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GJC v Commissioner of Police[2024] QDC 120

GJC v Commissioner of Police[2024] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

GJC v Commissioner of Police [2024] QDC 120

PARTIES:

GJC

(Appellant)

v

COMMISSIONER OF POLICE

(First Respondent)

FILE NO/S:

BD508/24

DIVISION:

Appellate

DELIVERED ON:

19 July 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2024

JUDGE:

Allen KC, DCJ

ORDERS:

  1. The appeal is dismissed.
  2. The appellant pat the first respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – appeal against decision of Magistrate to make protection order – nature of appeal by rehearing – whether Magistrate erred in finding that a protection order was necessary or desirable to protect the aggrieved from domestic violence

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 37, s 168, s 169

ACP v McAulliffe [2017] QDC 294

FAJ v FJH [2024] QDC 23

GKE v EUT [2014] QDC 248

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

House v The King (1936) 55 CLR 499

MDE v MLG and Queensland Police Service [2015] QDC 151

Warren v Coombes and Another (1979) 142 CLR 531

COUNSEL:

Mr A J Kimmins for the appellant

Ms K Morrison for the first respondent

SOLICITORS:

Philip Tull Solicitors for the appellant

QPS Legal Services for the first respondent

  1. [1]
    This is an appeal against the decision of a Magistrate in the Magistrates Court at Sandgate to grant an application by the first respondent Commissioner of Police and make a domestic violence order against the appellant for the benefit of the second respondent.
  1. [2]
    The appellant was the respondent to the application in the Magistrates Court and the second respondent, the aggrieved. For ease of understanding, I will adopt the nomenclature of the parties in the Magistrates Court proceedings and refer to the appellant as the respondent, and the second respondent as the aggrieved.
  1. [3]
    The background to the Magistrates Court proceedings is usefully summarised in the outline of submissions on behalf of the respondent:
  1. 9.
    The Appellate (sic) and the Respondent met in about April 2021 through an online dating application. They dated for a period, with the relationship cooling in September 2021. However, the relationship recommenced in December, and they were engaged in February 2022.
  1. 10.
    The relationship began to sour in May 2022. From 18 May to 24 September 2022, the Appellant sent 16 emails to the Respondent and one to a person he believed to be a concurrent romantic partner of the Aggrieved.
  1. 11.
    The Respondent made a complaint to the police of domestic violence to the police on 2 October 2022. The police subsequently made an application for a domestic violence order.
  1. 12.
    A temporary domestic violence order was made by the court at the first mention on 18 October 2022 and was extended from time to time. The hearing of the application took place over two days, 31 May and 20 September 2023. The Applicant for the order relied on affidavits from three witnesses; the Respondent to this appeal and the two police officers who met with her on 2 October 2022. The Applicant (sic) relied on his own affidavit. All of the deponents were cross-examined.
  1. 13.
    The Magistrate handed down a decision on 29 January 2024.
  1. [4]
    The learned Magistrate published written reasons for his decision to grant the application and make a domestic violence order against the respondent for the benefit of the aggrieved.
  1. [5]
    The notice of appeal asserts grounds as following:
  1. 1.
    The Magistrate erred in fact and law in concluding that the evidence adduced at the hearing was sufficient to establish that:
  1. a.
    The Appellant had committed domestic violence against the Second Respondent; and/or
  1. b.
    The making of a protection order was necessary or desirable.
  1. [6]
    The respondent has abandoned ground of appeal a. and only pursues ground of appeal b.
  1. [7]
    The reasons of the learned Magistrate relevantly included the following:
  1. [24]
    I must apply the principles in section 4(1) of the DFVPA. The safety, protection and wellbeing of persons who experience domestic violence is therefore paramount.
  1. [25]
    There are further matters in section 4(2) that I must apply. Characteristics of people that make them particularly vulnerable to domestic violence should be taken into account (e.g. women, children etc.). Perpetrators of domestic violence should be held accountable and, if possible, provided with an opportunity to change.
  1. [26]
    Section 37 of the Act sets out the requisite elements of which I must be satisfied before I can turn to considering the exercise of my discretion.
  1. [27]
    In assessing whether it is necessary or desirable to make an order, I must apply the principles in section 4 (notably the ‘most in need’, ‘vulnerability’ and ‘accountability’ principles).
  1. [28]
    I note the exposition of the ‘necessary or desirable’ test by judge Morezone. As such I must:
  1. (a)
    Assess the risk of future domestic violence between the parties if I do not make an Order.
  1. (b)
    Assess the need to protect the Aggrieved from that domestic violence in the absence of an Order.
  1. (c)
    Consider whether imposing a Domestic Violence Order is necessary or desirable considering the evidence and principles in section 4; and
  1. (d)
    If the court is satisfied of the other pre-conditions (i.e. relevant relationship, acts of domestic violence), the Court may exercise its discretion to make an order necessary or desirable to protect the aggrieved from domestic violence.
  1. [29]
    There must be a proper evidentiary basis for concluding that there is a risk of Domestic Violence. The matter does not depend simply upon a mere possibility of such a thing occurring in the future, or the mere fact that the Applicant for the order is concerned that such a thing may happen in the future. The risk must be sufficiently significant to make it necessary or desirable to make an Order.
  1. …
  1. Onus of proof
  1. [49]
    The onus of proof is on the applicant to establish on the balance of probabilities the matters set out in Section 37 of the DFVPA.
  1. [50]
    By his Outline, Mr Senior referred to the principles in Briginshaw v Briginshaw and implicitly to the practical consequences of the making of an order to the Respondent. Where relevant, Briginshaw is applied, I thus note:
  1. “… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be inexact proofs, indefinite testimony or indirect references”.
  1. (footnotes omitted)
  1. [8]
    The learned Magistrate found that the acts of domestic violence comprised the respondent sending eight emails or text messages to the aggrieved during the course of four days: 9 July 2022, 10 July 2022, 19 August 2022 and 24 September 2022. The content of those messages is helpfully set out in exhibit 1 on the appeal, Closing submissions for Police Prosecutions, appearing for the applicant police officer, at page 5 from 09/07/2022, 7.04pm, to page 6, 10/07/2022, 10.41am.
  1. [9]
    The learned Magistrate found that those communications:
  1. [92]
    ...constitute emotional and psychological abuse in the form of behaviour that harassed and offended the Aggrieved.
  1. [93]
    I consider that the time period extends to at least September and possibly November 2022, nothing the contact initiated by the Respondent in bad faith with “Dan”.
  1. [94]
    In these emails, the Respondent threatened to escalate to a level the Aggrieved would not understand and to be in contact with Dan. He pressured the Aggrieved to tell Dan about him or he would. He effectively called the Aggrieved a prostitute, suggested that she was cheating on him with multiple partners, demanded an apology and the ring back or he would become relentless and she would be broke. He called the Aggrieved a liar, a dishonest person and applauded her ex-husband for leaving her. He threatened to speak to her former husband for a criminal investigation. He called her scum, an absolute waste of oxygen, a low life, someone that lied to her children. He described her as the most disgraceful person he ever met. He wished her all the unhappiness in the world.
  1. [95]
    He stated that he had discovered a great deal about her from an unnamed friend that knew her very well. He gave no name.
  1. [96]
    Mr Senior submitted that there were no abusive messages by the Respondent towards the Aggrieved. That submission must be and is rejected. These comments were intended to insult her. They were offensive. They were calculated to wound and annoy. They were corrosive of her friendships and relationships. They were meant to unsettle her. It was repeated conduct that was annoying and distressing. In a different jurisdiction, some of the emails could have amounted to criminal behaviour under the Crimes Act.
  1. [97]
    The impact on the Aggrieved is obvious. She told the Respondent to stop contacting her. In due course she made a complaint to Police.
  1. [98]
    Items 37(b) and 42 of the Respondents Affidavit also revealed that the Respondent made good on his threat to contact her former husband. He also contacted Dan. He texted to Dan - it seems on multiple occasions - the disparaging, offensive and abusive text that he sent to the Aggrieved on 9.07.2022. He admitted speaking to Dan as late as November 2022. That is, at least, concerning as a TPO was made on 18.10.2022.
  1. [99]
    This occurred after the relationship ended. He had no good reason to contact either person. As a legal professional he knew that he could pursue legal remedies about alleged unreturned monies and the ring if he chose. Instead, he sought to smear, damage and undermine. He well knew that both persons would relay his contact back to the Aggrieved. That was the point of it.
  1. [100]
    I reject the Respondents evidence that he was merely gathering information in his contact with Dan or the ex-husband. The inclusion in his initial email to Dan of his offensive email to the Aggrieved shreds that tendentious construction. In this way, his behaviour was targeted at and focused on the Aggrieved. In that sense, it was behaviour by him towards her. It too was harassing. It involved the implementation of the threats made to the Aggrieved. And the Aggrieved was aware of these approaches.
  1. [101]
    Even if I am wrong in finding these communications with Dan and her former husband were harassing and threatening, they evidence the Respondent’s entitled and vindictive attitude to the Aggrieved after the relationship ended and are most relevant to the issue of discretion.
  1. (footnotes omitted)
  1. [10]
    As noted earlier, the finding by the learned Magistrate that there were acts of domestic violence is no longer challenged on appeal.
  1. [11]
    With respect to the matter in contention on appeal, the learned Magistrate provided reasons as follows:
  1. Discretion - Section 37
  1. [107]
    The risk of future domestic violence between the parties in the absence of any order being made is significant.
  1. [108]
    It is true that my findings amount to harassing, offensive and threatening behaviour - chiefly by emails and texts- over a short period of time. Moreover, the parties do not have children or a pool of shared assets. Further the relationship too occurred over a relatively short period of time. The parties are separated by significant distance. Most importantly, the temporary protection order was never breached in near 16 months. Of course, that is equivocal in that it could simply confirm the need for the order.
  1. However, the Respondent was prepared to make a statement to Police. Apparently, the investigation awaits the resolution of this matter. The Respondent also gave unconvincing and guarded evidence about the prospect of civil proceedings to recover monies that he says are owing and a wedding ring.
  1. [109]
    Under cross-examination, the Respondent, taken to the ’Prostitution’ email, initially said:
  1. “I was going to start civil action for the ring....I haven’t done that because of these proceedings. I’m entitled to do that though”.
  1. [110]
    Plainly the Respondent intended to start, a civil action against the Aggrieved though stopped by these proceedings and, presumably, the TPO.
  1. [111]
    Later in re-examination he offered:
  1. “However, my outlook on a lot of things has changed, and I put [the aggrieved] behind me because I think there’s better things to do. She’s done the wrong thing. She was - she was dishonest. But at the end of the day, I don’t believe I have any interest in pursuing her on that”.
  1. [112]
    Beliefs can be malleable and fluid. The respondent is a practising Barrister, a professional wordsmith. These words are cagey, allow wiggle room and change of position. Moreover, it is not evident in these proceedings that the Respondent has changed in any way that reduces the risk of future domestic violence.
  1. [113]
    Obviously, it is lawful for the Respondent to pursue civil proceedings if he wishes though the current TPO would restrain that. There is a prospect, not fanciful or remote in my view, that he will commence proceedings and that this will resurrect his demonstrable bile to the Aggrieved. That would enliven the risk of further unwise and abusive communications by the Respondent.
  1. …
  1. [115]
    I did not detect any remorse by the Respondent for his behaviour towards the Aggrieved. There is no evidence that he completed any counselling, rehabilitative or therapeutic program despite an abundance of time to do so. In the Affidavit that he drew while representing himself, he described the Aggrieved as “... really a confidence trickster” and claimed that he was “.... the victim of fraudulent behaviour”.
  1. He also annexed communications to his material that the Aggrieved was a prostitute but despite having some time before the matter went to trial to reflect, he renewed that claim in Court but did not call the source of this information nor did he even apply for a subpoena to do so.
  1. [116]
    With feigned magnanimity he testified:
  1. “I have no difficulty, if in [the aggrieved]’s past, she’d been involved in the sex working industry. I have no issue with that. But the propensity of character-that’s -that’s come through from the time I’ve met her to the relationship ending. I don’t know even if during the relationship she was working as a sex worker during that time. I-I--I don’t hold anything against her if she was… ….”
  1. [117]
    That amounts to a pompous, unedifying resort by the Respondent to innuendo and a continued preparedness to besmirch the Aggrieved.
  1. [118]
    Indeed, Mr Senior asked whether looking back on his relationship with the Aggrieved he still felt comfortable with the use of the word ‘prostitution’. The response?    “ 1-look, I realise that I’m a barrister -at-law and I don’t want to appear clever, but I don’t believe I was ever in a relationship, but I am certain that [the aggrieved] never believed that she was in a relationship. I believe that she was in a romance scam.”
  1. [119]
    It was an opportunity for the Respondent to demonstrate remorse or insight. His Lawyer took him carefully to the point....and the Respondent relied on a quibble to avoid the question.
  1. [120]
    His oblivious insistence that he was a victim dovetailed with the nature of his heightened language to the Aggrieved. That language was hectoring, entitled and abusive. It reflected a complete absence of control from a practising Lawyer who should have known the dangerous waters in which he chose to swim. Even if I am wrong and there is no chance of the Respondent starting civil proceedings, the nature of the language used by a man who by his profession alone, should well have known better is a weighty factor in favour of an Order when viewed with his lack of insight and remorse.
  1. As to the need for protection, the Aggrieved is a vulnerable person being a woman. She is single, a working nurse. She has children that live with her and her former husband. She experienced an erratic relationship with the Respondent with the highs of engagement and the lows of estrangement. She was confronted by vengeful and hurtful messages. The Respondent texted and emailed prolifically. He was prepared to escalate his campaign against the Aggrieved to her ex-husband and a person Dan in a cynical attempt to undermine her. While significantly restricted to electronic communication, the domestic violence that I found perpetrated by the Respondent is so easy to do in an age of ubiquitous personal digital devices. We are all able to reach out so easily to others to help or harm. It is the boon and curse of technology.
  1. [121]
    The asserted independence of the Aggrieved does not militate against making an Order. A person does not have to be terrified or cowed to receive protection. The Aggrieved is free of the relationship. There is no prospect of it resuming.
  1. [122]
    I do contemplate the impact of making an order upon the Respondents career. However, no evidence was led on that point. Moreover, the Respondent apparently is already bound by a domestic violence order made on the application of his former wife.
  1. [123]
    It does not seem that there was any impact upon his career from it or, indeed, the current TPO though Mr Senior volunteered that the Legal Services Commission are aware of these proceedings.
  1. [124]
    All in all, I am satisfied that a Protection Order is necessary and desirable. As a matter of discretion, I am also satisfied that I should make a Protection Order in favour of the Aggrieved.
  1. (footnotes omitted)
  1. [12]
    Relevant provisions of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) provide as follows:
  1. 3
    Main objects
  1. (1)
    The main objects of this Act are—
  1. (a)
    to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
  1. (b)
    to prevent or reduce domestic violence and the exposure of children to domestic violence; and
  1. (c)
    to ensure that people who commit domestic violence are held accountable for their actions.
  1. (2)
    The objects are to be achieved mainly by—
  1. (a)
    allowing a court to make a domestic violence order to provide protection against further domestic violence; and
  1. (b)
    giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
  1. (c)
    imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.
  1. 4
    Principles for administering Act
  1. (1)
    This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  1. (2)
    Subject to subsection (1), this Act is also to be administered under the following principles—
  1. (a)
    people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
  1. (b)
    to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
  1. (c)
    perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
  1. (d)
    if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
  1. Examples of people who may be particularly vulnerable to domestic violence—
  • women
  • children
  • Aboriginal peoples and Torres Strait Islander peoples
  • people from a culturally or linguistically diverse background
  • people with disability
  • people who are lesbian, gay, bisexual, transgender or intersex
  • elderly people
  1. 37
    When court may make protection order
  1. (1)
    A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—
  1. (a)
    a relevant relationship exists between the aggrieved and the respondent; and
  1. (b)
    the respondent has committed domestic violence against the aggrieved; and
  1. …
  1. (c)
    the protection order is necessary or desirable to protect the aggrieved from domestic violence.
  1. (2)
    In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—
  1. (a)
    the court must consider—
  1. (i)
    the principles mentioned in section 4; and
  1. (ii)
    if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and
  1. (iii)
    the respondent’s criminal history and domestic violence history filed in or given to the court under section 36A; and
  1. (b)
    if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order.
  1. (3)
    However, the court must not refuse to make a protection order merely because the respondent has complied with an intervention order previously made against the respondent.
  1. (4)
    If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.
  1. (5)
    If the court decides to make a protection order against the respondent, the court must consider the appropriate period for which the order is to continue in force.
  1. [13]
    There were differing submissions from the parties as to the nature of the appeal.
  1. [14]
    The Act provides as follows:
  1. 168
    Hearing procedures
  1. (1)
    An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
  1. (2)
    However, the appellate court may order that the appeal be heard afresh, in whole or part.
  1. 169
    Powers of appellate court
  1. (1)
    In deciding an appeal, the appellate court may—
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    vary the decision appealed against; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.
  1. (2)
    The decision of the appellate court upon an appeal shall be final and conclusive.
  1. [15]
    Neither party has sought to place additional evidence before this court or an order that the appeal be heard afresh.
  1. [16]
    The nature of an appeal under section 168(1) is one of rehearing by the appellate court.
  1. [17]
    It has been held by Judges of this court that a decision, such as the one under appeal, involves an exercise of discretion such that error of the kind explained in House v The King[1] must be identified.[2] 
  1. [18]
    The respondent referred to the recent decision of his Honour Judge Long SC in FAJ v FJH[3], where his Honour expressed doubt as to whether a determination pursuant to section 37 of the Act does involve any exercise of discretion to which the principles discussed in House v The King are applicable, stating:
  1. Rather and as recently discussed by way of distinction, in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore[4], there may ultimately be a requirement of evaluative judgment attracting the “correctness standard” identified in Warren v Coombes[5], as the applicable standard for appellate review.
  1. [19]
    His Honour cited the judgment of Kiefel CJ, Gageler and Jagot JJ in GLJ at [16].
  1. [20]
    I agree with those Judges of this Court who have concluded that the terms of section 37 of the Act do provide for a discretionary judgment as to whether the preconditions for making a domestic violence order are met, and the further discretion as to whether such an order should be made. In so far as Judge Long SC may be expressing a different view, I respectfully disagree.
  1. [21]
    What is not in contention, though, is that it is necessary in an appeal by way of rehearing for an appellant to identify some error of law or fact.[6] Respect must be afforded to the decision of the Magistrate, bearing in mind any advantage the Magistrate had in seeing and hearing witnesses.[7] It will become apparent, when examining the reasons of the learned Magistrate, that that was a significant advantage in the circumstances of this case. 
  1. [22]
    Counsel for the respondent engaged in a most thorough and painstaking analysis of the learned Magistrate’s reasons in submitting that he made errors of fact and law. Barely a word of the relevant reasons was left unexamined and unparsed in a robust attack upon his Honour’s reasoning.
  1. [23]
    In the respondent’s outline of submissions, with reference to paragraph [28] of the reasons for decision, it was submitted as follows:
  1. 22.
    After expressing the ‘test’, the Magistrate indicated that he ‘must’, in effect, follow it. However, this was an error. As Long KC DCJ noted, ‘I respectfully, do not share the view that this test is appropriately to be applied as rigidly or as structured in the observations made in MDE v MLG’; the approach is more nuanced.
  1. (footnotes omitted)
  1. [24]
    It was not contended by the respondent that the learned Magistrate erred in following such a test, but rather that he erred in stating that he “must” follow it. The semantic and pernickety nature of such a submission is demonstrated by the concession that there would have been no error for the learned Magistrate to state that he “would” follow such test. If there was an error in such regard, it was not a material error that would ground any interference with the ultimate decision by the learned Magistrate.
  1. [25]
    The main thrust of the respondent’s attack upon the learned Magistrate’s reasons was addressed to paragraphs [107] to [124] of the reasons.
  1. [26]
    With respect to paragraph [107], the learned Magistrate was criticised by prefacing his reasons as to whether or not it was necessary or desirable to make a domestic violence order with a conclusion that the risk of future domestic violence between the parties in the absence of an order was “significant”. It is not unusual that a decision-maker might express a conclusion before elucidating reasons for such conclusion, and I discern no error by the learned Magistrate so doing.
  1. [27]
    With respect to paragraph [108] and the statement, “Most importantly, the temporary protection order was never breached in near 16 months. Of course, that is equivocal in that it could simply confirm the need for the order”, it was submitted that the learned Magistrate failed to have appropriate regard to the compliance with the temporary protection order over a period of 16 months in considering the exercise of his discretion. It seems to me that the quoted statement by the learned Magistrate is consistent with the considerations in section 37(2)(b) of the Act that “the court may consider the respondent’s compliance with the order” (emphasis added) and the terms of section 37(3) of the Act.  I do not discern any error of law or fact by reason of such statement.
  1. [28]
    It was submitted, with respect to the reasons of the Magistrate from the second paragraph of paragraph [108] to paragraph [113], that the conclusion in paragraph [113] that there was a prospect that the respondent would commence proceedings against the aggrieved and that that would resurrect his bile to the aggrieved and enliven the risk of further unwise and abusive communications was devoid of a proper evidential foundation given those matters noted by the learned Magistrate in paragraphs [109] to [111]. It was submitted that the evidence of the respondent quoted at paragraph [111] could only lead to a conclusion that he had no further interest in pursuing civil proceedings against the aggrieved, and that any prospect of such proceedings was purely hypothetical and speculative such that the learned Magistrate’s conclusion that there was a real prospect of such proceedings in the future was unreasonable. The analysis of the evidence was aided by the learned Magistrate being able to consider the evidence of the respondent whilst he was cross-examined for some hours on 20 September 2023. I do not accept that such a conclusion was not reasonably open to the learned Magistrate, and do not find any error of fact as a consequence.
  1. [29]
    With respect to the reasons, including paragraphs [115], [119] and [120], it was submitted that the learned Magistrate reversed the onus of proof by referring to the absence of any evidence from the respondent as to steps taken to address his behaviour and demonstrate remorse or insight. As earlier noted, the learned Magistrate was quite aware of the onus of proof upon the Briginshaw standard, and I do not understand the remarks referred to indicate a reversal of that onus on the ultimate question as to whether or not a domestic violence order was necessary or desirable.
  1. [30]
    Further, I do not accept the submission that any lack of remorse or insight was an irrelevant consideration in the exercise of discretion. It was clearly relevant to the future risk of the respondent engaging in further similar acts of domestic violence against the aggrieved.
  1. [31]
    With respect to the tenor of the findings by the learned Magistrate critical of the respondent throughout this part of the reasons, it was submitted that such reasons were, in effect, intemperate and lacked the requisite unbiased, dispassionate consideration of whether an order was necessary or desirable. It is clear that the learned Magistrate formed an adverse view as to the character of the respondent but, given the matters under consideration, it was open to his Honour to form and express such views in the course of considering whether there was such a risk of future domestic violence that the making of an order was necessary or desirable. I do not consider that the reasons in this regard demonstrate any error of fact or law.
  1. [32]
    Likewise, I do not accept that the matters expressed in paragraphs [116] and [117] are irrelevant. They were relevant to the continuing animus of the respondent towards the aggrieved and thus of some relevance to future risk.
  1. [33]
    Particular criticism is made of the last sentence in the first paragraph [120], but such statement must be seen in the context of an analysis by the learned Magistrate of the particular risk of the respondent in engaging in future acts of domestic violence.
  1. [34]
    As to the second paragraph of paragraph [120], particular criticism is made of the first sentence. Regarded in isolation, such statement could be arguably a misstatement of law if read as meaning that every woman is vulnerable to domestic violence: contrast the terms of section 4(2)(d) of the Act, which provides that women may be particularly vulnerable to domestic violence. However, such sentence must be read in the context of what follows. The learned Magistrate clearly did not conclude that the aggrieved was vulnerable merely because she was a woman, but went on to state other factors relevant to his finding of vulnerability. Such finding was reasonably open on the evidence, and I do not discern any error of law or fact in the first sentence of that paragraph read in proper context.
  1. [35]
    Criticism was made of the terms of paragraph [121], but I discern no error in fact or law in such part of the reasons.
  1. [36]
    It is clear that the learned Magistrate weighed up those factors, both supporting and militating against the making of a protection order, in concluding that such an order was necessary and desirable and that, in the exercise of discretion, such an order should be made.
  1. [37]
    I am not satisfied that the learned Magistrate failed to take into account any relevant consideration, or took into account any irrelevant consideration. I am not satisfied that there was any material error of fact or law. Having given due respect to the advantage enjoyed by the learned Magistrate in making his decision, I am not satisfied that such decision was wrong.
  1. [38]
    No error of fact or law or discretion having been established, the appeal must be dismissed.

Footnotes

[1](1936) 55 CLR 499 at 505.

[2]ACP v McAulliffe [2017] QDC 294 at [12], [69]-[73]; MDE v MLG and Queensland Police Service [2015] QDC 151 at [80]-[81]; GKE v EUT [2014] QDC 248 at [41].

[3][2024] QDC 23 at [10].

[4][2023] HCA 32.

[5](1979) 142 CLR 531 at 552.

[6]HBY v WBI and another [2020] QDC 81 at [18]; MDE v MLG and Queensland Police Service [2015] QDC 151 at [16].

[7]GKE v EUT [2014] QDC 248 at [61]; Warren v Coombes (1979) 142 CLR 531 at 552. 

Close

Editorial Notes

  • Published Case Name:

    GJC v Commissioner of Police

  • Shortened Case Name:

    GJC v Commissioner of Police

  • MNC:

    [2024] QDC 120

  • Court:

    QDC

  • Judge(s):

    Allen KC, DCJ

  • Date:

    19 Jul 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ACP v McAulliffe [2017] QDC 294
2 citations
Jump To
Cite 1 - [2017] QDC 294
Cite 2 - [2017] QDC 294
FAJ v FJH [2024] QDC 23
2 citations
Jump To
Cite 1 - [2024] QDC 23
Cite 2 - [2024] QDC 23
GKE v EUT [2014] QDC 248
3 citations
Jump To
Cite 1 - [2014] QDC 248
Cite 2 - [2014] QDC 248
Cite 3 - [2014] QDC 248
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
2 citations
Jump To
Cite 1 - [2023] HCA 32
Cite 2 - [2023] HCA 32
HBY v LAP [2020] QDC 81
1 citation
Jump To
Cite 1 - [2020] QDC 81
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
MDE v MLG [2015] QDC 151
3 citations
Jump To
Cite 1 - [2015] QDC 151
Cite 2 - [2015] QDC 151
Cite 3 - [2015] QDC 151
Warren v Coombes (1979) 142 CLR 531
3 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531
Cite 3 - (1979) 142 CLR 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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