QKL v Queensland Police Service
[2021] QDC 195
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- QKL v Queensland Police Service[2021] QDC 195
- Add to List
QKL v Queensland Police Service[2021] QDC 195
QKL v Queensland Police Service[2021] QDC 195
DISTRICT COURT OF QUEENSLAND
CITATION: | QKL v Queensland Police Service [2021] QDC 195 |
PARTIES: | QKL (applicant) v QPS (respondent) |
FILE NO/S: | BD 2852 of 2020 |
DIVISION: | Criminal |
PROCEEDING: | Appeal pursuant to s 164 of Domestic Violence and Family Protection Act 2012 (Qld) |
ORIGINATING COURT: | Magistrate’s Court |
DELIVERED ON: | 18 June 2021, delivered ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 June 2021 |
JUDGE: | Burnett AM DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – where the appeal concerned a protection order made under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) – where Magistrate erred in finding the matter without a hearing resulting in the denial of natural justice – whether Magistrate erred in finding a domestic and family violence protection order was desirable in the circumstances |
LEGISLATION | Domestic and Family Violence Protection Act 2012 (Qld) s 37, 164, 168, 169, |
CASES | MDE v MLG & QPS [2015] QDC 151 |
AJC v Gijsberten & Ors [2019] QDC 195 | |
COUNSEL: | K Bryson for the applicant D Younger for the respondent |
SOLICITORS: | Kilroy Callaghan Lawyers for the applicant Queensland Police Service for the respondent |
- [1]The appellant appeals against the whole of a decision made by the Holland Park Magistrate’s Court on the 10th of September 2020, by which it was decided that it was necessary to order a domestic violence order. The order was warranted as necessary because the appellant had no insight into her behaviour. For the appellant it was submitted that the Magistrate did not allow a hearing for the appellant to adduce evidence at the hearing or cross-examine other parties. Ultimately, the final decision was made upon the papers and the appellant was not afforded an opportunity to give evidence in relation to her insight and to address issues of whether the order was necessary.
- [2]Upon that basis, the grounds of appeal are first, that the magistrate erred in finding the matter without a hearing resulting in a denial of natural justice, and second, that the magistrate erred in finding a domestic and family violence protection order was desirable in the circumstances.
- [3]The principles informing the approach to an appeal are provided for in the Domestic and Family Violence Protection Act 2012 (Qld), hereinafter the Act. Section 164 of the Act provides a person who is aggrieved by a decision to make a domestic violence order has a right of appeal against a court making the decision. Section 168 provides that an appeal must be decided on the evidence and the proceedings before the court that made the decision being appealed, although the the appellate court may order that the appeal be heard afresh in whole or in part. Section 169 deals with the orders that an appellate court would make, and they include that the appellate court may set aside the decision and substitute another decision or set aside the decision appealed against and remit the matter to the court that made the decision.
- [4]The process of appeal under the Act has been explained in a number of decisions. Relevantly, in the decision of MDE v MLG & QPS [2015] QDC 151, at paragraph 15, Judge Morzone observed:
The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced. Where a point was not taken in the trial court and evidence could have been adduced to prevent the point from succeeding, or the point requires a further trial, it cannot be taken afterwards. Otherwise, appellate courts generally tolerate new points.
- [5]In the decision of AJC v Gijsberten & Ors [2019] QDC 195, Judge Lynham at paragraph 9, said:
In an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of appeal is the result of some legal, factual, or discretionary error. The appeal requires a real review of the trial and the Magistrate’s reasons and for a determination to be made of the relevant facts and issues from the evidence, giving due deference, and attaching a good deal of weight to the Magistrate’s view.
- [6]Turning now to the proceeding below; an initial application for relief pursuant to section 37 was made upon the application of a police officer. The proceeding was served and came on for mention, and ultimately on the morning of the 22nd of July 2020, at that mention, neither the aggrieved or the respondent were present, a matter that corroborates the view of the appellant’s solicitor on the day that the purpose of the appearance on that day was for the disposition of procedural matters only. In fact, the following exchanged occurred at T1, page 3 at line 25:
Bench:
QKL has filed some fairly brief material. What’s the intention here today, Ms Kilroy?
Ms Kilroy:
Ms Bryson, Kim Bryson, is briefed in the matter and submissions were sent. They have been rejected so instructions from counsel is a list for hearing half a day.
Bench:
Well, the problem, Ms Kilroy, is a given on the course for the material from your – from the respondent. I would normally determine this on the basis of the material before the court this morning. What’s the purpose of a hearing?
Ms Kilroy:
The aggrieved is of the view that this is a one off incident, and it’s not an ongoing or a domestic violence incident. And so we want to actually explore that here in a hearing so that she can put that into evidence before your Honour. And –
She was interrupted –
Bench:
She has put that into evidence. She swore an affidavit.
Ms Kilroy:
Yes.
Bench:
Neither the aggrieved nor the respondent feel that a domestic violence order is warranted.
Ms Kilroy:
Yes, that’s correct.
Bench:
But that’s just their opinion. And it certainly doesn’t seem to be contested that domestic violence has occurred, even on the respondent’s position. If this matter is purely being limited to an argument of whether or not the matter is necessary or desirable, why do we need half a day?
Ms Kilroy:
We probably don’t need half a day. It would just be the two sisters that need to give evidence - - -
Bench:
They have given evidence.
Ms Kilroy:
Yes.
Bench:
Is it intended to cross-examine the aggrieved?
Ms Kilroy:
It is, your Honour.
Bench:
For what purpose?
Ms Kilroy:
To actually get – we have instructions of what’s actually occurred prior to the alleged, I suppose you’d call it, incident, and we’d like to explore that with WRL in cross-examination.
Bench:
Is that addressed in your client’s examination-in-chief? I mean, the evidence of the aggrieved, such as it is, doesn’t even give rise to a cross-examination on that point. Although, cross-examination can be at large. The aggrieved doesn’t actually provide any positive information about the incident at all. The most compelling evidence, in fact, the only real evidence of what occurred is your client’s. And that’s quite comprehensive. What exactly is wanting to be explored with the aggrieved? The situation seems to be that she was heavily intoxicated, in any event.
Ms Kilroy:
They had both been drinking your Honour. Yes.
Bench:
Alcohol unfortunately features in many domestic violence matters. But what is the extent of what needs to be explored? Even if to the extent that if I – if cross-examination is to be limited to certain issues…
Ms Kilroy:
I believe the issue is they’re sisters. They have obviously been sisters for decades. There has been no violence in the relationship; this is a one-off incident that’s not a domestic violence incident. And therefore, that is brings rise to, I suppose, cross-examine the aggrieved in relation to that because QKL – sorry, her name is QKL, full name - - -
Bench:
Yes. Sure.
Ms Kilroy:
QKL is at risk of losing her employment if a domestic violence order is actually agreed to by the Court - - -
Bench:
Or is made. Yes.
Ms Kilroy:
Or is caused by the Court.
Bench:
Sure.
Ms Kilroy:
And that is an issue because both parties believe it is not a domestic violence incident. It is a one-off incident.
A little further on it continues. Bench:
These hearing reviews are substantive reviews, not administrative reviews. There is a review of the evidence to ensure that there are matters that need to go to trial. Many times, there isn’t. This is on the cusp. But there certainly does seem to be some very important arguments in relation to whether or not an order is necessary or desirable. On the evidence before the Court –
The Magistrate continues:
There’s certainly a relevant relationship. I’m satisfied on the evidence-in-chief that an act of domestic violence has occurred. The argument – I think there is an argument to be had – is whether or not an order is necessary or desirable in all of the circumstances. That certainly can be the subject of a determination. So subject to any further submissions from either Sergeant French or Ms Kilroy, it’s my intention that the conduct of this matter from here doesn’t seem to require any further cross-examination of either party. The submissions as to why the order is or is not necessary or desirable can be reduced to writing, and I think it can be determined on that basis, again, acknowledging the principles that trying to minimise the stress of the parties going through a hearing process is one of the core principles - - -
The Magistrate continues:
So while you’re on your feet, Ms Kilroy, what do you say about that approach? Simply writing submissions in relation to why an order is or is not ‑ ‑ ‑
Ms Kilroy:
Yes. And I ‑ ‑ ‑
Bench continues:
‑ ‑ ‑ necessary or desirable.
Ms Kilroy:
Agree with that. The submissions would be sufficient, I believe. Yes.
A little later on the Bench continues:
Well, as there’s no opposition, I think that is an appropriate way of respecting the paramount principles of the Act, but also giving it a proper judicial consideration on the matters before the Court.
- [7]Before addressing the decision which was ultimately made, which is the subject of appeal, and the submissions by each of the parties, a matter does require comment. As was evidenced in the transcript and was apparent from the debate this morning, there was no clarity concerning the material which was to be considered by the Magistrate. Apparently, he had a statement from the respondent and one from the aggrieved, albeit it was a limited statement.
- [8]The Magistrate’s final decision reveals that he referred to a more extensive body of material in making his decision. That additional material included body-cam footage and text messages sent by the respondent to the aggrieved. It is not clear from the record if Ms Kilroy had an appreciation of that matter and of the nature of that material at the time that she was, in my view, cajoled into accepting the matter proceed on the papers as the Magistrate urged.
- [9]The file indicates that material was collected for the appellant on the 1st of April 2020. While it might have been in the possession of her lawyers on the 22nd of July 2020, it may not have been considered, especially given the appellant’s solicitor was anticipating the hearing on the day as a procedural one. Unsurprisingly, she may not have been over the evidence, which she had briefed to her counsel.
- [10]Prior to the ruling, the appellant’s solicitor referred to the need to consult counsel. Plainly, the ruling was made before that opportunity was permitted. The Magistrate cannot be criticised for any discretionary ruling but proceeding with haste set matters up for what followed.
- [11]In his reasons, the Magistrate revealed a number of matters that support the appellant’s complaint. I am not going to recite the reasons at length, but I will take you to the particular issues which occasion me concern. First, he stated that he was unable to determine from the evidence whether the aggrieved was a particularly vulnerable person requiring extra consideration in the circumstances. He stated that it was difficult to form a view or give weight to her view, that is the aggrieved, in the absence of explanation as to why she, that is the aggrieved, “did not seek the order – see the order as necessary or desirable”. I note that the aggrieved did not support the making of the order.
- [12]Next, he observed that the versions of the appellant and the aggrieved, as described in the affidavits, were significantly different.
- [13]Next, he observed that the appellant’s affidavit suggested that the appellant sought to minimise her conduct, and an adverse inference was drawn in relation to that matter. I note that it was a matter she was never asked of or invited to respond to.
- [14]The Magistrate noted that he thought the appellant and her evidence was self-serving. He concluded that he preferred the aggrieved’s position without having had more than an opportunity to compare affidavits.
- [15]The Magistrate criticised the appellant’s text as, “emotional abuse,” without having afforded the appellant any opportunity to explain that text. And the Magistrate found the appellant’s
…lack of insight into domestic violence patterns of behaviour and her callous disregard of the aggrieved’s feelings and the injuries inflicted upon the aggrieved are no way set off by what the respondent says is her shame and embarrassment.
- [16]This finding, again, had no foundation in the facts before the Magistrate. It was a finding premised upon some fact that was never put to the appellant. Likewise, his finding of the appellant’s
…normalisation of violence, the lack of insight into offending behaviours, the reluctance to be held accountable for her actions, the self-interest in being exposed to the consequences of those actions, the lack of rehabilitation or attempt to gain insight into domestic violence behaviours ---
- [17]The matters seemed to have no foundation in the evidence that was placed before him. Again, if they are conclusions premised upon facts that are found, then they were matters that ought to have been, put to the appellant, but never were.
- [18]I note that these are seriously prejudicial findings, and findings that ordinarily might only be expected to be made after having seen and appropriately heard the relevant witnesses against whom the findings were made.
- [19]In response to those particular findings, I note the submissions on behalf of the respondent to the appeal that the Magistrate was entitled to draw the conclusion that the appellant’s version was self-serving and convenient, but respectfully, again, as a matter of fairness, that matter ought to have been put as a conclusion based upon findings of fact, premised upon that material which was before the Magistrate.
- [20]Likewise, in respect of the conclusion that the appellant’s affidavit demonstrated a lack of understanding of the dynamics of domestic violence - even to the point of normalisation - is a finding which, as a matter of fairness, ought to have been put, premised upon findings of fact made by the Magistrate.
- [21]And, likewise, the finding that the appellant lacked insight into domestic violence patterns and behaviour, had callous disregard to the aggrieved’s feelings and injuries inflicted upon her were, again, matters that, as a matter of fairness, ought to have been put in order to permit not only the appellant the opportunity to respond and explain, but the Magistrate the opportunity to assess those responses before making any findings.
- [22]Now, understandably, the appellant contends primarily that there has been a failure of natural justice. Plainly, if the appellant had been permitted cross-examination of the aggrieved, as was sought, initially one of two matters would have followed. First, the aggrieved would have revealed satisfying answers to the appellant’s contentions, and a decision would have been informed by those matters, providing, for instance, a foundation for findings such as to credit, which were ultimately made by the Magistrate.
- [23]Or, secondly, the appellant would have been cross-examined herself, including on matters that were unilaterally determined against her by the Magistrate in his decision. The outcome of that cross-examination would have confirmed the Magistrate’s suspicion or, alternatively, have given him pause for thought.
- [24]Either way, the outcome, in my view, was entirely unsatisfactory. The only real answer to the appellant’s appeal is the submission that the appellant acquiesced to this course and must be bound by the conduct of the proceeding. I would accept that contention if this was based upon a tactical decision at trial by the appellant, however, I am not satisfied it was.
- [25]At the time of the Magistrate’s ruling, I cannot be reasonably satisfied the appellant would have permitted an informed acquiescence. This was a mention. I appreciate the pressure on the Magistrate, and the way in which he runs his list, as is expressed in his observations in his exchange with the solicitor. No doubt as he said to Ms Kilroy, it will often be the case that many of the domestic violence applications before him are capable of resolution on the papers. But when an experienced solicitor submits for a course of action based upon advice of experienced counsel, care should be taken.
- [26]If there was a real need to press the matter on – and I am not sure that in this case there was – then it should have been stood down for further advice to be taken. The system works best when, within reason, the experienced members of the profession work with the Court and the Court works likewise. Plainly, the same latitude cannot be afforded to self-litigants or practitioners who have demonstrated an inability to facilitate the administration of justice, but that is not my experience with these practitioners, nor, given the earlier remarks made by the Magistrate, is that consistent with his impression of the solicitor.
- [27]It is not uncommon in these busy jurisdictions for practitioners, especially barristers, to form a view based upon an appraisal of material, and not fully communicate all the matters to his or her instructor. In any event, respectfully, when in a jurisdiction such as this, matters are going to be taken up in cross-examination, particularly directed, potentially, at issues of credit, it is not entirely appropriate, or in my view necessary, that counsel reveal their full hand. To some extent, there must be trust by the Courts in the competence of those that appear before it, unless there is a basis for that trust being displaced.
- [28]By reference to the matters I have addressed earlier, there was much to be cross-examined upon, of both the applicant and the respondent. Those matters would have been critical to the only issue which is alive in this application, and that is whether or not the order was necessary or desirable. That opportunity was denied.
- [29]Moreover, there is further material before the Court which is relevant to the applicant’s personal circumstances, plainly because of the way in which the ruling was made on the first occasion, and the denial of natural justice. The Court denied the appellant the opportunity to place that material before it, which, too, ought to have been considered in the ordinary course.
- [30]In my view, the appeal should be allowed. It follows that I will order that the decision made on the 10th of September 2020, directing that a domestic violence order be made against the aggrieved in favour of the respondent be set aside and I will remit the matter to the Holland Park Magistrates Court for determination by a Magistrate other than Magistrate Young.
- [31]The matter arises in relation to whether or not a temporary protection order ought to be made. I am not going to make a temporary protection order. I am particularly mindful of the matters I have outlined here. I have read the material. The one particular matter, which, in my view, does inform my approach is the view of the aggrieved. It is evidenced from all the material that she does not want a domestic violence order made, and on that basis of course, there not having been history between these sisters, it does not seem to be that a temporary order is necessary. I will also direct that the respondent, Commissioner of Police, pay the costs of and incidental to the applicant to be agreed, or in default of agreement, within 28 days to be assessed on the standard basis.