CF v KT[2022] QDC 37

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant, CF,^[1] appeals pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (DV Act), against a protection order under s 37 of that Act made against him by a magistrate.  The order was for the benefit of the respondent, KT, and her two children (whose father is the appellant).
2. [2]
   CF was self-represented in this appeal but represented by a solicitor in the Magistrates’ Court hearing.  KT was represented by counsel in this appeal and by a solicitor below. 
3. [3]
   For the following reasons, the appeal should be allowed and the magistrate’s order should be set aside.  The matter should be remitted to the Magistrates Court for a fresh hearing before a different magistrate.
4. [4]
   The appellant’s notice of appeal is somewhat discursive, but it is possible to glean the following grounds:^[2]

   1. (a)
      the magistrate made a number of factual findings that are not supported by the evidence;
   2. (b)
      the appellant was denied procedural fairness, in that he was not permitted to inspect and copy subpoenaed documents until the morning of the hearing;
   3. (c)
      the magistrate failed to give adequate reasons for her decision;
   4. (d)
      the magistrate failed to take into account relevant considerations; and
   5. (e)
      the decision was affected by apprehended bias on the part of the magistrate.
5. [5]
   The appellant seeks orders allowing the appeal and setting aside the magistrate’s decision.  He did not seek an order that the matter be remitted to the Magistrates Court for a fresh hearing.
6. [6]
   In an appeal of this nature, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”^[3]  In considering the appeal, it is important to pay regard to the advantage of the magistrate in witnessing the evidence being given and the appellate court must attach due weight to the views adopted by the magistrate.^[4]
7. [7]
   The respondent conceded that the magistrate made a number of findings of fact that were not supported by the evidence and that were relied upon by her Honour in arriving at her decision.  The respondent therefore conceded that the appeal should succeed and her Honour’s decision should be set aside.
8. [8]
   I agree.  The magistrate made some important findings of fact for which there was no evidence.  Given the respondent’s concession, it is unnecessary to set out details of those findings and the evidence.  The erroneous findings do appear to have had a material bearing on her decision.  Her Honour therefore erred in material ways and the order should be set aside.
9. [9]
   That being the case, it is unnecessary to consider the other grounds of appeal.
10. [10]
    Both parties submitted that, if this Court sets aside the decision, it should not remit the proceeding to the Magistrates Court for a fresh hearing, but should itself consider the issues and the evidence, make such findings as it considers appropriate including, where necessary, findings of credit and determine the application afresh.  The parties submitted that it is open to this Court to make findings of credit and of fact, having regard to the documentary evidence and the transcript of the proceeding below.
11. [11]
    The real question is whether this court should now substitute its decision for that of the magistrate or should remit the matter for a fresh hearing.
12. [12]
    The trial in the Magistrates Court involved considerable evidence, both by affidavit and orally (the latter principally in cross-examination), about a number of incidents between CF and KT over six or seven years.  These included incidents in which the police had been called and had made written reports that were placed in evidence.  The parties (but particularly the appellant) sought, in this court, to contrast or compare those reports with the parties’ evidence about the incidents.
13. [13]
    The magistrate formed the views that:

    1. (a)
       CF was not forthright or honest in giving his evidence, he showed little insight into, or remorse for, the consequences of his actions, he denied KT’s allegations of domestic violence on his part without explaining his denials and, generally, he was not a credible witness;
    2. (b)
       in contrast, KT was a “quietly spoken, modest and intelligent woman with considerable personal resilience,” who was influenced in her relationship due to her family’s cultural and religious background and who was honest and detailed in her evidence.
14. [14]
    The magistrate therefore assessed the credit of each of the parties and concluded in favour of KT’s credit and contrary to that of CF.  That assessment was important to her findings of fact and her ultimate conclusion.
15. [15]
    In his submissions in this appeal, CF compared a number of statements that had been made by KT about several incidents and that, he submitted, were inconsistent with each other and with her evidence in court.  He submitted that the inconsistencies help to demonstrate that her evidence was not reliable and it should not be accepted by this court.
16. [16]
    Assessments of credit have long been the subject of judicial discussion in appellate courts.  Those courts, in attempting to assess the credit of witnesses, are almost always at a disadvantage in not having the same experience of the evidence or the ability to observe the witnesses as they gave evidence.  An appellate court is therefore restrained in reversing a finding of fact that was influenced by credit.^[5]  It is rare for it to do so.
17. [17]
    This restraint is reflected in the approach described by the High Court and summarised in the headnote, in Devries v Australian National Railways Commission:^[6]

A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding.  If the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

18. [18]
    I have considered carefully the parties’ submissions about the appropriate course, as well as their detailed submissions about the evidence below and the additional evidence that CF tendered by leave in this appeal.
19. [19]
    Despite the parties’ urgings and their detailed submissions, I am not satisfied that I am in a position to determine the facts based on the documentary record of the evidence below and the additional evidence that I permitted CF to tender at the hearing of this appeal.  The credit of each party is a very important issue.  The magistrate’s view of their credit was particularly important to her decision.  I am not satisfied that I can determine that issue in particular, let alone the relevant facts, simply by reading the transcript and comparing it with the other evidence.  This is especially so where many of the alleged inconsistencies in KT’s evidence and between that evidence and her prior statements, that CF now urges me to take into account in rejecting her evidence and preferring his, were not put to KT in cross-examination.
20. [20]
    I shall therefore allow the appeal, set aside the decision of the magistrate and remit the proceeding to the Magistrates Court to be heard and determined by another magistrate.