TLR v TUN[2024] QDC 147

DISTRICT COURT OF QUEENSLAND

1. Introduction and identification of the issues.

1. [1]
   On 17 October 2023 a Protection Order was made against the appellant, following a contested hearing of cross-applications. In order to save confusion, I will refer to the parties by their role in this appeal, rather than in the cross-applications heard below.
2. [2]
   Although legally represented at the hearing, the appellant is now self-represented. The pleaded grounds of appeal differ from those pursued in the written outline of submissions. The respondent has, properly, treated the expanded grounds in the outline as the grounds of appeal to be argued on appeal. I will paraphrase them:

3. 1)
   The Magistrate erred in failing to give proper weight, or any weight, to the evidence of the witnesses called by the appellant. In particular, the Magistrate erred in giving weight to those witnesses called by the respondent and who testified by phone but then finding that he could not assess the veracity of the witnesses called by the appellant, because they had given evidence by phone.

3. 2)
   The Magistrate erred in failing to give proper weight to a recorded admission made by the respondent that she had previously committed an act of domestic violence.

3. 3)
   The Magistrate erred in failing to give proper weight to the appellant’s testimony, which was supported by other witnesses.

3. 4)
   The Magistrate erred in failing to give proper weight to inconsistencies in the respondent’s evidence.

3. 5)
   The Magistrate erred in failing to find that the respondent had committed acts of domestic violence against the appellant, and also in failing to find that it was appropriate for an order to be made in favour of the appellant.

3. [3]
   It was explained in the course of submissions that the second mentioned ground of appeal was a complaint that the Magistrate should have accepted that the respondent said certain things in the recording, but the Magistrate stated he was unable to be satisfied of what was said.
4. [4]
   The appellant also seeks leave to adduce further evidence which, it is said, came to his attention since the hearing. This further evidence is a Queensland Police Service record which, it is argued, confirms that the respondent has committed an act of domestic violence in the past and which is inconsistent with the respondent’s evidence at the hearing. As such, it is said to be relevant to proof of propensity and to the assessment of the respondents’ credibility and reliability.
5. [5]
   Accordingly, the issues for determination are:

3. 1)
   Is the additional evidence fresh or new evidence and, regardless, should it be admitted?

3. 2)
   Did the Magistrate err in making any of the impugned findings of fact?

6. [6]
   For the reasons that follow, the application to adduce further evidence must be refused as the material sought to be adduced does not satisfy the requirements of the test for admissibility on either basis. Further, the appeal must be dismissed as the appellant has failed to satisfy the onerous task of showing that findings of fact should be set aside. Also, there does not appear to be any error in the exercise of the discretion to make the orders that were made.

6. The nature of the appeal

7. [7]
   A person who is aggrieved by a decision to make, or to refuse to make, a Protection Order may appeal against that decision.^[1] It is conducted as an appeal by re-hearing on the record,^[2] and so the appeal is to be decided on the evidence and proceedings before the Court below, unless the appellate Court makes an order to the contrary.^[3]
8. [8]
   In respect of the five grounds of appeal, the onus is on the appellant to show that there is some error in the decision under appeal.^[4] The powers of this Court to interfere with the orders below are exercisable only where the appellant can demonstrate that, having regard to all the evidence, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.  In the circumstances of this appeal, the establishment of fault will only succeed if it can be shown that the finding was contrary to all of the evidence. The test to be applied is sometimes referred to as needing to establish that the finding was contrary to “incontrovertible facts or uncontested testimony”, was “glaringly improbable” or was “contrary to compelling inference”. While it is undesirable to fix stringent labels to the nature of the test, those observations demonstrate the onerous task facing an appellant seeking to overturn findings of fact. It is a daunting, but not impossible, task.
9. [9]
   Further, the appellate Court is required to act with restraint in considering a complaint about fact finding. Among the reasons for that approach, is the need to recognise that the fact finder had the considerable advantage of seeing and/or hearing the witnesses. It is not enough to demonstrate that the appellate Court could reach a contrary view. The relevant principles have been helpfully summarised in Sutton v Hunter and Anor.^[5]
10. [10]
    If fault is established, I must conduct a re-hearing. I must recognise the natural limitations that exist in the case of any appellate Court proceeding wholly on the record, again recognising that the Magistrate had the advantage of seeing and hearing the witnesses as part of the process of the evaluation of credit and reliability.^[6] Within those constraints, I am required to conduct a real review of the evidence and proceedings below, including the reasons below, and make my own determination of relevant facts in issue, including any inferences to be drawn, giving due respect and weight to the Magistrate’s conclusions.^[7]
11. [11]
    Fault does not need to be established before additional evidence can be adduced on the appeal. The tests to be applied are noted below. The nature of the additional evidence must be considered in light of all of the material below to determine if it is to be admitted.
12. [12]
    The powers to dispose of the appeal are found at s. 169 of the Act. Under s. 169(2) of the Act, the decision of this Court is final and conclusive.

13. [13]
    I have read all of the material below, and watched and listened to the tendered recordings.

6. Is the additional evidence fresh or new evidence and, regardless, should it be admitted?

14. [14]
    For the purposes of an appeal, a distinction is drawn between “fresh evidence” and “new evidence”. Broadly speaking, evidence is fresh if it was not in existence at the time of the hearing below or, if it was in existence, if it could not have been located and obtained with reasonable diligence. Any additional evidence which is not “fresh” is “new evidence”. Fresh evidence will be admitted on the appeal if there is a significant possibility that the admission of the fresh evidence would have resulted in a different outcome at first instance. New evidence will be admitted only if it is necessary to avoid a miscarriage of justice.^[8] It is a more difficult test to satisfy and it follows that for new evidence to be admissible on the appeal, it must possess a high degree of cogency and relevance to the appellant’s case.
15. [15]
    The additional evidence the subject of the application has not been put before me. The appellant explained that he didn’t understand he should subpoena it. He explained that after the hearing below, he became aware of a record of the Queensland Police Service which referred to a complaint that the respondent had assaulted her ex-husband and his partner at their former marital home in 2020. He became aware of it in the course of family law proceedings as it had been produced under subpoena. Those proceedings are still pending. He assumed that his then lawyer would have subpoenaed all material for the hearing below, but he apparently did not.
16. [16]
    The proposed use to be made of it is to indicate a propensity for violence by the respondent that would tend to disprove or cast doubt on her denials of violence upon the appellant. If admissible on that basis, it would go both to an assessment of the respondent’s credibility and reliability, as well as arguably supporting the appellant’s assertions that the respondent was violent to him.
17. [17]
    The respondent correctly observed that the evidence is not before me. She submits that I cannot properly assess the true cogency of the evidence in those circumstances, and that I should not make assumptions about it. There is merit in that latter submission also, however I consider it appropriate to consider the issue, at least as to determine whether it would be appropriate to adjourn the appeal to allow the material to be brought to Court. The self-represented appellant should not be shut out on his appeal by a lack of understanding of process.
18. [18]
    The evidence is new evidence on the appeal. It was created before the hearing below in 2023 and could have readily been obtained by issuing a subpoena, as occurred in the family law proceedings.
19. [19]
    I have considered the effect of the material at its highest as put to me by the appellant. I am not satisfied that it reaches the high standard required for admission of that type of evidence. It is a hearsay account of allegations and there has not been any finding against the respondent concerning it. Even if there had been, an isolated act of violence against a former partner does not show the necessary propensity to affect the likelihood of her having assaulted the appellant as he alleges. It may have been desirable from the appellant’s perspective had the evidence been adduced on the hearing, but its absence below does not amount to a miscarriage of justice.
20. [20]
    I am also mindful of the possibility that this material may have affected the assessment of the respondent’s credibility and reliability. Even if it were accepted that the respondent had been violent on that occasion, I do not consider such a finding necessarily meant that her account would not have been accepted, as it was.
21. [21]
    There is one passage in cross-examination where, on one view of it, the respondent denied that there was ever police involvement concerning her and her ex-husband.^[9] However, I am not satisfied that the answer is as unequivocal as it may appear to be. Given the series of questions and answers given prior to that point, and recognising the accepted language difficulties that the respondent experienced in cross-examination, I am satisfied there is at least a reasonable possibility that she was speaking only about the period prior to when she and her ex-husband separated. That ambiguity means that it cannot be shown that the determination of the matter without this additional evidence has resulted in a miscarriage of justice.
22. [22]
    The application for leave to adduce this additional material must be refused.

6. Did the Magistrate err in making any of the impugned findings of fact?

6. Ground 1

23. [23]
    There were a total of five witnesses called, other than the appellant and respondent. Each of those five witnesses testified via telephone. Of those called on behalf of the respondent, the Magistrate held that little turns on the evidence of one, LM, in respect of one issue in the evidence,^[10] although he later accepted some of her testimony in relation to another issue.^[11] Notwithstanding an earlier passage that is unclear as to whether the Magistrate was recording a submission that LM’s reliability was difficult to assess as she testified over the phone or whether he was making his own observation,^[12] he did in part accept her account. He also accepted the evidence of the other witness called by the respondent, ZG, and gave weight to her account “despite giving evidence over the phone”.^[13]
24. [24]
    Of the three witnesses called by the appellant, the Magistrate expressly gave weight to the evidence of two of them, JC and SC, although found that their evidence did not actually support the critical aspect of the appellant’s account of the relevant incident. In respect of the other witness, the appellant’s daughter TT, the Magistrate stated that he had considered her evidence, that he considered she was she was defending her father and that it was unfortunate that she wasn’t present to testify before him as it was difficult to assess her reliability over the phone.^[14] He then made a factual finding contrary to the accounts of the appellant and TT in respect of that incident.
25. [25]
    From that analysis, it can be seen that the bifurcated approach resulting in the differing findings complained of by the appellant was not in fact adopted by the Magistrate. His Honour made findings while acknowledging the difficulties created by testifying over a telephone connection, as was appropriate. He found that all or parts of the various witnesses’ accounts were reliable, except for that of TT. Although the finding could have been more clearly expressed, he did not accept her evidence on the basis of apparent bias and due to a preference for the respondent’s account, a witness he found to be reliable due to consistency notwithstanding the language difficulties experienced.
26. [26]
    This ground has not been made out.

6. Ground 2

27. [27]
    When police attended the jointly occupied residence on 9 January 2022, a body-worn camera was activated. At one point in the conversation, the appellant related an earlier occasion where he asserted the respondent had attacked him with scissors. The appellant testified that in response to that, the respondent stated “I was pregnant” which, it was submitted, should be understood to be an implicit admission or explanation as to why she had attacked him. It was submitted, in effect, that such an admission supported the appellant’s account of violence in the relationship emanating from the respondent. The respondent denied that is what she had said, and suggested she said she was packing up, or words to that effect.
28. [28]
    The Magistrate expressly found that, having listened to the recording, he was uncertain what she had said. I too have listened to the recording. I too am uncertain as to what was said, although the respondent does appear to say something. In those circumstances, the Magistrate did not err.
29. [29]
    I note that what was being referred to by the appellant at the time was an asserted incident when camping in 2018. Other evidence shows that the respondent was pregnant in 2018, and so there may be some support for the proposition that is what she said. However, even if that is what the respondent said, that is a long way from being an implicit admission as to wrongful conduct.

6. Grounds 3, 4 and 5.

30. [30]
    These grounds can be distilled into a single proposition; the evidence of the appellant and of the witnesses called by him should have been preferred over that of the respondent and of those called by her, but was not.
31. [31]
    The Magistrate found each of the three complaints raised by the respondent, as well as the more general allegations of physical and verbal harm to her son and to herself, to be proven on the balance of probabilities and to amount to domestic violence. His Honour was not satisfied that any of the three complaints by the appellant had been made out to the relevant standard, and hence was not satisfied that the respondent had committed domestic violence against him.
32. [32]
    As an overarching consideration, the Magistrate preferred the evidence of the respondent over the appellant for reasons including, but not limited to, the fact that she gave expansive but nonetheless generally consistent answers. He acknowledged that there were occasions where there was an internal inconsistency in her account, but considered that they were explicable because English was not her first language, and that there was some consequent confusion including through the use of an interpreter. That the respondent experienced language difficulties was independently supported by GZ, a witness whose testimony was accepted as being reliable. This was a legitimate consideration.
33. [33]
    One asserted inconsistency that was said to be significant was that in her affidavit the respondent referred to being dragged out of the house by the hair in January 2022, whereas in cross-examination she referred to being dragged out of the room by the hair. His Honour considered that was an explicable misuse of language. As it happens, and although not referred to by his Honour, the body-worn camera footage of the interaction with police reveals one officer saying, after speaking with the respondent, that she reported having been dragged out of the room by her hair.
34. [34]
    The respondent’s account of poor treatment over a period of time at the hands of the appellant gained some broad support from GZ, whose evidence, as noted above, was accepted as being reliable. Notably, she was not moved under cross-examination.
35. [35]
    On the other hand, his Honour considered that the appellant’s non-expansive and regularly monosyllabic responses in cross-examination reflected less favourably on him. Ultimately however, his Honour preferred the respondent’s evidence over that of the appellant because it made a better impression and because there was support for some aspects of it from witnesses whose evidence he accepted.
36. [36]
    A brief recitation of the evidence and findings illustrates that the findings were open.
37. [37]
    Reflecting firstly on the allegations made by the respondent, the Magistrate acknowledged that there was no independent support for the allegation of punching in the car in 2017 but, for the reasons noted above, accepted the respondent’s account over the appellant’s denial.
38. [38]
    In relation to the allegation that the appellant pushed the respondent into a household pool when she was pregnant in 2018, he again preferred the respondent’s account over the appellant’s denial. He further noted that although the narrative of events had the appellant’s daughter TT present during the incident, there was no evidence adduced from her in support of the denial, even though the appellant called her to testify in relation to another incident. The failure to adduce evidence in support was, in the circumstances, capable of raising an inference that any evidence she could have given about the matter would not have assisted the appellant’s case. Accordingly, the finding was open.
39. [39]
    In relation to the January 2022 incident, he again preferred the respondent’s account over the appellant’s. As noted earlier, he considered the inconsistency as to whether the respondent was dragged out of the house or the room was explicable on the basis of language difficulties. He accepted that the respondent rang the neighbour LM complaining about the conduct, and that, according to LM, the respondent said she had been punched by the appellant. It was noted there was no allegation of punching, but the Magistrate considered that not much turned on that. The conclusion was open.
40. [40]
    The appellant denied these allegations. Further, he said he couldn’t have dragged her out of the room or the house because he had a bad back and was carrying their 3-year-old child because she was scared of the respondent. The respondent said that he had picked up the child after he had dragged her. The appellant can be seen on the body-worn camera footage holding the child when police arrived, but it was open to accept the respondent’s account as to when the appellant picked up the child. Although it was accepted that the appellant had a back injury, the tendered body-worn camera footage showed him to be moving relatively freely. Further, the issue should not be approached on the basis that the term “dragged” was used literally. The descriptor “pulled” was also used to describe the conduct. None of this meant that the appellant’s account had to be preferred.
41. [41]
    Further again, the appellant’s teenage daughter CT was present. She can be heard on the body-worn camera footage telling a police officer that she “wasn’t really involved”. Her account to police went no further. She was not called to testify, apparently as she was “not available to give evidence today”.^[15] Two affidavits that had been filed were not read for the purposes of the hearing. Her absence was explained and so no inference arises from her absence. However, the appellant’s evidence was not independently supported. The finding was open.
42. [42]
    The finding of general physical and verbal abuse of the respondent’s own son, aged about 12 years at the time of the hearing, was also open. He was not called and so an inference is open. However, there was the respondent’s direct evidence which could be, and was, accepted and there was some generally supportive evidence in the account of LM. While the appellant’s submission that she “had an axe to grind” in respect of the appellant was noted and dismissed, it remained capable of providing some support for the respondent’s account. There was nothing that required LM’s account to be ignored.
43. [43]
    Turning then to the specific allegations made by the appellant in the cross-application, the first in time was said to be an incident at a house in Underwood in 2017 which resulted in the police being called. A report from that attendance was tendered, and the Magistrate placed reliance on it.
44. [44]
    In essence the appellant asserted that on this occasion the respondent attacked him with scissors and knives, hit and kicked him and smashed glasses and crockery and the like on the floor. It was asserted that she accused the appellant of having sex with his daughter TT, who was present at the time with her then partner. The respondent accepted there had been an argument, but said it was about her wanting TT and her partner to move out of the house. She said it resulted in the appellant placing his arm around her throat and squeezing it. She accepted that she bit his hand, she said in an effort to have him release her. She admitted throwing plates, but said, in effect, it was done as an expression of frustration and denied that she threw them at anyone, as opposed to throwing them on the ground.
45. [45]
    TT testified in support of her father’s account, and was not materially moved in cross-examination. However, it was also abundantly clear that her attitude to testifying showed considerable partiality towards her father. While the evidence might have been accepted by the Magistrate, it did not have to be. The then partner was not called, but his absence was explained, and so no inference arises from the failure to call him.
46. [46]
    The police report recorded, in a summary fashion, the various accounts and then concluded that it was unnecessary to provide protection for the appellant. The testimony of both the appellant and the respondent markedly differed from that recorded by police in their report. The officers concluded that, based on what they were told, the domestic violence that occurred was minor in nature.
47. [47]
    The Magistrate recorded that he gave significant weight to the police report, but referred only to the conclusions. Those conclusions appear to support the conclusion that domestic violence – albeit minor in nature – was committed by the respondent against the appellant, but his Honour used it to support his preference for the respondent’s account. It did not have that effect.
48. [48]
    In truth, the accounts reported to police differed so markedly from that testified to in the hearing that their conclusions were of no weight. The differences in accounts could have been used as a basis for cross-examination as to prior inconsistent statements, but that did not occur.
49. [49]
    In my view, his Honour erred in having any regard to the reported conclusions of the police officers. However, the ultimate finding that he was not satisfied on the balance of probabilities that the incident occurred, and hence was not satisfied that an act of domestic violence had occurred, was in any event open on the evidence. That is especially so given his Honour’s overall preference for the respondent’s account, supported as it broadly was by GZ’s testimony.
50. [50]
    Turning then to the incident at the camping trip at Easter 2018. The appellant’s account was generally supported by JC and SC. They were each careful and measured witnesses. The Magistrate did put weight on their accounts, but ultimately concluded that there were limitations to their evidence. He considered that their description of events were not necessarily inconsistent with the respondent’s account. In particular, his Honour considered it significant that neither reported seeing any cut to the appellant, as he testified was the case. On a close review of the evidence, a contrary conclusion may have been open, but so too were each of the findings, and hence also the ultimate finding that he was not satisfied on the balance of probabilities that the conduct described by the appellant occurred.
51. [51]
    The final specific act alleged by the appellant in his cross-application was an incident involving, he said, the respondent throwing plates at a residence in a township near Gympie in 2021. His Honour noted that there had not been any evidence adduced about this in the hearing, and so he was not satisfied that it occurred. That conclusion cannot be criticised in those circumstances.
52. [52]
    On the basis of those findings as a whole, which had the effect that the appellant had committed a number of specific acts of domestic violence towards the respondent, but not by the respondent on the appellant, it was open to accept the respondent’s broader non-specific allegations of domestic violence.
53. [53]
    On my review of the whole of the evidence, I have concluded that there were occasions where contrary findings could have been made, including that referred to in paragraph [50] herein. However, in none of those instances did contrary findings have to be made. The appellant has failed to clear the high bar set in having findings of fact set aside, and so he fails grounds 3, 4 and 5 of the appeal, also.

6. A further consideration

54. [54]
    Even though any error in the exercise of the discretion to make the order was said to flow from the erroneous findings of fact, given that the appellant is not legally represented on the appeal I have considered whether any other error is apparent in the exercise of the discretion to make a Protection Order under s. 37 of the Act, as informed by the various other provisions including ss. 22A and 41G. Although not having the benefit of focussed submissions on these issues, I do not detect any error after having considered all the material.

6. Conclusion

55. [55]
    The appeal must be dismissed.