a proper basis for directing the new trial be heard by a different Magistrate. The interests of justice require such a direction.