LBU v QPS[2020] QDC 279

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal by the Appellant, LBU, for an extension of time within which to bring an appeal, and for the setting aside of a Temporary Protection Order made by the Brisbane Magistrates Court on 23 January 2019.

2. [2]
   In this appeal, this Court must determine if the appeal should be allowed out of time, and if so, whether the Temporary Protection Order should be set aside.

Appeals

3. [3]
   Section 168 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) provides that the appeal is to be decided on the evidence and proceedings before the court that made the original decision; however, the appellate court can order that the appeal be heard afresh.

4. [4]
   As noted by the Respondent,^[1] to succeed, the Appellant must demonstrate some legal, factual or discretionary error of the trial magistrate.^[2] As submitted by the Respondent, “the question is not whether the appellate court may have itself made a different finding, but is, rather, whether the finding made by the trial judge was reasonably open on the evidence before them”.^[3]

5. [5]
   I note the Respondent’s submission that the Appellant was and is self-represented.^[4] The comments of Her Honour Justice Muir in du Boulay v Worrell & Ors at [68] to [69] are relevant in this regard:^[5]

“[68] The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.

[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.”

6. [6]
   I also note the decision in DMK v CAG where His Honour Judge Morzone QC considered the nature of an appeal under the Act:^[6]

“[13] The appeal is brought pursuant to s 164 of the Act. In accordance with s 168(1), the appeal must be decided on the evidence and proceedings before the Magistrates Court.

[14] The appeal is not a new trial to consider argument and evidence, as if presented for the first time. More broadly, requirements and limitations of such an appeal are set out by the High Court in Fox v Percy (2003) 214 CLR 118 at [23], as follows: “On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.”

[15] Subsection 168(2) reposes discretion in this court to order that the appeal be heard afresh in whole or in part. It seems to me that this discretion may be invoked if the appellant demonstrates some legal, factual or discretionary error of the trial magistrate. For the reasons which I elucidate below, none of these have been demonstrated.

[16] Section 169 of the Act provides the powers of this court in deciding an appeal including: (a) to confirm the decision appealed against; or (b) to vary the decision appealed against; or (c) to set aside the decision and substitute another decision; or (d) to set aside the decision appealed against and remit the matter to the court that made the decision.”

7. [7]
   In the decision of FCA v Commissioner of the Queensland Police Service Her Honour Judge Kingham (as she then was) noted:^[7]

“[13] An appellate court is not entirely unconstrained in its powers. In determining an appeal, a court should not set aside a finding of fact or an inference drawn by a trial judge unless it is clear that the finding or inference is wrong. The question is not whether the appellate court might have itself made a different finding but is, rather, whether the finding made by the trial judge was reasonably open on the evidence before them. Further, an appellate court should only overturn a primary judge‘s exercise of judicial discretion where that exercise was plainly wrong or based on incorrect facts.”

8. [8]
   Who may appeal is set out in section 164 of the Act as follows:^[8]

“164 Who may appeal

A person who is aggrieved by any of the following decisions of a court may appeal against the decision—

1. a decision to make a domestic violence order;
2. a decision to vary, or refuse to vary, a domestic violence order;
3. a decision to refuse to make a protection order;
4. if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.”

9. [9]
   For the purposes of this appeal, a domestic violence order includes a temporary protection order.^[9]

10. [10]
    An appeal is required to be brought within 28 days of the decision appealed against, or such later time as the appellate court allows, pursuant to s 165 of the Act:^[10]

“165 How to start appeal

1. The appeal is started by filing a notice of appeal with the registrar of the appellate court.
2. The appellant must—

1. serve a copy of the notice on—

1. the other persons entitled to appeal against the decision; and
2. the police commissioner; and

2. file a copy of the notice in the court that made the decision being appealed.

3. Despite subsection (2), the registrar may ask the police commissioner to serve a copy of the notice on the persons mentioned in subsection (2) (a)(i).
4. The notice of appeal must be filed within 28 days after—

1. the day on which the decision is made; or
2. if the decision was made in the absence of the appellant, the earlier of the following—

1. the day on which a copy of the decision is served on the appellant;
2. the day on which a police officer tells the appellant about the existence of the decision.

5. The appellate court may at any time extend the period for filing the notice of appeal.
6. The notice of appeal must state fully the grounds of the appeal and the facts relied on.”

11. [11]
    In this case, the time for appeal runs from 28 January 2019, the day the Appellant was served with the Temporary Protection Order, pursuant to s 165(4)(b)(i) of the Act.

12. [12]
    The matters which the court who makes a Temporary Protection Order must be satisfied of are contained in s 45 of the Act, which states:

“45 Matters court must be satisfied of

1. A court may make a temporary protection order against a respondent only if the court is satisfied that—

1. a relevant relationship exists between the aggrieved and the respondent; and
2. the respondent has committed domestic violence against the aggrieved.

2. Subsection (1) does not apply if the court makes a temporary protection order under section 44 (b).”

Notice of Appeal

13. [13]
    The Appellant’s Notice of Appeal states he “seeks leave to appeal against the whole/that part of the decision of Brisbane Magistrates Court dated 23^rd of January 2019 by which it was ordered/decided that a temporary protection order naming [Ms A] as the aggrieved and [LBU] as the respondent.”

14. [14]
    The appeal was lodged on 3 September 2019, some eight months after the Temporary Protection Order was made by the learned Magistrate.

15. [15]
    It should be noted that a final hearing of the matter was conducted in the Brisbane Magistrates Court on 2 December 2019, and a Protection Order was made after a trial, naming the Appellant as Respondent, and dismissing the Appellant’s cross application.

16. [16]
    The Appellant in his Notice of Appeal set out fifteen grounds for his appeal. Most refer to allegations about the behaviour of the Aggrieved, Ms A. The Respondent alleges that Ms A made up allegations against him which she knew to be false. These many allegations are not relevant to his appeal. The only evidence before the learned Magistrate when he made his decision was a Police Protection Notice (PPN) served on the Appellant on 22 January 2019.

17. [17]
    In so far as the grounds are relevant to this application, ground six states “there were not sufficient grounds for the Police Protection Notice #222276 to be placed upon [LBU] given the hardships it would place him in”. Ground seven states, “the Police Protection Notice #222276 had multiple errors and was not signed by a witnessing officer”.

18. [18]
    There is no grounds of appeal, nor any explanation, of the delay in bringing the appeal some eight months after the original Temporary Protection Order was made, save for a reference at the hearing of the appeal about the breach of the PPN and the Temporary Protection Order by the Appellant, which will be discussed later.

19. [19]
    The Appellant was not present when the Temporary Protection Order was made. He sent an email to the court at 1:06am on 23 January 2019 which states in part:

“The reason I am applying to adjourn the proceedings is:

Awaiting material

Was only given notice to appear on 22/1/2019 and 1 day to prepare clearly isn’t suitable.”

20. [20]
    The matter came before the court on 23 January 2019 and the Temporary Protection Order was made in the absence of the Appellant. It is clear that the learned Magistrate had before him the PPN and any submission from the Police Prosecutor who appeared on that day.

The Police Protection Notice

21. [21]
    The circumstances of the alleged domestic violence is set out in the PPN as follows:

“…

The aggrieved and the respondent have been in an intimate person relationship for approximately 3-4 months. 

The aggrieved and the respondent do not reside together.

The aggrieved and the respondent are also business partners together, namely ‘EK Kitchens’.

At approximately 2:25 am on 22/01/19, Police were detailed to attend the Royal Brisbane Hospital to take up with the aggrieved wishing to make an assault complaint.

…the aggrieved appeared to be confused and was not completely lucid. The aggrieved stated that at approximately 9:30-10:00pm on 21/01/19, she attended Brisbane airport as the respondent wished to hire a car under the aggrieved’s name.  Upon arrival at the airport, the respondent entered her vehicle and asked her to find an atm to allow him to deposit money into her account to pay for a car service as well as the hire car.  The aggrieved and the respondent have ended up at an ATM possibly located at Banyo. Once the money was deposited, they continued to drive around possibly in the Hendra area where the aggrieved has pulled over and asked the respondent to get out numerous times.  The respondent has subsequently grabbed her by both of her wrists, allegedly headbutting her in the middle of her forehead and biting her left hand.  The aggrieved stated that the respondent was verbally abusive at this time stating that she had ‘destroyed his life’ and ‘tonight is the night we are both going to die’.  The respondent has further accused the aggrieved of cheating on him. When the respondent has released the aggrieved’s wrists, the aggrieved asked the respondent to drive her to the hospital as she believed they may be broken.”

22. [22]
    Police noted that the Aggrieved made an allegation of rape by another male person, but did not wish to make a formal complaint.

23. [23]
    Police also noted that the Aggrieved was “unable to provide a sequential version of events” and thought she may have been under the influence of drugs. The aggrieved stated she believed she may have been given rohypnol or GHB, but was unable to provide further details.

24. [24]
    The Aggrieved showed police a text message from the respondent, which read, “I’m coming over because I think now it’s time to show u the devil in which I warned you and begged you not to provoke”. The Aggrieved told police she is fearful of the Respondent and that he is verbally abusive and threatens her.

25. [25]
    It is noted that the “[p]olice did not observe any bruising or swelling as a result of the alleged headbutt”, nor were any bite marks observed; however, the police observed “the aggrieved’s left wrist was slightly swollen.”

26. [26]
    The Aggrieved told police she was medicated for a bipolar condition.

27. [27]
    The Respondent was found by police in the hospital car park where he was detained.

28. [28]
    The PPN goes on:

“Police took up with the respondent who stated to Police that he was at the Brisbane airport with a friend named Aaron attempting to hire a car, however was unable to. The respondent stated that he was picked up by the aggrieved at approximately 10pm 21/01/19.  Upon seeing the aggrieved, they were affectionate to each other and the aggrieved apologised to him. The aggrieved then drove the respondent to Boondall where the deposited cash into the aggrieved’s account to pay for a car service as well as the hire car.  The aggrieved was then proceeding back to the Brisbane airport to pick up Aaron, however pulled over on the on-ramp to the highway in the Nudgee area.  The aggrieved has then become unstable and aggressive, opening the door wishing to run outside into traffic.  As a result, the respondent has grabbed the aggrieved by the wrists trying to prevent her from hurting herself and tried to calm her down.  Whilst restrained by the wrists, the aggrieved has attempted to headbutt the respondent a number of times.  Once calm, the respondent released the aggrieved.  At this time, the aggrieved complained of a wrist injury.  As a result, the respondent has driven her to the Royal Brisbane Hospital where they have both approached the triage counter in the Emergency.”

29. [29]
    The PPN makes clear on its face that a domestic relationship existed between the parties, as they had been in a relationship for some three months.

30. [30]
    The PPN set out events as the Aggrieved told them, and also, quite fairly, as the Respondent told them.

31. [31]
    Indeed, the Police officer made the very balanced and proper observation that “the respondent believes that he is the aggrieved in this matter and states the aggrieved is manipulative and suffers from mental illness, possibly bipolar. The respondent states that she is unstable and is unpredictable’” and further, “Although there are very conflicting versions, Police believe that the aggrieved in this matter is in most need of protection, therefore believe it is necessary and desirable for a domestic Violence Protection order to be in place.”

32. [32]
    Section 112 of the Act provides that the PPN is taken to be an application for a protection order:

“112 Police protection notice taken to be application for protection order

1. A police protection notice is taken to be an application for a protection order made by a police officer.
2. This section does not apply if—

1. the police protection notice was issued against the respondent under section 101A when the respondent was released from custody; and
2. a police officer prepared an application for a protection order against the respondent while the respondent was in custody as required under section 118.”

33. [33]
    The Appellant says that the PPN is deficient and therefore invalid. Firstly, the Appellant says that the PPN is incomplete because the issuing officer has failed to circle “section 101” or “section 101A” to signify which of those sections is relied upon for the officer as grounds for issuing the notice.

34. [34]
    Those sections of the Act state as follows:

101 Police officer may issue police protection notice

1. A police officer may issue a notice (a"police protection notice") against a person (the"respondent") if the police officer—

1. reasonably believes the respondent has committed domestic violence; and
2. if the respondent is not present at the same location as the police officer—has made a reasonable attempt to locate and talk to the respondent, including by telephone, to afford the respondent natural justice in relation to the issuing of a police protection notice; and
3. reasonably believes that no domestic violence order or recognised interstate order has been made or police protection notice issued that—

1. names the respondent as a respondent and another person involved in the domestic violence mentioned in paragraph (a) as the aggrieved; or
2. names the respondent as the aggrieved and another person involved in the domestic violence mentioned in paragraph (a) as a respondent; and

4. reasonably believes a police protection notice is necessary or desirable to protect the aggrieved from domestic violence; and
5. reasonably believes the respondent should not be taken into custody under division 3.

2. This section is subject to sections 102 and 103.

101A When police officer must issue police protection notice

1. If a person has been taken into custody under division 3, the releasing police officer must issue a notice (also a"police protection notice") against the person (also the"respondent") if—

1. it is not reasonably practicable, as mentioned in section 118 (2), to bring the respondent before the court for the hearing of an application for a protection order while the respondent is still in lawful custody; and
2. a temporary protection order has not been made under division 4 against the respondent; and
3. section 125 does not apply.

2. This section is subject to sections 102 and 103.

35. [35]
    Clearly, in this case, section 101A of the Act is not applicable as it refers to the respondent being in custody. That was not the case here. Clearly, section 101 has been complied with in this instance, as the defendant was at the hospital and accompanied police to the station and gave a version. This section is not mandatory, such that non-compliance would render the PPN void. In any event, it is clearly stated that in so far as the presiding Magistrate is concerned, the PPN is treated as the application. Therefore, what is relevant, is a consideration by the Magistrate of the circumstances surrounding the alleged events, and whether the requirements of section 45 of the Act have been met such that a temporary protection order should be made for the protection of the aggrieved and other persons mentioned in the PPN. The learned Magistrate made the Temporary Protection Order based on his consideration of the contents of the PPN.

36. [36]
    Secondly, the Appellant states that the PPN is defective because, on the copy which he has, the signature of the investigating officer has not been witnessed.^[11]  There are copies of the notice on the file which do not have the witness’s signature. This may be because at the time of serving the PPN on the Appellant no witness was available.  Subsequently, the PPN was witnessed by what appears to be a “Sergeant D Carruthers” on 22 January 2019.^[12] This version of the PPN was filed in the court.

37. [37]
    Accordingly, the PPN is not invalid. It is clear that the Magistrate proceeded in the absence of the Appellant, and for that matter, in the absence of the Aggrieved. However, it is clear that the Appellant misunderstood the need for the Aggrieved to be at this preliminary hearing. The PPN issued by police means that it is the police who are the applicant in the application, and, at least at that time, the Aggrieved is not required. Subsequently, at the hearing of the matter, the Aggrieved did give evidence by phone.

38. [38]
    So, I am satisfied the grounds for the appeal do not have substance, and the PPN was a valid notice and properly treated by the court as an application for a domestic violence order that was made.

Appellants criminal history and its relevance to this application

39. [39]
    There is no reason advanced by the Appellant to explain the delay in bringing this application.

40. [40]
    I note the submission made by the Respondent, QPS, that first and foremost the Appellant requires leave of the appellate court to extend the time for the bringing of the appeal. The Respondent properly noted the decision in NBE v PRT & Anor where His Honour Judge Long SC stated:^[13]

“[6] To exercise her right of appeal, the notice of appeal should have been filed not later than 3 May 2016. However, s 165(5) allows this Court to extend the period for filing of the notice of appeal. It is well established that the general principles applicable to such an application require consideration of two matters in particular:

1. Whether there is good reason for the delay; and
2. Whether it would be in the interests of justice to grant the extension.

Generally those principles recognise that there is need to make, where feasible, at least some provisional assessment as to whether the prospective appeal is a viable one and to take into account thatassessment of the apparent strength or viability of the appeal in deciding whether the case is a fit one for granting the extension. That approach also allows for consideration of the proffered reasons for and length of delay and whether such delay has occasioned any relevant prejudice to the respondent.”

41. [41]
    As stated earlier, the Notice of Appeal does not address this issue.

42. [42]
    During oral argument, it became apparent that the Appellant has been charged with breaches of both the PPN and the Temporary Protection Order. A copy of the ‘not for production’ criminal history was provided.^[14] It is noted that the Appellant was convicted in the Caboolture Magistrates Court on 29 January 2019 with breach of the PPN by 2.  He was convicted and fined $200.00.  On 30 July 2019 the appellant was convicted in the Caboolture Magistrates Court of contravention of domestic violence order and was sentenced to one month imprisonment, suspended for eighteen months.  He had been convicted of other charges on 1 February 2019 and sentenced to twelve months’ probation on that occasion.

43. [43]
    The appellant has pending charges for breach of the PPN in January 2019 for which he was charged on 14 January 2020. That charge is before the Goondiwindi Magistrates Court. The appellant has other charges pending in the Caboolture and Pine Rivers Magistrate Courts. It appears that these charges may have been a motivating factor in the timing of this appeal. If so, then it is misconceived. The appellant has had numerous appearances in the Domestic Violence Court. Issues raised in this appeal do not appear to have been raised in any of them.

44. [44]
    Indeed, the Appellant has consistently stated that he is the victim here, and that Ms A has threatened his life and fabricated evidence against him, including the text message referred to in the PPN. He says that this was not proven to be from him and that he has never been provided with the meta data proving its authenticity. This may well be the case, but again, there is nothing to persuade the court that the Temporary Protection Order was not lawfully made, or to raise any matter which I could reasonable take into account to support his appeal for an extension of time.

45. [45]
    These issues were properly ventilated before the Magistrate who heard the matter at the final hearing on 2 December 2019. By then the appellant had filed a cross-application claiming violence against him by Ms A. This application was dismissed and a final protection order made in favour of Ms A and other named persons.^[15]  I note that the Appellant has appealed that decision. That appeal is yet to be heard and determined.

Orders

46. [46]
    In the circumstances, I find that leave should not be granted to extend time for the bringing of an appeal of the decision of the learned Magistrate to make a Temporary Protection Order on 23 January 2019.

47. [47]
    I find that the PPN was valid.

48. [48]
    I further find that the learned Magistrate properly exercised his discretion to issue the Temporary Protection Order on 23 January 2019.

49. [49]
    In those circumstances, the appeal is dismissed.