Lisa (a pseudonym) v Commissioner of Police
[2024] QDC 184
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- Unreported Judgment
- Lisa (a pseudonym) v Commissioner of Police[2024] QDC 184
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Lisa (a pseudonym) v Commissioner of Police[2024] QDC 184
Lisa (a pseudonym) v Commissioner of Police[2024] QDC 184
DISTRICT COURT OF QUEENSLAND
CITATION: | Lisa (a pseudonym) v Commissioner of Police & Richard (a pseudonym) [2024] QDC 184 |
PARTIES: | Lisa (a pseudonym) (appellant) v Commissioner of Police (first respondent) Richard (a pseudonym) (second respondent) |
FILE NO: | Appeal No 115 of 2023 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 164 Domestic Violence Protection Act 2012 |
ORIGINATING COURT: | Magistrates Court at Cairns |
DELIVERED ON: | 25 October 2024 |
DELIVERED AT: | Cairns |
HEARING DATE: | 16 April 2024 |
JUDGE: | Fantin DCJ |
ORDER: |
|
CATCHWORDS: | DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where after a contested hearing the Magistrate made a protection order – where there was no dispute that a relevant relationship existed or that there was an act of domestic violence – whether the Magistrate erred in law in refusing to permit a police officer to be available for cross-examination – whether the Magistrate erred in finding that a protection order was necessary or desirable |
LEGISLATION: | Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 100, 145(1), 164 |
CASES: | DMO v RPD [2009] QDC 92 House v The King (1936) 55 CLR 499 Kioa v West (1985) 159 CLR 550 MNT v MEE (No 2) [2020] QDC 100 QKL v Queensland Police Service [2021] QDC 195 RQM v PAK [2023] QDC 53 |
COUNSEL: | J Eylander for the appellant. K Morrison (senior legal officer) for the first respondent. The second respondent appeared on his own behalf. |
SOLICITORS: | Bottoms English Lawyers for the appellant. Queensland Police Service Legal Services for the first respondent. The second respondent appeared on his own behalf. |
- [1]On 9 November 2023, following a trial in the Magistrates Court at Cairns, a protection order was made against Lisa (a pseudonym) as respondent in favour of Richard (a pseudonym) as aggrieved (‘the protection order’). The application for the protection order was brought by the police.
- [2]Pursuant to s 164 Domestic and Family Violence Protection Act 2012 (Qld) (‘the Act’), Lisa appeals against the making of the protection order.
- [3]The notice of appeal and first outline of submissions raised a number of grounds. Following a change of counsel, a supplementary outline was filed. In the course of oral submissions, the grounds of appeal were further refined with a number abandoned.
- [4]Ultimately, only two grounds of appeal were pressed:
- whether the Magistrate’s refusal to permit a police officer to be cross examined caused a miscarriage of justice because of a denial of procedural fairness; and
- whether the Magistrate erred in exercising his discretion to make the protection order, specifically whether there was evidence available upon which he could be satisfied that it was necessary or desirable to make the protection order.
- [5]The police (first respondent) conceded that the appeal should be allowed on the basis of the first ground, and the application remitted for rehearing by a different Magistrate. No party submitted that it was appropriate for this court to decide the application on the evidence before it.
- [6]The principles with respect to such an appeal are well settled and need not be repeated. The appeal is by way of rehearing on the record and subject to the limitations of an appellate court in that role. The court ought not interfere with the decision to make the protection order unless it is affected by an error of principle, there has been failure to appreciate a salient feature, or there is otherwise a miscarriage of justice. The matter was an exercise of a discretion and interference with such a decision is confined by the principles from House v The King.[1]
- [7]Section 37 of the Act provides, relevantly:
- 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 relevant relationship exists between the aggrieved and the respondent; and
- the respondent has committed domestic violence against the aggrieved; and
[Note omitted]
- the protection order is necessary or desirable to protect the aggrieved from domestic violence.
- In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—
- the court must consider—
- the principles mentioned in section 4; and
…
- 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.
- 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.
- [8]The incident giving rise to the application for the protection order occurred on 14 January 2023, following which a temporary protection order was made.
- [9]The hearing in the Magistrates Court proceeded on 9 November 2023.
- [10]At that hearing, there was no dispute that a relevant relationship existed, or that on 14 January 2023 Lisa had committed domestic violence against Richard by biting him on the arm in the course of a scuffle.
- [11]What was in dispute was the nature of the physical interaction between the parties on that date and whether, at the date of the hearing, it was necessary or desirable to make a protection order to protect Richard from domestic violence by Lisa.
- [12]The evidence relied upon below comprised affidavits from Richard, Lisa, and police officers, as well as photographs, body worn camera recordings, and oral evidence from Richard and Lisa.
- [13]The Magistrate gave an ex tempore decision shortly after the hearing ended.
- [14]The Magistrate’s findings can be summarised briefly. The evidence of the history of the relationship was unremarkable. The parties had been in a casual relationship on and off for three years, with occasions of verbal arguments followed by reconciliation. On the date of the incident, Lisa had gone to Richard’s home uninvited to confront him over suspicions of infidelity. She waited in the carpark of his unit complex. Upset and angry, Lisa confronted Richard when he arrived in his car. They had a verbal interaction which escalated to a physical interaction, initiated by Lisa punching Richard through the car window, followed by a scuffle outside the car in which Lisa bit Richard on the arm. Richard left to go to his apartment. Lisa later followed him to the apartment, he let her in, Lisa continued the verbal argument and threw some of his possessions off the balcony. Richard then physically removed Lisa from the apartment and called police.
Ground 1: Magistrate’s refusal to permit a police officer to be cross examined
- [15]On 20 September 2023 the application was mentioned. After a short discussion, the Magistrate asked whether any of the police officers were required for cross-examination. He immediately followed this by saying, “Bearing in mind it seems that most of the material seems to be body-worn and the court doesn’t place any weight at all on commentary by officers or interpretation of events.”[2]
- [16]Lisa’s counsel said that the applicant police officer was required for cross-examination. The Magistrate questioned why he was needed. He said that he would not give any weight to any expression of opinion or assessment by a police officer about who was the victim nor to any evidence about the investigation.
- [17]Lisa’s counsel said she sought to cross-examine the officer on the body-worn camera footage. The Magistrate said: “ … why I’m really quite firm about this, is there is so much material currently in the DV jurisdiction that is commentary which is irrelevant, and I’ve seen so much time wasted in this court cross-examining officers about views they’ve formed which are not relevant. They don’t assist me in deciding the facts of what actually happened that night.”[3]
- [18]In the face of this strong indication, Lisa’s counsel did not seek to further persuade the Magistrate from the view he had clearly reached.
- [19]His Honour then said: “It’s civil proceedings. See, I don’t want an officer taken off the duties. …When there’s a high likelihood that they wouldn’t be allowed to - a high likelihood it’d be ruled irrelevant.”[4] Lisa’s counsel submitted that perhaps the Magistrate hearing the application could determine the issue but the Magistrate interrupted, saying that he would be hearing the application. Lisa’s counsel then submitted that there could be a special hearing of that issue ahead of the hearing but the Magistrate again interrupted, saying that he was away in October and that would just delay things. He then made his ruling, that the police officer could not be required for cross-examination.[5]
- [20]The police prosecutor did not assist the Magistrate with any submissions on this issue.
- [21]The Magistrate then listed the matter for hearing before himself on 9 November 2023.
- [22]At the hearing, the police prosecutor relied upon the affidavit evidence of the police officers and tendered the recordings of their body worn cameras without objection. The Magistrate did not permit the police prosecutor to play the recordings during the hearing, saying “If it’s for my benefit, I’ll look at it if we get there.”[6] It is unclear what he meant by this. The issue was never revisited, although the parties referred to the body worn camera evidence in their submissions. It is unclear how the Magistrate could have considered the body worn camera evidence before reaching his decision. The recordings went for 2-3 hours but there was only a one hour adjournment between the end of the hearing and delivery of his Honour’s judgment and ex tempore reasons.
- [23]On appeal, Lisa’s counsel submitted that the Magistrate’s ruling at the mention precluding cross-examination caused a miscarriage of justice in circumstances where the Magistrate later relied in his findings upon the police officer’s affidavit evidence, and cross examination of the officer would have been relevant to the Magistrate’s assessment of the parties’ credibility and reliability and any inconsistencies between their accounts and internally.
- [24]Lisa’s counsel referred to the Magistrate’s reasons for decision in which he describes both parties being interviewed by police shortly after the incident occurred and giving accounts of that. In making his findings, the Magistrate said “So I have the opportunity to compare the consistency of the material internally as between the various accounts given by the one witness to different people, the police and then the court. And then there are questions of consistency between accounts or inconsistency between accounts.”[7] I accept that it is open to read this as the Magistrate relying upon evidence from the police officer in his findings. Later in his reasons, the Magistrate again refers to the body worn camera recordings, finding that Richard’s account “seems to be largely consistent with the account he gave to the officers, which was recorded on the body-worn camera.”[8]
- [25]The first respondent’s counsel endorsed the above submissions and also submitted that the police officer could have been cross-examined about evidence in his affidavit of physical injuries he observed to Lisa, which would have been relevant to the facts in issue of how the physical interaction occurred, who was the aggressor, and whether it was necessary or desirable to make the protection order. I accept that submission.
- [26]There was affidavit evidence from the police officer that he observed injuries to Lisa. He said that he spoke to her at about 1:45am on 15 January 2023. He said that he saw that she had a small scratch mark on her left forearm as well as some minor bruising to her arms and armpit, however no other visible injuries. He said he conducted a quick check of her and did not detect any observable signs of strangulation outside of slightly bloodshot eyes.
- [27]The officer’s evidence of injuries he observed to Lisa was capable of supporting her account in her statement of 22 June 2023 to the effect that Richard was restraining her using both his arms, that his arm moved up around her neck where he was squeezing tightly in a chokehold position, and she bit him to make him let go. It was also capable of supporting Richard’s account in his statement of 15 June 2023 to the effect that Lisa started punching him through the open car window, that when he got out of the car she tried to punch him again and he grabbed her hands to stop her trying to hit him, and that the third time she came at him and tried to punch him he spun her around and grabbed her in a bear hug from behind.
- [28]The Magistrate’s ruling prevented these issues being explored. He ruled on an issue raised unilaterally by him, without notice, at a mention, in circumstances where Lisa’s legal representative was not in a position to assist with considered submissions, and ultimately was unable to dissuade the Magistrate from the strong initial view he had. Following the ruling, it appears that Lisa’s legal representative considered themselves bound by it, and did not seek to reopen it at the hearing, which was before the same Magistrate.
- [29]The making of a protection order has serious consequences. It can restrict a person’s ability to obtain particular kinds of employment. A breach of the order is a criminal offence potentially punishable by imprisonment. In circumstances where the making of the order is a serious matter, one would expect the rules of procedural fairness to apply.[9]
- [30]By virtue of s 145(1) of the Act, the court is not bound by the rules of evidence, or any practices or procedures applying to courts of record and may inform itself in any way it thinks appropriate. But provisions of this kind do not exclude an obligation to accord procedural fairness.
- [31]I respectfully agree with the statements of McGill DCJ in DMO v RPD[10] (in considering the previous version of this section):
- [9]Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness. Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form. But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter.
- [10]Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination.
- [32]The Magistrate erred in law by ruling, in advance of the hearing, and without putting the parties on notice, that he would not permit the applicant police officer to be cross-examined. Ordinarily where a hearing is contested, it is expected that it would proceed with the witnesses being subject to cross-examination. The Magistrate denied the appellant natural justice in being able to test the relevant evidence during the hearing.[11]
- [33]Any ruling as to the admissibility of the officer’s evidence, including its relevance, should have been made during the hearing, or if at a preliminary hearing then one where the parties were on notice of the issue and had the opportunity to consider and prepare their submissions.
- [34]I am satisfied that cross examination of the officer, including about what injuries he observed to Lisa, could have elicited evidence probative of a fact in issue: how the physical interaction occurred, who was the aggressor, and whether it was necessary or desirable to make the order.
- [35]I accept that the factual findings made by the Magistrate in his decision were open on the evidence before him, particularly with respect to how the incident occurred and the events leading up to it. He found that aspects of Lisa’s evidence were implausible and caused him to have doubts about her credibility and reliability. But in a case where the decision turned upon the Magistrate preferring the evidence of one party over another as to how the physical interaction occurred, evidence given by the police officer of what physical injuries he observed in Lisa, and about the contents of the body-worn camera recordings, could have affected the Magistrate’s findings of fact about the incident and ultimately whether it was necessary or desirable to make the order. Lisa’s counsel should have been entitled to explore those issues in cross-examination.
- [36]
- [31]…Busy Magistrates are under pressure when their courts have crowded lists, in a variety of jurisdictions, on a daily basis. They understandably and appropriately may wish to dispose of as many matters, in the most efficient way, as is reasonably possible. Such a desire is consistent with r 5 of the Domestic and Family Violence Protection Rules 2014 (‘the Rules’).
- [32]This leads, however, to occasional, perhaps unintentional, cutting of corners in the kinds of ways seen in this case; this may be particularly understandable when one or more parties are self-represented. However in contested domestic violence order applications procedural fairness is essential; even if it takes a little longer, it is much quicker for the system overall than successful appeals.
- [37]I am satisfied that in refusing to permit cross-examination of the police officer, the Magistrate failed to afford procedural fairness which resulted in a miscarriage of justice such that the result cannot stand.
- [38]The first ground of appeal succeeds.
Ground 2: Whether the Magistrate erred in exercising his discretion to make the protection order
- [39]Because of my findings with respect to the first ground of appeal, it is not strictly necessary to determine this ground. Nonetheless, because it was argued, I have considered it.
- [40]The court has a broad discretion whether to make a protection order. The discretion must be exercised judicially, by reference to the relevant statutory criteria. Where there is some evidence to support the exercise of discretion, it will be difficult to demonstrate on appeal that the Magistrate erred in finding it was necessary or desirable to make the order. The question is not whether a different Magistrate may not have been so satisfied, it is whether the Magistrate erred in making the order.
- [41]The risk of future domestic violence and the need for Richard to be protected from it had to be considered in all the circumstances, including past domestic violence. I respectfully agree with the views of McGill DCJ in GKE v EUT:[13]
- [32]In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. …
- [33]I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the 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.
- [42]Here, there were a number of uncontested facts assessed in the context of the evidence as a whole which militated against a finding that it was necessary or desirable to make a protection order.
- [43]There had been no previous history of domestic violence. The interaction giving rise to the temporary protection order was an isolated incident arising out of a particular situation. Although the Magistrate found that the physical interaction was initiated by Lisa, both parties suffered some physical injuries as a result of it. Richard was a trained security guard. Richard was larger and stronger than Lisa. The parties did not have children, share finances, own common property, or live together. The parties were no longer in a relationship. They had no mutual friends and no reason to interact with each other again. The hearing occurred 10 months after the incident. There was no evidence of any contact between the parties during that period. There had been no contraventions of the temporary order. There was no allegation of any further act of domestic violence by Lisa against Richard. There was no evidence that Richard feared Lisa.
- [44]In her oral evidence, Lisa maintained that she had not initiated the physical contact by first punching Richard. She accepted that she went to his apartment building, and said that after she confronted him verbally, he exited his car and assaulted her. Her oral evidence included evidence to the effect that Richard placed her in a choke hold from behind, by placing his right arm up under her right arm and pushing her head down forcing it forward with his other arm around and in front of her, and that she then bit him on the arm to make him to let go of her. She said after he let her go he pushed her and she fell to the ground, losing control of her bladder.
- [45]In considering whether it was necessary or desirable to make the order, the Magistrate relied upon his findings about Lisa’s role in the altercation (which were different to her account). He also found that Lisa gave an account to police in which she did not accept responsibility and her maintaining an account (in her affidavit and in court), which was contrary to Richard’s version, suggested ‘hostility’ towards Richard. He concluded, “So in those circumstances, I’ve concluded that the making of a protection order is necessary and desirable with the conditions that have been sought.”[14]
- [46]On the evidence, the descriptor of ‘hostility’ was inapt. As respondent to the order sought, Lisa was entitled to challenge Richard’s version of events and give her own account of what occurred. She accepted that she had bitten him in the course of the altercation but provided an alternative explanation for how that occurred. Exercising her right to do so in the proceeding did not, in and of itself, suggest ‘hostility’ towards Richard, nor did other evidence support that finding. It was never put to Lisa in cross-examination that she continued to be ‘hostile’ towards Richard, nor was she cross-examined about her attitude towards him generally.
- [47]The Magistrate’s reasons do not reveal any other basis for concluding that a protection order was necessary or desirable. While the facts of the altercation were relevant to the exercise of the discretion, even giving them their full weight, in my view they were not sufficient to overcome the weight of the other undisputed facts I have referred to above.
- [48]The Magistrate appeared to recognise the countervailing evidence in the undisputed facts by reducing the term of the order from the standard five years to two years, rather than in considering whether that militated against the making of an order at all.
- [49]In the circumstances, I do not consider that a finding that it was necessary or desirable to make a protection order was open upon the whole of the evidence before the Magistrate.
- [50]The second ground of appeal succeeds.
Relief
- [51]The parties submitted that the appeal should be allowed, the order set aside and the matter remitted to the Magistrates Court at Cairns to be heard by a different Magistrate; the latter submission made on the basis that the Magistrate made adverse findings of credit with respect to the appellant Lisa. In those circumstances, the matter should be remitted for rehearing by a different Magistrate.
- [52]At the appeal hearing Richard made it clear that he no longer sought the protection order and did not wish the police to proceed with the application. He gave reasons for that. While ultimately it is a matter for the first respondent, those are clearly matters relevant to the exercise of its discretion in whether to pursue the application or withdraw it.
- [53]Lisa sought an order that the first respondent pay her costs of the appeal on the standard basis.
- [54]Accepting that the court has power to award costs in an appeal under the Act,[15] the usual, but not intractable, rule is that costs follow the event. Lisa has succeeded on both grounds of appeal. There are other considerations relevant to the exercise of the discretion which warrant a departure from that principle in this case. They include the public interest nature of a proceeding under the Act, particularly where a police officer acts under s 100 of the Act. There was a proper basis for the first respondent’s application to be brought. It is conceded on behalf of Lisa that there was an incident of domestic violence on the evening of 14 January 2023. The appeal is allowed on the basis of errors of law by the Magistrate, not the conduct of the first respondent. In those circumstances, it is not appropriate to order that the first respondent pay Lisa’s costs.
- [55]The appropriate order is that there be no order as to costs, thereby requiring each party to bear its own costs.
Orders
- [56]The orders are:
- Allow the appeal.
- Set aside the orders made by the Magistrate.
- Remit the application to the Magistrates Court at Cairns for rehearing before a different Magistrate.
- No order as to costs.
Footnotes
[1](1936) 55 CLR 499, 504-505.
[2]Transcript of mention on 20 September 2024 (‘Mention’), page 1-3, lines 37–40.
[3]Transcript of Mention, page 1-5, lines 42–46.
[4]Transcript of Mention, page 1-6, lines 25–26.
[5]Transcript of Mention, page 1-7, lines 1–3.
[6]Transcript of hearing on 9 November 2024 (‘Hearing’), page 1-23, lines 34–38.
[7]Transcript of decision on 9 November 2024 (‘Decision’), page 1-4, lines 21–24.
[8]Transcript of Decision, page 1-5, lines 30–31.
[9]Kioa v West (1985) 159 CLR 550, 584–585.
[10][2009] QDC 92, [9]–[10].
[11]QKL v Queensland Police Service [2021] QDC 195, [27]–[29].
[12][2023] QDC 53, [31]–[32].
[13][2014] QDC 248, [32]–[33].
[14]Transcript of Decision, page 1-10, lines 42–44.
[15]MNT v MEE (No 2) [2020] QDC 100.