LJV v Commissioner of Police[2022] QDC 220

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the decision of a Magistrate to convict the defendant, LJV, of one breach of a domestic violence order.  The breach was, in the scheme of things, a modest one.  It was said to arise from a text sent by the defendant to the aggrieved the day before the defendant was to appear before the Magistrates Court in response to another charge of breaching that order.  The text was sent at about 11:00 am and it said:

You will need to pick up the kids from school today as I need to prepare for court tomorrow morning to contest the bogus claims you have laid against their father in yet another alienation attempt.  I will pick up the children as normal from school on Friday depening [a typographical error, I infer] on the decision from the judge    

2. [2]
   As I have said, it was uncontentious at the trial that that text was sent in circumstances where LJV was before the Court to be dealt with for another alleged breach of that protection order on the following day.  That matter, in fact, came before the Court and he was convicted of a breach of the order (the particulars of which are not before me) and sentenced to a period of probation of 18 months, after a trial.  There is no suggestion in the evidence before his Honour or before me on the appeal that LJV breached that probation order, which still has a few months to run. 
3. [3]
   The text was said to be a breach of the protection order in two ways: 

   1. (a)
      By breaching condition 1 of the order, which was made by consent without admissions in September 2019, was that the aggrieved be of good behaviour and not commit domestic violence against the aggrieved.  Condition 1 is the standard minimum condition included in protection orders; and
   2. (b)
      By breaching condition 5 which provided that the respondent was prohibited from contacting, attempting to contact, or asking someone else to contact the aggrieved by any means whatsoever including by telephone, text or internet, except concerning parental or contact issues (but which could only be done by text message or email).
4. [4]
   The learned Magistrate, in his reasons, concluded primarily that the text breached condition 5 because it was contact by text which did not fall within the scope of the exception, that is, that the contact was, “concerning parental or contact issues”.  His Honour also found that the text was a breach of condition 1 because it comprised emotional abuse either because it was offensive or because it was intimidating.  There are difficult issues that arise in the proper construction of the Domestic and Family Violence Protection Act 2012 (‘the Act’) when dealing with the question of emotional abuse.  I put that to the side for one moment because, in my respectful view, the text did comprise a breach of condition 5 and that is for this reason. 
5. [5]
   It seems to me, on the proper construction of the condition, that if contact is made by a communication, and there are parts of that communication which do not concern parental or contact issues, then that will be a breach of condition 5. That is, if part of a communication falls outside the scope of the exception, there will be a breach of condition 5, even if it also contains parts that fall within the exception.  I did not understand the appellant’s Counsel to contend to the contrary, but if I have misunderstood that, to my mind that clearly must be so. 
6. [6]
   It can be tested in this way.  Let us say a text was sent saying, “Can you pick up the kids today because I can’t do it because I’m going to kill myself if we don’t get back together”.  It must be the case that the latter gratuitous and irrelevant content causes the contact to breach condition 5.
7. [7]
   In that case, then, we look at what was said in the particular text.  The text began in a way which clearly did fall within the scope of the provision.  It begins, “You will need to pick up the kids from school today…”.  That contact is concerning parental or contact issues.  The text then reads, “… as I need to prepare for court tomorrow”.  That gives a reason as to why the change to the parent arrangements is required.  Again, I think that falls within the scope of the exception. 
8. [8]
   The words, “… to contest the bogus claims you have laid against their father in yet another alienation attempt”, fall outside the scope of the exception and I say that for this reason.  The exception to the condition uses the word, “Concerning”.  Concerning is one of those connecting words well-known to the law like, in respect of, in relation to, in connection with, caused by, and so on.  It requires the identification of the nature of the link between two matters to be determined by reference to the context in which the word is used. 
9. [9]
   Here the phrase objected to, in my view, on its proper construction, might be about parental or contact issues because it is asserting, in effect, that the orders that have been made are dishonestly obtained and unsustainable. That, however, does not mean they are concerning parental or contact issues which, in my view, is plainly about concerning the management or administration of those issues.  It was an unnecessary and aggressive addition to what otherwise would have been a perfectly proper communication. 
10. [10]
    For that reason, I consider that the offence was made out.  I should say the other part of the message, “I’ll pick up the children as normal from school on Friday depending on the decision of the judge”, seems to me to also not be a breach of condition 5, although on one view it might have gone close. 
11. [11]
    That makes it unnecessary for me to decide whether the conviction can be sustained on the basis of  a breach of condition 1. I should, however, say some things about it. 
12. [12]
    I fully recognise the pressures that Magistrates are under in the conduct of their difficult job.  I fully recognise that they frequently do not get the assistance which might be available to this Court and the Supreme Court.  However, the trial insofar as it related to condition 1, did miscarry.  It miscarried because his Honour descended into the arena in a case where the Commissioner of Police was represented by a Police Prosecutor and the defendant was represented by a solicitor. 
13. [13]
    In that context, a Court has to be careful just how much it intervenes in a case, and should, resist the temptation to fill in gaps which the Court thinks might exist in the prosecution of the case.   His Honour did not observe that limitation on the proper role of the Court, as I now explain.
14. [14]
    After the aggrieved had completed her evidence-in-chief and after the defendant’s solicitor (Mr Cramb) had cross examined her, his Honour began examining the aggrieved at some length to adduce from her evidence of previous acts which his Honour thought was relevant to determining whether the email amounted to domestic violence. The aggrieved had already given fairly brief, and one might have thought not particularly persuasive, evidence about that issue and been cross examined on that limited evidence. 
15. [15]
    The effect of his Honour’s intervention was to lead further, and quite significant, evidence in the prosecution case of previous alleged acts of domestic violence without any notice to the defendant’s solicitor. The defendant’s solicitor was then put in the position of having to decide what, if anything, he wanted to cross-examine further about. 
16. [16]
    His Honour’s intervention continued despite objection from Mr Cramb.  When his Honour began his questioning, Mr Cramb objected and his Honour said, “You’re objecting to my question”, and he said, “Yes.  I am”.  His Honour made the comment, “That’s a brave lawyer”. 
17. [17]
    That was not a proper observation.  It is part of the duty of a lawyer appearing in a case to assist the Court inter alia by identifying where, in the opinion of the lawyer, the Court is not complying with its duty to remain impartial between the parties at all times and to ensure a fair trial. There is numerous intermediate Court of Appeal judgments to that effect, mostly in the litigant-in-person situation. I point out that not only was Mr Cramb being brave, but he was also doing his duty.  His Honour ought to have paused and thought about the wisdom of his intervention at that point.
18. [18]
    That was not the end of his Honour’s interventions in the evidence.  At the end of the learned police prosecutor’s cross-examination^[1], his Honour, in effect, cross-examined LJV as to his credit in respect of his evidence that he needed to see a solicitor to prepare for court the following day.  His Honour seemed to do that by reference to matters his Honour was aware of in in respect of previous mentions.  As Mr Ygoa-McKeown, who appeared for the appellant, pointed out, that went close to making his Honour a witness in the proceedings.
19. [19]
    It certainly went, in my respectful view, beyond the role appropriate for a trial judge in a case where both parties are represented.  The Court of Appeal in R v Clancy [2022] QCA 162 has recently had cause to reflect on the principles applicable when a trial judge intervenes in evidence of witnesses.  The court summarised the principles which I set out in this judgment. [Footnotes omitted]

[16] Excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice.

[17] When an appellant’s contention is that the conduct of the presiding judicial officer has meant that the trial was unfair, the test to be applied is whether the impugned behaviour has created a real danger that the trial was unfair.

[18] A critical element of whether a trial is unfair is whether the appellant had a proper opportunity to advance his or her defence to the charges. Whether a trial is unfair must be evaluated in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions.

[19] In Cook v The Queen, the Supreme Court of Victoria cited with approval the following observations of Purchas LJ in R v Matthews:

“To summarise these authorities the following propositions appear to emerge: (1) Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive; (2) The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either on the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf; (3) In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is proposed ultimately for this Court is ‘might the case for the defendant as presented to the jury of the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing up of the judge, be such that the jury’s verdict might be unsafe?’ In the presence of conditions in which this Court has been alerted in the manner to which we have referred, it appears to us that if there is a possibility of a denial of justice then this Court ought to intervene.”

[20] Excessive intervention by a trial judge may give rise to unfairness in a number of different ways. In R v Mawson, in a passage cited with approval in Cook, the Court gave four examples. First, the parties’ opportunity of putting their defence fully and fairly to the jury may be impaired. Secondly, witnesses may be prevented from telling the full account of facts as they understand them to be. Thirdly, the trial judge might be identified as being with one or other party to the litigation. Fourthly, the jury might be led to believe from the judge’s intervention that the judge is convinced of the guilt of the accused person or that the defence case is hollow.

[21] Other examples may be found in the following observations of the English Court of Appeal in R v Sharp, which were adopted by the Court in Cook:

“When a judge intervenes in the course of examination, or particularly cross-examination, a number of problems can arise depending on the frequency and manner of the interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or cross-examination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness’s conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel’s task may be seriously hampered. In a case of any complexity cross-examination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate’s art, because a competent cross examination is designed to weaken or destroy the opponent’s case and to gain support for the client’s case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial. In general, when a cross-examination is being conducted by competent counsel a judge should not intervene, save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions; still less can it be said in such cases that there is an irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge’s conduct amounts to a material irregularity.”

[22] Another concern that may arise from frequent interjections by a trial judge is the risk that the interjections might undermine the credibility of defence counsel in the eyes of the jury and may do so in a way that by inference undermines the credibility of the defence case. See, for example, Piccolotto v The Queen and Percival v The Queen. In the latter case, the Court observed that it was not the trial judge’s role to comment on counsel’s competence in a way which diminished her credibility, and possibly the credibility of the defence case in the eyes of the jury, as such comments have the obvious potential to unfairly prejudice the appellant.

[23] The Court in Cook also adopted the following observations of the New South Wales Court of Criminal Appeal in R v Lars, suggesting that a trial judge should exercise circumspection before intervening in the examination of witnesses

[24] A judge is entitled to intervene in the questioning of a witness, notwithstanding the absence of objection by counsel for the other party, if there is good reason for such intervention. Among the reasons in which intervention would be appropriate are:

1. where the question is likely, because of latent or patent ambiguity for other reasons, to illicit an answer which may be misleading;
2. where the form of the question is such that it involves unfairness to the witness;
3. where a question is offensive or otherwise calculated to do no more than unfairly prejudice the witness in the eyes of the jury; and
4. where the asking of the question breaches an earlier ruling.

However, a trial judge should hesitate to intervene merely because the judge is of the view that a question calls for an answer which is irrelevant or otherwise inadmissible. That is because parties may make use of that evidence for a purpose not readily apparent to the judge or it may otherwise facilitate the smooth running of the trial.

20. [20]
    Of particular interest in this case is the observation in R v Mawson (1967) VR 205^[2] that, “The trial judge might be identified as being with one or other party to the litigation.” That is a problem that arises whether there is a jury or not.  It is clearly a problem that arises here in respect of both of his Honour’s interventions, in the examination of the aggrieved and in the cross-examination of the appellant. 
21. [21]
    I say, respectfully, those interventions were such that I would not be willing to try to make up my own mind on condition 1 because the trial record is unfair and does not represent a fair trial of this issue.  I would have been inclined to think that the text did breach condition 1 as being objectively offensive in the context of a relationship between the parties. However, I deliberately do not make that finding because I do not think this Court should be making any findings on condition 1, given the unfairness in the trial record. 
22. [22]
    However, as the conviction is properly sustained in respect of the breach of condition 5, which involved the application of a legal standard to uncontested evidence, the conviction can be upheld despite his Honour’s wrongful interventions.  What that does mean, however, is that the breach that has been established is what might be thought to be somewhat less serious than that found by his Honour.
23. [23]
    There is also a sentence appeal.  His Honour imposed a period of one month imprisonment to be suspended after serving five days.  That occurred in circumstances where LJV had spent five days that were declarable, in the watch-house presumably, in respect of this offence.  The learned prosecutor rightly concedes that a custodial sentence for the breach identified (even ignoring the success on this appeal on the condition 1 point) was manifestly excessive or was excessive in the language of the Justices Act 1886, and I agree.  It therefore falls to me to impose a sentence. 
24. [24]
    Taking into account the matters set out in Mr Ygoa-McKeown’s outline^[3] and in particular, that LJV served five days imprisonment, in my view, even if the text was offensive, it was at the very modest end of that scale.  It seems to me that a just sentence is that I should convict LJV of the breach and not further punish.  I consider that he has been on probation.  For some considerable time, there has been no further breaches and that in itself is a compelling consideration. 
25. [25]
    The question is whether I should record a conviction.  No conviction was recorded for the breach of 26 August 2022. As I say, I do not have the particulars before me, but it is hard to imagine that it was a less serious breach than the one before me today.  Given the matters in Mr Ygoa-McKeown’s outline of argument going to the considerations in paragraph 12 and the fact that no previous conviction has been recorded, I order that no conviction be recorded in respect of this offence as well.
26. [26]
    For those reasons, the appeal against conviction is dismissed.  The appeal against sentence is upheld.  The sentence imposed by the learned Magistrate be set aside and in its place the following sentence be imposed, that LJV be convicted and not further punished and that no conviction be recorded.