Sinclair v Lynch[2021] QDC 190

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Mr Sinclair appeals against an order made against him under the Peace and Good Behaviour Act 1982 (Qld) (the Act). The order was that he keep the peace and be of good behaviour towards Mr Lynch for a period of 12 months with an additional condition that Mr Sinclair is not to approach, enter or remain within 50 metres of Mr Sinclair or Mr Kennelly.^[1]
2. [2]
   Mr Sinclair and Mr Lynch were previously friends. At some stage the friendship soured. This was when Mr Lynch became friendly with a third male, Mr Kennelly, who was not Mr Sinclair’s friend. 
3. [3]
   In late 2019, Mr Lynch brought a complaint against Mr Sinclair seeking an order under the Act.  An acting Magistrate, in his capacity as a justice, found the complaint was substantiated, summonsed Mr Sinclair, and the complaint proceeded to hearing before the Magistrates Court at Wynnum on 3 September 2020.  At the conclusion of the hearing, the Magistrate made the order referred to above.
4. [4]
   This appeal proceeds under section 222 of the Justices Act 1886 (Qld).  The appeal is by way of rehearing.  This court must conduct a real review of the original hearing and the Magistrate’s decision and make its own determination on the evidence giving due deference and attaching significant weight to the Magistrate’s reasons. To succeed on appeal the appellant must establish some legal, factual, or discretionary error.^[2]

Relevant law

5. [5]
   Before moving to the evidence, it is appropriate to consider the relevant sections of the Act.
6. [6]
   Section 5 relevantly provides:

5  Complaint in respect of breach of the peace

“(1) A person (the complainant) may make a complaint to a justice of the peace that a person has threatened—

1. (a)
   to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

2. (b)
   to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

3. (c)
   to destroy or damage any property of the complainant; or

4. (d)
   to procure any other person to destroy or damage any property of the complainant.

and that the complainant is in fear of the person complained against (the defendant).

2. (2)
   A person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.

(2A) If the matter of a complaint under subsection (1) or (2) is substantiated to the justice’s satisfaction, and the justice considers it is reasonable in the circumstances for the complainant to have the fear mentioned in the subsection, the justice may issue—

1. (a)
   a summons directed to the defendant requiring the defendant to appear at a stated time and place before a court;

to answer the complaint and to be further dealt with according to law.

3. (3)
   …mediation

3. (4)
   In this section—

complaint means a written complaint made on oath.”

7. [7]
   Section 7 relevantly provides:

7 Magistrates Court may make order

1. (1)
   The court before which the defendant appears in obedience to the summons shall hear and determine the matter of the complaint.

2. (2)
   Without limiting any other evidence given by or on behalf of the defendant, the defendant may produce evidence that the complaint is made from malice or for vexation only.

3. (3)
   Upon a consideration of the evidence, the court may—

1. (a)
   dismiss the complaint; or

2. (b)
   make an order that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the court thinks fit.

4. (4)
   The order made by the court may contain such other stipulations or conditions as the court thinks fit.

8. [8]
   Bowskill DCJ summarized the relevant law in Harvey v Walker.^[3]
9. [9]
   The legislation has been amended since then, but only to the extent the relevant section numbers have changed. I draw from her summary as follows.
10. [10]
    Once a complaint has been made to a justice, the first step in the process involves a justice of the peace considering whether the “matter of a complaint”, under section 5(1) or section 5(2) of the Act, has been substantiated to the justice’s satisfaction, and considering whether it is reasonable in the circumstances for the complainant to have the relevant fear.
11. [11]
    For this purpose, the justice of the peace may make such inquiries and receive such evidence as the justice thinks fit.^[4] If they are so satisfied, the justice may issue a summons directed to the defendant, requiring them to appear before the Magistrates Court.^[5] The justice may also refer the matter to mediation with the complainant’s consent.^[6]
12. [12]
    Section 7(1) of the Act requires the Magistrates Court, before whom the defendant appears in accordance with the summons, to “hear and determine the matter of the complaint”.
13. [13]
    “Upon a consideration of the evidence”, the Magistrates Court may dismiss the complaint, or make an order that the defendant keep the peace and be of good behaviour for such period as the court thinks fit.^[7]
14. [14]
    Proceedings on a complaint under section 5 of the Act are civil, not criminal in nature, so that “the matter of the complaint” does not need to be proved beyond reasonable doubt. However, it is well established that, before an order can be made under section 7(3) of the Act, the strength of the evidence necessary to establish the basis for an order under section 6 must take into account the seriousness of the allegation made against the person. That is, given the serious nature of the matters referred to in section 5 – involving threats to do or to procure acts ordinarily associated with violence to person or property – in applying the civil standard of proof, on the balance of probabilities, the Magistrates Court must apply the principle in Briginshaw v Briginshaw.^[8]

Grounds of Appeal

15. [15]
    Mr Sinclair’s grounds of appeal may be summarised as follows:

1. Mr Lynch did not present any evidence that Mr Sinclair had made any threats therefore there were no legal grounds to commence the action.
2. Mr Lynch lied to the Justice of the Peace when he took the original oath.
3. The Magistrate erred when he failed to grant an adjournment for Mr Sinclair to obtain a transcript of evidence given before another court.
4. Mr Lynch and Mr Kennelly lied when signing their affidavits and lied under oath in court.
5. The Magistrate did not allow Mr Sinclair’s witness to give evidence and showed complete prejudice towards him.
6. The Magistrate failed to state his findings of fact, how he applied the legal rules to the facts, and failed to allow evidence to be presented to the court that had a direct bearing on the truth and therefore the outcome of the case.

The complaint and hearing

16. [16]
    Mr Lynch in his original complaint to the Magistrates Court listed the grounds of his complaint as follows:

“On dozens of occasions I have been subjected to physical threats and very loud instances of public degrading and vilification.  These have occurred at Wynnum Library, Wynnum Woolworths, Manly Hotel, Manly Shopping Centre, East Coast Marina (my home) and other places.  He has blatantly stalked me dozens of times.  I fear for my safety and that of my boat (my home).”^[9]

17. [17]
    On its face the complaint raised allegations of threats of physical violence by Mr Sinclair to Mr Lynch. Mr Lynch stated he feared for his safety and that of his boat. Those statements prima facie meet the criteria of section 5 of the Act, that Mr Sinclair had made threats to assault Mr Lynch and that Mr Lynch feared for his safety and the safety of his boat.  The original complaint did not, however, list examples of the physical threats. It is not clear on the court file whether the justice who considered the matter under section 5 of the Act had access to affidavit material from Mr Lynch when he determined the complaint was substantiated. It would have been preferable if the justice made further enquiries from Mr Lynch to provide examples of the physical threats, but that he did not do so is not determinative of the appeal because the appeal should be allowed for other reasons.
18. [18]
    I will move on to consider some of Mr Sinclair’s other complaints.
19. [19]
    The evidence at the hearing comprised Mr Lynch’s affidavit sworn 11 June 2020 and oral evidence. In his affidavit, Mr Lynch listed specific instances of alleged misbehaviour by Mr Sinclair directed at him. These included:

• On 10 March 2019, Mr Sinclair yelled out foul language, shouted loud abuse, followed Mr Lynch to his boat, walked by then waited just past his boat and yelled loud abuse using Mr Sinclair’s and Mr Kennelly’s names.
• On 8 June 2019, as Mr Lynch left the Manly Hotel, Mr Sinclair mouthed off loudly and yelled “you won’t be drinking here anymore”.
• On 9 June 2019, as Mr Lynch walked past Mr Sinclair at the Manly Hotel, Mr Sinclair yelled Mr Lynch’s name loudly.
• On 11 June 2019, at the East Coast Marina, Mr Sinclair walked past Mr Lynch and said loudly “still got the shits” three times.
• On 27 June 2019, at the Manly Newsagency, Mr Sinclair shouted abuse in front of customers at the front shop counter.
• On 24 October 2019, at the Manly Shopping Centre, Mr Sinclair shouted foul language four times including “ass buddy”.
• On 3 November 2019, at the East Coast Marina, Mr Sinclair was present when a friend of his, Mr Chendra, struck Mr Lynch with a punch while he was walking away causing him to fall and bleed heavily.  Mr Sinclair did not come to Mr Lynch’s aid. Mr Sinclair did not stop Mr Chendra when he directed a high-power water hose at Mr Lynch’s head.
• On 6 December 2019, at the Wynnum Courthouse, Mr Sinclair shouted “arsehole” at Mr Lynch. Everyone in the court area heard.
• On 6 December 2019, at the Manly Hotel, Mr Sinclair sat near Mr Lynch and used foul language.
• On 13 March 2020, at the Wynnum Courthouse, Mr Sinclair vocally assaulted Mr Lynch and Mr Kennelly in the court waiting room.
• On 29 May 2020, at the Manly Shopping Centre, Mr Sinclair shouted from behind Mr Lynch “I hope you’ve got plenty of money, about $3,000 or $4,000”.

20. [20]
    At the hearing Mr Lynch gave evidence that Mr Sinclair had been verbally abusive and used foul language on hundreds of occasions.  Only a few days prior to court, Mr Sinclair was 10 yards behind Mr Lynch.  There were several other people in the vicinity. Mr Sinclair called out “Graham Lynch” in a very loud voice and something about a lawyer. 
21. [21]
    Mr Lynch gave evidence that when he was punched by Mr Chendra during a dispute on an earlier occasion, Mr Sinclair was present and did nothing to stop Mr Chendra or assist Mr Lynch.
22. [22]
    Mr Lynch gave evidence he thought Mr Sinclair may escalate his actions against Mr Lynch.  However, Mr Lynch conceded he could not say that Mr Sinclair had procured Mr Chendra to hit him.
23. [23]
    Mr Lynch said he would like to be able to walk the streets in his community without “this rotten verbal abuse.  All Mr Sinclair needs to do in my view is to just keep his mouth closed”.^[10]  Mr Kennelly also gave oral evidence on behalf of Mr Lynch.  He said that, often when he was in Mr Lynch’s company, Mr Sinclair would yell abuse at him and Mr Lynch.  Mr Sinclair often called them “bum buddies”, “arse fuckers”, “homosexual” and words like that. Mr Kennelly said the abuse had increased over an extended period.
24. [24]
    Under cross-examination, Mr Sinclair put to both Mr Lynch and Mr Kennelly that they were exaggerating or lying.  Both witnesses maintained they were not. 
25. [25]
    Mr Sinclair gave evidence and tendered a police statement he made as a witness regarding the earlier assault by Mr Chendra on Mr Lynch. I consider nothing of relevance arises from that statement and I disregard it.  During his evidence, Mr Sinclair admitted that he used the word “arsehole” on numerous occasions.^[11] He also admitted asking Mr Lynch if he and Mr Kennelly were in a homosexual relationship, and he had told Mr Lynch that rumours to that effect were rife in the community.  Mr Sinclair denied using the terms “bum boy” and “bum buddies”.^[12] He denied ever threatening Mr Lynch or threatening his boat. Mr Sinclair gave evidence he had moved away from the Manly Marina.
26. [26]
    Prior to the Magistrate handing down his decision, both parties agreed to speak with a mediator and Mr Sinclair gave a written undertaking which was tendered to the court.  The agreement stated as follows:

“I, Bruce Charles Sinclair agree that if I see Graham Patrick Lynch on the street or anywhere else, will not talk to him.”^[13]

27. [27]
    The agreement was signed by the parties.
28. [28]
    Unfortunately, further conversations between the Magistrate and Mr Sinclair occurred during which Mr Sinclair reiterated that Mr Lynch and Mr Kennelly had lied and would continue to lie. As a result, the Magistrate decided not to accept the undertaking. The Magistrate then gave reasons for deciding to make a peace and good behaviour order. The Magistrate’s brief reasons are set out as follows:

“I am satisfied having considered the material that it is appropriate the court grant an order naming you as a respondent.  Now the order will be that you’ll keep the peace and be of good behaviour for a period of 12 months from today’s date.  Is[sic] there any other conditions you’re seeking?”^[14]

29. [29]
    The applicant replied, no, that was sufficient.
30. [30]
    Mr Sinclair then submitted to the Magistrate that because Mr Lynch had already lied in court, what would stop him making false allegations in the future whilst he was under the good behaviour order. The Magistrate then added a further condition on the order that Mr Sinclair was not to approach within 50 metres of either Mr Lynch or Mr Kennelly.

Consideration

31. [31]
    Unfortunately, the Magistrate’s decision is devoid of any reasons for concluding the making of an order was appropriate. There is merit in Mr Sinclair’s submission that the Magistrate failed to state findings of fact he had made, the law that he applied in reaching his decision and how he applied the relevant law to the facts as he found them to be. The Magistrate made no express findings in relation to the alleged incidents nor how the facts proved the elements under section 5 of the Act. The Magistrate should have made clear in his reasons how the evidence amounted to threats, or if not threats under section 5(1) of the Act, whether he was satisfied to the requisite standard that Mr Sinclair’s conduct was intentional and actually caused Mr Lynch fear of damage to Mr Lynch’s property under section 5(2) of the Act.
32. [32]
    It is not clear what evidence, if any, the Magistrate considered to determine a good behaviour order should be made. It is also not clear whether the Magistrate considered either limb of section 5 of the Act. 
33. [33]
    What is undeniably clear is that the Magistrate has failed to give any reasons to support the exercise of his decision to impose an order for good behaviour.
34. [34]
    An error of law will have occurred when the court which hears and decides this type of application does not provide adequate reasons.^[15] The constant challenge in a busy Magistrate’s court is to balance the need to administer justice expeditiously with the need to include reasons that support the Court’s decision.
35. [35]
    I am satisfied the Magistrate erred by not providing any reasons for his decision to grant the order in the circumstances of the present case.

Disposition of the appeal

36. [36]
    The appeal is allowed. I can either set aside the Magistrates order and order the matter be remitted back to the Magistrates Court for further hearing or I can attempt to determine the matter on the evidence before me. The order has now been in place for approximately 11 months.
37. [37]
    I have considered Mr Lynch’s evidence, and, even assuming his evidence to be credible and reliable as to the occasions Mr Sinclair abused him, as the Magistrate must have done, (even though he did not say so), I am unable to see how the Magistrate concluded, and I am unable to conclude, that the incidents of verbal abuse constituted a relevant threat to assault, or cause bodily injury to the complainant or anyone under his care, or to procure any other person to assault the complainant, or damage Mr Lynch’s property under section 5(1) of the Act. I am also not satisfied to the requisite standard that Mr Sinclair’s intentional verbal abuse directed at Mr Lynch caused Mr Lynch to fear that Mr Sinclair would destroy or damage any of his property. It follows the evidence is insufficient to warrant the granting of a good behaviour order under legislation which is concerned with threatened assaults on persons or property.
38. [38]
    I will only deal briefly with Mr Sinclair’s other grounds of appeal. There is no evidence, apart from Mr Sinclair’s evidence, to prove Mr Lynch lied when he swore his complaint or lied in his affidavit.  There is no substance in his complaint that Mr Kennelly lied for the same reason. Although the Magistrate did not specifically make findings of credit, it can be inferred from a reading of the transcript that he formed a view favourable to Mr Lynch’s evidence.  In fact, Mr Sinclair himself made certain admissions to abusing Mr Lynch and Mr Kennelly by using the word “arsehole” on occasions.^[16] There is also no merit in Mr Sinclair’s submission that the Magistrate should have granted him an adjournment to allow him to obtain a transcript of an earlier proceedings. The transcript was clearly not relevant to the peace and good behaviour proceedings and would have been inadmissible.
39. [39]
    To conclude, upon my review of the evidence and giving full weight to the learned Magistrate’s views, I am not satisfied the evidence supports the Magistrate’s granting of the order.
40. [40]
    However, this judgment also does not prevent Mr Lynch filing a further complaint for a peace and good behaviour order against Mr Sinclair, or making a complaint to police, should the need to do so arise in the future.

41. [41]
    I make the following orders:

1. The appeal is allowed.  The order of the Magistrate is set aside, and the complaint is dismissed. 
2. The appellant was unrepresented.  There will be no order as to costs.