HEG v Queensland Police Service & UHB
[2024] QDC 134
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- Unreported Judgment
- HEG v Queensland Police Service & UHB[2024] QDC 134
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HEG v Queensland Police Service & UHB[2024] QDC 134
HEG v Queensland Police Service & UHB[2024] QDC 134
DISTRICT COURT OF QUEENSLAND
CITATION: | HEG v Queensland Police Service & UHB [2024] QDC 134 |
PARTIES: | HEG (appellant) v QUEENSLAND POLICE SERVICE (first respondent) and UHB (second respondent) |
FILE NO: | D4/29 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Emerald Magistrates Court |
DELIVERED ON: | 29 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 August 2024 |
JUDGE: | Kent KC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL – Domestic Violence – Where a protection order was made against the appellant – Where the application for protection order was issued as a Police Protection Notice by the first respondent – Where a hearing proceeded in the Magistrates Court – Where there was an audio recording of alleged domestic violence incidents – Whether the Magistrate erred in find that domestic violence had occurred – Where the second respondent was cross-examined by the appellant’s representative – Whether the second respondent was a credible witness – Whether the Magistrate failed to give sufficient reasons for rejecting the appellant’s evidence – Whether there was an error in the Magistrate’s fact finding |
LEGISLATION | Domestic and Family Violence Protection Act 2012 (Qld) ss 4, 8, 37, 164 |
CASES | CF v KT [2022] QDC 37 Drew v Makita (Australia) Pty Ltd [2009] QCA 66 MDE v MLG & Anor [2015] QDC 151 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
COUNSEL: | G McGuire for the appellant T Boettcher for the first respondent |
SOLICITORS: | Anne Murray & Co for the appellant Queensland Police Service Legal Services for the first respondent |
Introduction
- [1]The appellant appeals pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (“the DV Act”), against a protection order under s 37 of that Act, made against him, as respondent, by a Magistrate in the Emerald Magistrates Court on 9 April 2024. The order was for the benefit of the second respondent, the aggrieved.
- [2]The application for the protection order had been made by the first respondent pursuant to a Police Protection Notice (“PPN”) on 17 March 2023.
Background
- [3]The parties had been in a relationship previously for approximately five years and had lived together for approximately two years of that time. They have three biological children together and the second respondent has one older son who also resides with her. The relevant interactions occurred when the parties were living together at Clermont.
- [4]The basis of the Police Protection Notice was an incident on 12 March 2023 (“the 12 March incident”) where the appellant continued to touch the breasts of the second respondent despite her repetitively asking him to stop. The appellant then accused her of infidelity and demanded she unlock her phone. He then threw her phone at her, hitting her in the stomach.
Grounds of Appeal
- [5]The notice of appeal includes grounds criticising the Magistrate’s finding of acts of domestic violence on 10 January 2023 and 12 March 2023, and that the making of a protection order was not necessary or desirable. The further particulars are that the tone of the audio recording of the 12 March incident involving the touching of the second respondent’s breasts was inconsistent with her claim of being in fear of her life, and that her evidence of, in effect, masking her fear during this time was implausible. It is further said that the second respondent was generally not credible or reliable and her evidence is criticised generally as being: argumentative and unresponsive; lacking reasonable concessions; and it was incredulous (a more accurate adjective is incredible) and implausible that she had, as she said, complained to police who failed to act on her complaints. It was also said that her evidence suffered from not being properly tested.
- [6]The second ground of appeal is a failure to give sufficient reasons for rejecting the appellant’s evidence and accepting the second respondent’s evidence. A further ground, added by leave at the hearing, was that the Magistrate failed to adequately take into account text messages between the parties and prevented proper cross-examination of the second respondent on the content of those messages.
- [7]The appellant seeks orders allowing the appeal and setting aside the Magistrate’s decision, with the possibility of a remittal of the matter to the Magistrates Court for a fresh hearing.
Nature of the Appeal
- [8]In an appeal of this nature, the powers of the appellate court are exercisable only where the appellant demonstrates that, having regard to all of the evidence, the order the subject of the appeal is a result of some legal, factual or discretionary error. It is important to pay regard to the advantage of the Magistrate who witnessed the evidence being given and due weight must be accorded to the views adopted by the Magistrate (see, for example, CF v KT [2022] QDC 37 at [6] and the cases there referred to).
- [9]This particular jurisdiction is governed by its legislative scheme. Section 4(1) of the DV Act provides that the safety, protection and well-being of people who fear or experience domestic violence, including children, are paramount.
Discretion to Make a Protection Order
- [10]Section 37 of the Act sets out the relevant considerations. Thus:
- “(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 –
- (a)a relevant relationship exists between the aggrieved and the respondent; and
- (b)the respondent has committed domestic violence against the aggrieved; and
- (c)the protection order is necessary or desirable to protect the aggrieved from domestic violence.
- (2)In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence -
- (a)the court must consider the principles mentioned in section 4; and
…”
- [11]Subsection 8(1) of the DV Act defines domestic violence as “behaviour” which, relevantly:
- “(a)is physically or sexually abusive; or
- (b)is emotionally or psychologically abusive; or
...
- (d)is threatening; or
- (e)is coercive; or
- (f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.”
Errors of Fact
- [12]The first ground of appeal is essentially that the Magistrate erred in the fact-finding process, largely because of problems that are said to be identified as to the creditworthiness of the second respondent. The 12 March incident was audio-recorded by the second respondent. The essential contention by the appellant is that the Magistrate erred in accepting her evidence, it is said in an uncritical way, both as to that incident and other matters.
- [13]Appeals against factual conclusions based upon the credibility of witnesses heard at first instance are difficult for appellants. The respondent refers to passages from CF v KT (supra) including:
- “[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. It is rare for it to do so.
- [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: 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.”
- [14]It is thus necessary to examine the fact-finding process, and the evidence supporting the contentious incidents, as to whether problems of the kind referred to occurred. That is, is it shown that the Magistrate failed to use or palpably misused his advantage or acted on evidence which was inconsistent with incontrovertible facts or glaringly improbable.
- [15]The first respondent argues that there was evidence justifying the facts found by the Magistrate and his reasoning process was sufficiently articulated. Reasons sufficient to meet the necessary requirements do not need to be lengthy or elaborate, but it is necessary that the essential ground or grounds upon which the decision rests should be articulated; Drew v Makita (Australia) Pty Ltd [2009] QCA 66 at [60].
12 March incident
- [16]The recording was played to the Court at first instance. I have also listened to it. During the incident the second respondent repeatedly requested the appellant to stop touching her breasts, but he continued. During cross-examination, the second respondent consistently said that the touching was unwanted, as outlined by the Magistrate in his reasons.
- [17]Those reasons, at T1-2 of the transcript of the decision, include a summary of the second respondent’s evidence from her affidavit. She explains how she recorded the incident on her phone at the relevant time. The recording occupies four minutes and 54 seconds. The appellant began to touch her breasts and she repeatedly told him not to, to which he said, “No. They’re mine.” The Magistrate explained that there were at least seven occasions where she asked the appellant to stop.
- [18]The judgment sets out that the challenge to this evidence in cross-examination included that the appellant, when he said “they’re mine” was simply joking, which the second respondent rejected (T1-6 of the judgment). The Magistrate noted the arguments that, in respect of this incident, the second respondent had planned to leave the appellant and she was unconcerned as to him touching her breasts; it was not uncommon for a spouse to “push the envelope”; and that incident didn’t actually “go that far”. The Magistrate said that this submission trivialised the circumstances of that event. The appellant was asked no less than seven times to stop touching her breasts, where one request should suffice. He also noted the submission that the second respondent was embellishing her evidence as to domestic violence, and said that he could not accept that, having listened to the two recordings (12 March and 10 January) which support at least two occurrences of domestic violence.
- [19]The appellant’s criticism is that the demeanour of the second respondent, as heard on the recording, is inconsistent with her expressed concern and thus with the incident representing domestic violence. Certainly, her tone is relatively calm on the recording. She explained in evidence that she was masking her fear, which is an autistic personality trait, and she did not want the appellant to feed off her fear. She also accepted that she was eating a chocolate bar when the appellant commenced the touching of her breasts. The second respondent acknowledged this and when cross-examined about the touching being playful said “playfulness would stop at the word ‘stop’ and ‘no’” (T1-9, line 47).
- [20]As the first respondent submits, in the context of this commentary about eating chocolate and choosing not to show fear, care must be taken to avoid erroneous stereotypes about how persons the subject of sexual assault or other misbehaviour should respond; see e.g. R v Cotic [2003] QCA 435.
- [21]Overall, the Magistrate’s fact-finding conclusion as to the nature of this event being an example of domestic violence is not shown to be incorrect. He did not fail to use or palpably misuse his advantage, nor did he act on evidence which was inconsistent with incontrovertible facts or glaringly improbable. The behaviour is within the statutory definition. The reasons for his findings might have been more extensively explained but are sufficient according to the Drew v Makita template. Thus, the challenge to this conclusion fails.
10 January incident
- [22]The 10 January incident occurred when the second respondent was in the kitchen of the home making dinner and using a half filled coffee cup of water to remoisturise dry bread in the microwave. As with the 12 March incident, it was recorded. The appellant came into the kitchen and became abusive about the preparation of the food, alleged that flies were present in the food, and threw food. This is accepted by the appellant (in the outline of argument) as being capable of amounting to domestic violence. Thus, the first respondent points out that where domestic violence is conceded, the only relevant consideration on appeal is whether the Magistrate gave sufficient reasons for making the order, and if it was necessary or desirable in the circumstances.
- [23]The Magistrate recorded the nature of the evidence as to this incident (decision T1-5 lines 11 – 16) and again found that it amounted to domestic violence at T1-7 lines 44 – 47. The same observations as to the fact-finding process apply to this incident as set out in [21] above. His Honour’s conclusion is not shown to be flawed.
Second Respondent’s Evidence Generally Not Credible
Clermont Police
- [24]The appellant argues, in essence, that where there are significant challenges to the second respondent’s creditworthiness generally, acceptance of her evidence on any topic is unjustified and in error. Thus, the appellant submits that it is incredible that the second respondent would have complained to the Clermont police, as she says she did, but they took no action; see, for example, her evidence at T1-7 of the transcript of the evidence. The events as they are described by the second respondent do seem at least curious, particularly if, as she says, she had observable bruising. The appellant is critical of the comment by the Magistrate in response to this submission at T1-30 of the transcript: “wouldn’t be the first time”.
- [25]I am not in a position to make any findings in relation to this matter, as no police officers from the Clermont station were called to give evidence, which was understandable as the occasion was not precisely identified. I do note, however – relevantly to the comment by the Magistrate – that there has been a background of systemic concern about the response of the Queensland Police Service (“QPS”) to domestic and family violence. This gave rise to more than one inquiry, including that which resulted in the report “A Call for Change” published in November 2022. This is in the public domain and, in my view, I am entitled to take judicial notice of it. Its existence was mentioned at the hearing of the appeal.
- [26]The commentary in that report, including that commencing at p 42 under the heading “A problem that persists”, identifies, inter alia, that many previous reviews and reports – conducted internally and externally to the QPS – have examined its responses to domestic and family violence and repeatedly identified multiple shortcomings with the QPS response. This is not, of course, to make any adverse findings or even criticisms of any police officer, or indeed the staff of the Clermont Police Station, as to the interactions in this case. All it does do is provide context for the observation of his Honour (“wouldn’t be the first time”), which is criticised by the appellant. The comment is understandable – and thus not damaging to the quality of the reasoning process - in the context of the narrative outlined above. It is, in any case, not a central issue.
Text messages
- [27]In a further challenge to the second respondent’s creditworthiness, the appellant points to a number of text messages in evidence between the parties which tend to show an atmosphere of complaint, aggression and abuse flowing both ways between the parties at various times. No doubt this may well be correct. The appellant complains that this line of cross-examination was curtailed by the Magistrate at T1-23, line 41. The argument advanced about pursuit of those matters referred to demonstrating that the second respondent had a particular attitude towards her own son, which prompted the response from the Magistrate that, in the circumstances where there was no cross-application (that is, presumably, by the appellant for a protection order), he could not see the relevance. The advocate for the appellant did not persist.
- [28]Whilst, ideally, it may have been better if the argument which is now advanced (that these matters were generally relevant to the second respondent’s creditworthiness) had been fleshed out at the time, the fact is this did not occur. In my conclusion, this does not represent a legal, factual or discretionary error by the Magistrate, nor was the trial process thereby rendered unfair.
Other Factual Issues
- [29]There were some other factual contests, such as who initiated an Only Fans account; however, these matters were not central and did not assume importance in the appeal. Thus, further analysis of them is unnecessary. The factual findings by the Magistrate as to domestic violence were sufficient to justify his conclusions.
Cross Examination of the Appellant
- [30]It is correct to say that ideally the appellant’s evidence – largely, his affidavit - would have been challenged in clearer detail in cross-examination. The cross-examination was perfunctory and possibly not of much assistance, as noted by the Magistrate. However, this does not amount to a procedural or other error. His Honour noted that, in this context, acknowledging the evidence of the appellant, he accepted the evidence of the second respondent as to the two audio recordings.
Necessary or Desirable
- [31]As has been said previously, the question of whether an order is necessary or desirable invokes a very wide and general power and should be construed in a liberal manner to enable a proper response to protection from domestic violence (MDE v MLG & Anor [2015] QDC 151 at [55]). The parties have children together which raises the potential of ongoing contact. The first respondent submits that the conclusion on this limb was open to the Magistrate and the appellant did not submit otherwise at the hearing of the appeal.
Conclusion
- [32]As outlined above, the appellant’s complaint is really the uncritical acceptance of the second respondent, particularly in relation to the text messages. However, in my conclusion, it was open to the Magistrate, in the context of the whole of the evidence, to accept the evidence of the second respondent on any facts that were contentious. Moreover, as outlined above, in the context of the recordings a significant portion of the evidence was not contentious.
- [33]Thus, the findings were open to the Magistrate. No legal, factual or discretionary error has been identified, the reasons expressed were sufficient, and, in the circumstances, the appeal is dismissed.
- [34]I do note, however, for the guidance of Magistrates in hearings of this kind, that the delivery of ex tempore reasons such as these could be better organised than in this case. The reasons were, as in CF v KT, somewhat discursive. A better approach would be to organise such remarks under headings, such as, for example: the nature of the application; the legislative framework; a summary of the evidence; a summary of the submissions; relevant factual findings and the reasons therefor; and the conclusion. Approaching the matter in this way would have the benefits of imposing the discipline of fleshing out the reasoning process in the mind of the judicial officer, and at the same time exposing the reasons, and necessarily making it easier for the losing party to understand. It may also make the judgment both easier for an appellate court to understand, and possibly more difficult to attack on appeal. I offer this not as a counsel of perfection but hopefully as a practical guide.