IAW v Commissioner of the Queensland Police Service
[2024] QDC 190
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- Unreported Judgment
- IAW v Commissioner of the Queensland Police Service[2024] QDC 190
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IAW v Commissioner of the Queensland Police Service[2024] QDC 190
IAW v Commissioner of the Queensland Police Service[2024] QDC 190
DISTRICT COURT OF QUEENSLAND
CITATION: | IAW v Commissioner of the Queensland Police Service & Anor [2024] QDC 190 |
PARTIES: | IAW (appellant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (first respondent) and JEJ (second respondent) |
FILE NO: | BD 3476 of 20 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 1 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 July 2024, 21 October 2024 |
JUDGE: | Burnett DCJ |
ORDER: |
|
CATCHWORDS: | DOMESTIC VIOLENCE – APPEAL – Appeal against Magistrate’s order to extend the period of a protection order – where respondent submitted the application was made for improper purpose – where the application was alleged to be made in furtherance of a previous incident occurring 4 years ago – whether making of the protection order was desirable or necessary – whether Magistrate ought to have dismissed application. |
LEGISLATION: | Domestic and Family Violence Protection Act 2012 Evidence Act 1977 Acts Interpretation Act 1954 |
CASES: | Apostilides v The Queen [1984] 154 CLR 563 at 576 Black and White Cab Co Pty Ltd v Kelk [1984] 2 Qd R 484 Briginshaw v Briginshaw (1938) 60 CLR 366 Cannon v Tahche (2002) 5 VR 317 at 340 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 DMK v CAG [2016] QDC 106 Forrest v Commissioner for Police [2017] QCA 132 GKE v EUT [2014] QDC 248 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 JKE v EUT [2014] DCJ 248 Luxton v Vines (1952) 85 CLR 352 at 358 Mallard v The Queen (2005) 224 CLR 125 MDE v MLG and Queensland Police Service [2015] QDC 151 Mulholland v Mitchell [1971] AC 666 Pickering v McArthur [2010] QCA 341 Richardson v. The Queen (1974) 131 CLR 116 R v Brown [1985] 2 Qd R 126 R v Spizzirri [2001] 2 Qd R 686 at 687 Shaw v The Queen [1952] 85 CLR 365 The Queen v Soma (2003) 212 CLR 299 Whitehorn v The Queen [1983] 152 CLR 657 at 674 |
COUNSEL: | Appellant is self-represented G O'Brien for the Respondent |
SOLICITORS: | Appellant is self-represented Queensland Police Service |
Introduction
- [1]On 16 November 2020 a protection order was made in favour of the second respondent, Ms J against Mr W (the Appellant) in the Brisbane Magistrates Court. The order was one made in accordance with s 37 of the Domestic and Family Violence Protection Act 2012 (DV Act).
- [2]The Appellant was and remains unhappy with the orders and filed a notice of appeal on 14 November 2020. The notice of appeal identified 21 grounds of appeal many of which are repetitive. Where appropriate they will be collected together as indicated below.
Nature of appeal
- [3]The Appellant appeals pursuant to s 164(a) DV Act as a person aggrieved by the making of a domestic violence order. The appeal must be decided on the evidence and proceedings before the court that made the decision being appealed but the appellate court may order that the appeal be heard afresh in whole or part: s 168 DV Act. Although s 168 DV act merely states the “…appeal must be decided on the evidence and proceeding before the court that made the decision”, for reasons provided in GKE v EUT [2014] QDC 248 at [3] this is accepted to mean the appeal is one by way of rehearing and not de novo.
- [4]Accordingly, the question is not whether the appellate court may have itself made a different finding but rather whether the finding made by the Magistrate was reasonably open on the evidence before her. Where the appeal proceed by rehearing the court must, “… decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal”: Forrest v Commissioner for Police [2017] QCA 132 per Sofronoff P.
- [5]Section 37 DV Act confers a discretion on the trial court to make a protection order. Accordingly, the appeal by necessity is one against the exercise of the Magistrate’s discretion under s 37. It follows s 168(2) of the DV Act reposes discretion in this court to order that the appeal be heard afresh in whole or in part. It seems that this discretion may be invoked if the appellant demonstrates some legal, factual or discretionary error of the trial magistrate.[1]
- [6]Finally as the appeal is one governed by the UCPR, UCPR 766 deals with general powers on hearing appeals. Relevantly to one of the grounds raised in this appeal, the rules provide an appeal court may on “special grounds” receive further evidence. Generally appellate courts are reluctant to admit fresh evidence as the policy is that there must be finality to litigation: Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135. Its reception has been described as rare and exceptional: Mulholland v Mitchell [1971] AC 666. This is especially so when the further evidence proposed was available for use at the original trial: Pickering v McArthur [2010] QCA 341 at [13].
- [7]Those matters inform my approach to this appeal.
The original proceeding
- [8]The proceedings before the Magistrate commenced by way of a police protection notice (PPN) issued by Senior Constable Grange on 19 June 2020. The PPN noted the Appellant as respondent and named the second respondent as the Aggrieved. It took effect as an application for a protection order.[2] The Appellant was issued a notice to appear for 26 June 2020 when upon the first mention a temporary protection order issued. Following that appearance, the matter was case managed until the matter initially came on for hearing on 26 October 2020. On that day the hearing commenced but was adjourned part heard until 16 November 2020 for final determination. Shortly following the trial, the Magistrate issued a five-year protection order in favour of the Aggrieved. She also named another, Ms D who she found to be an associate of the Aggrieved and whom she considered ought to be subject of a protection order. It is this order that is now the subject of appeal.
Trial
- [9]Although the trial extended over two days the evidence itself was relatively limited. The Appellant was self-represented and required quite a deal of assistance from the court in order to ensure that the matter progressed expeditiously. There was significant interaction between the Appellant and the Magistrate relevant to particular grounds of appeal that are addressed below.
- [10]In summary, a violent verbal exchange between the Aggrieved and the Appellant which was heard by Ms D, a neighbour. Curiously police were called to the disturbance by the Appellant. Senior Constable Jason Grange and his partner Sergeant Ohtomo and later another Senior Constable were tasked to attend. Upon arrival Senior Constable Grange and his partner Sergeant Ohtomo took up with the Appellant who was seen to be seated in his vehicle. At that time the Appellant appeared to give a measured and rational account of events including complaining of the Aggrieved assaulting him by striking him with her fist to his face on four occasions. At that point Sergeant Ohtomo then left the kerbside and attended upon the Aggrieved in her residence. Upon speaking to the aggrieved she complained to Sergeant Ohtomo of the Appellant choking her following a verbal altercation between them. In the meantime, another Constable had arrived and assisted in the investigation by speaking with the Aggrieved’s neighbour, Ms D who appears to have been alert to the difficulties in the Aggrieved’s unit.
- [11]Shortly after, Sergeant Ohtomo returned to the Appellant and put the complainant’s version to him. He denied her complaints and referred to her as lying and contended that any marks on the Aggrieved were a consequence of the violent assault, she perpetrated upon him. He insisted that he wanted the Aggrieved charged with assault and that he was not intoxicated. He insisted that ambulance officers assess him and took issue with the ambulance offices having left the scene without affording him a physical examination. Throughout the later conversation with police the appellant was highly agitated as was evident from the body worn camera footage. He was then transported to the Holland Park Police Station where a PPN issued. He was informed that the PPN issued identifying him as the respondent and the Aggrieved as the Aggrieved because she appeared to have more significant injuries.
- [12]During the course of the trial various matters were put by the Appellant to Constable Grange particularly concerning process. However, Constable Grange was unable to assist in respect of matters of procedure and gave evidence of events entirely consistent with matters objectively discernible from the body worn camera footage.
- [13]The next witness called was Ms D, the upstairs neighbour. She swore to the contents of her affidavit wherein she stated that on the night in question she recalled hearing screaming with a male (the Appellant) shout words to the effect of, “I’m going to kill you” observing he sounded threatening. She said she decided to go downstairs to see what was happening. She described events as seeing a male aged around 40 with shoulder length hair who was obviously distressed open the door of the Aggrieved’ s apartment. She stated she called out asking, “What’s happening?”; and, “Is everyone okay?”, Upon seeing the Appellant she suggested he should go. Noting he was extremely flustered he said to her, “I just want to get my thongs and go”. She noted the male then said, “she’s a psycho” to which she shrugged in response and following which the Appellant seems to have merely calmed down. A short time later she says, “police attended”.
- [14]Sergeant Ohtomo largely corroborated Constable Grange’s evidence concerning events that occurred in the company of each other. He too was wearing a body worn camera and the BWC footage largely corroborated those matters. In addition, he stated he took a photograph of the Aggrieved’ s throat which photographs exhibit reddish marks in the vicinity of her throat. Under cross-examination he accepted that he was asked by the Appellant to address his domestic violence complaint concerning the aggrieved. He stated however that he assessed that the Aggrieved required more protection and determined that it was the aggrieved that required protection she being a more vulnerable person.
- [15]The next witness called was the Aggrieved who affirmed her affidavit stating that she had met the Appellant in March of 2020 and they commenced communicating. She said that after about two weeks the Appellant told her that he was living in his car and that he suffered from bipolar and depression. She continued checking on him to ensure he was okay. She stated that around her birthday in late March she met with him at a local tavern and had a drink. After he confirmed that he slept in his car she told him that he could stay at her place. After a couple of weeks, the relationship became intimate, and it was acknowledged between them that they were together and a couple. At this time because of the covid restrictions they did not commonly leave the apartment during that period. Upon the lifting of lockdown and re-commencement of socialising, she said the Appellant “started to change”.
- [16]On 19 June 2020, the material day, she says the Appellant went to work, she had returned home about lunchtime and at that time a male friend of hers dropped by for a visit. She says that between about 2.45 pm and 3.30 pm while her friend was over, she received a lot of messages and 11 miscalls from the Appellant. All the messages were along the lines of the Appellant asking if she was at home and what was going on and why wouldn’t she answer. At about 3.30 pm she saw the messages and miscalls and called the Appellant to ask what was wrong. She said that immediately he asked why she wasn’t answering to which she responded by asking why he didn’t ring the doorbell. He said he’d noticed she had company to which the Aggrieved replied informing the Appellant who it was. The Appellant then came in at which point The Aggrieved indicated she was departing to visit a friend who she subsequently left to see. The friend drove her home and she arrived there at about 5.30 pm. Upon entering the apartment they immediately commenced arguing. The Aggrieved thought the Appellant was drunk. She noticed two bottles of whiskey on the kitchen bench. One was empty and the other half was half empty. In addition, she could smell alcohol on him and he was slurring and talking loudly. She took a number of videos on her mobile phone while they were arguing. She says at this point the argument escalated while they were standing in the galley kitchen. The Appellant was telling her that he wanted to get some clothes. She didn’t want the Appellant coming any further into the apartment so she told him that she would get his stuff and drop it to his friend’s house whom she knew lived around the corner. She says that at this point she started pushing him towards the door with two hands probably on his chest trying to move him in that direction. She said he stood his ground and would not move despite her efforts to push him towards the door and the next thing she recalled was the scuffle when they were both screaming at each other and grabbing each other. She does not remember the Appellant hitting her and she did not think she hit him. However, she does remember the Appellant placing his hand around her throat but could not remember whether it was one hand or two. She also remembers grabbing the Appellant by the hair at some point although at that stage she believes she was still standing. She said that she remembered feeling pressure around her throat and feeling dizzy but not much else after that. The next recollection she had was waking up lying on the floor at the end of the kitchen bench near the door. She recalls at that point the Appellant was standing at the front door shouting to someone who was outside. She remembers he was shouting something like the word “psycho” and saying he was leaving. She says she got up off the floor and she was feeling confused and her throat was sore and she was having difficulty swallowing. She says about five minutes later police arrived. She hadn’t called them and she was uncertain as to who did. She complained that she suffered some bruising and scratches to her arms and bruising and swelling on the left cheek as a result of the incident.
- [17]In cross-examination she disagreed with the suggestion that she punched the Appellant four times in the face and that it was when she had the Appellant’s hair in hand that he then reached up with his hand to her throat. She also rejected the suggestion that when she had the Appellant’s hair in her hand that she yanked his head back and forth.
Legislative framework
- [18]Section 37 DV Act sets out the essential elements for the exercise of a discretion to make a protection order. Relevantly it provides:
“(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 relevant relationship exists between the aggrieved and the respondent; and
- the respondent has committed domestic violence against the aggrieved; and
- 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
- may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.
- [19]Section 4 DV Act sets out the principles which guide the administration of the Act. Relevantly they include:
“(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.
- Subject to subsection (1), this Act is also to be administered under the following principles-
- people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
- 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;
- 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;
- 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;
Examples of people who may be particularly vulnerable to domestic violence –
- women
…
- in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of domestic violence, including for their self-protection, the person who is most in need of protection in the relationship should be identified; …”
- [20]Generally, in conducting proceedings a court is not bound by their rules of evidence and may inform self in any way it considers appropriate; s 145(1) DV Act. Further the court need only be satisfied of a matter on the balance of probabilities: s 145(2) DV Act; although the principle in Briginshaw v Briginshaw[3] is applicable.
- [21]In broad terms the Magistrate accepted the evidence of both police officers and Ms D. She preferred the evidence of the Aggrieved in preference to that of the Appellant who she noted minimised the injuries sustained by the Aggrieved and made concessions in the body worn camera footage to “putting her to the ground by restraining her”. She noted he also made an attack on police for failing to file a criminal complaint and unjustifiably racially vilified Sergeant Ohtomo who was courteous at all times despite severe provocation by the Appellant. She noted that this was also consistent with objective evidence such as the absence of injuries on the Appellant notwithstanding his complaint of being struck by the aggrieved on four occasions with a closed fist. In her ultimate finding the Magistrate found,
“I accept the submissions by prosecution that prosecution have demonstrated that there was cogent evidence, which is discharged on the balance of probability, standard of proof, that the respondent has committed acts of domestic violence against the aggrieved which included coercive and controlling behaviour in relation to the matter in which she spoke to the aggrieved, and is sulking and being emotionally manipulative when she did not comply with his requests, his berating her for going to have a drink instead of continuing to wait until his washing was out of the machine, and his denigrating her, saying that when he lived in his car for 18 months, he’d never left washing in a machine wet during that state of homelessness.”
She noted that the Aggrieved’s behaviour towards the Appellant was understanding and indulgent and not punitive which was in stark contrast with the attitude demonstrated by the Appellant to her who after having rendered the Aggrieved unconscious, called police and asked for them to make an application for a domestic violence protection order against her. She commented that she was satisfied there was “compelling evidence of commission of acts of domestic violence having been perpetrated by (the Appellant) which included a serious incident of strangulation of (the Aggrieved) such as to render her unconscious and to fracture the bones in her throat”. Upon that basis the Magistrate concluded that both the Aggrieved and her neighbour, Ms D who had provided her support throughout the proceedings as well as being an independent witness should also be included as a protected person.
Grounds of appeal
Grounds 1, 3 and 4 –
- –concluding that an act of domestic violence had been committed
- –there was sufficient evidence to justify that an act of domestic violence had occurred.
- –failing to arrive at a decision based on relevant, reliable and rationally probative evidence.
- [22]In his written submissions the Appellant says no finding of an act of domestic violence could be made because there was no unlawful strangulation by the Appellant as he acted in self-defence. As he claimed privilege against self-incrimination, he contended the Magistrate was, “unable to draw an inference from (that) claim” or “unable to infer anything as to evidence on behalf of the Appellant and (was) therefore unable to come to a decision on the matter.”
- [23]Although it is correct that the Appellant did claim privilege, as was his right, his version of events came before the court in the form of admissions made by him to police in the course of a conversation which was recorded by police on their body-worn cameras. It was therefore open to the Magistrate to make what she chose of that material, including the drawing of reasonable inferences and for her assessment of demeanour and credit of the Appellant. She appropriately used that material for those purposes. Contrary to the Appellant’s submissions, this was not a case of the prosecution not satisfying its burden of proof to the civil standard because more than inference was open on the findings.[4] Here she rejected the Appellant’s evidence of self-defence. It left her with the Aggrieved’ s evidence concerning what occurred. She accepted the Aggrieved’s evidence and that supported a finding that the Appellant committed an act of domestic violence. Except for the Appellant’s contention that the act of strangulation was lawful there was no contest that that act otherwise constituted domestic violence.
- [24]There is nothing in the reasons of the Magistrate to suggest she drew any adverse inference against the appellant because of his claim of privilege. Indeed to the contrary she was consciously careful to ensure that the Appellant did not prejudice his rights mindful of the criminal proceedings in the background.
- [25]These grounds are not made out.
Ground 2 – erred in finding a protection order was either desirable or necessary.
- [26]The Appellant contended that the relevant test for determining whether a protection order was desirable or necessary was set out in JKE v EUT[5] where at [33] McGill DCJ observed 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.”
- [27]The appellant submitted that there was no evidence from the aggrieved or Ms D that either was concerned of retribution or held fears in respect of that matter. However that was the basis of the prosecutor’s submission. It was submitted that upon that basis the Magistrate’s finding was not supported by the evidence.
- [28]In MDE v MLG and Queensland Police Service[6] Morzone QC DCJ set out the relevant test for determining whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence”. His Honour stated:
“In my view the third element of whether the protection order is necessary or desirable to protect the aggrieved from domestic violence” requires a three-stage process supported by a proper evidentiary basis (adduced to s 145 of the Act):
- Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order.
There must be evidence to make factual findings or to inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders (s. 37((2)(b)), and changes of circumstances.
Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.
- Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.
Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places of residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
- Thirdly, the court must then consider whether imposing a protection order is ‘necessary or desirable’ to protect the aggrieved from the domestic violence.
In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1).”
- [29]In addressing this particular issue the Magistrate stated:
“In relation to whether an order is necessary or desirable, I accept the submission by prosecution that The Aggrieved is a female who lives alone. She took pity on the respondent and offered him a home, and as a result she has been involved in a frightening ordeal, which put her life in jeopardy. I note there are criminal proceedings on foot in relation to this incident, which will necessitate the matter proceeding through the higher court in relation to those criminal proceedings. I note that Ms D was fearful of the respondent. The respondent has demonstrated erratic behaviour during the conduct of this matter on his own behalf. On the first day of the hearing, on 26 October, I note that his emotional volatility was demonstrated on the body-worn camera footage when he goes from rational, calm and jocular to raging, abusive and violent.
I am satisfied that the Aggrieved, given the severity of her injuries has reason to be fearful of further contact by the respondent during her time which she will be required to give evidence in proceedings in relation to the criminal charges relating to these proceedings. I note that Ms D is a neighbour who was involved as a witness in these proceedings. I note that the Appellant initially viewed her as a witness for him and falsely asserted that she was concerned for his safety. I reject that summation of the evidence of Ms D who was clear that she was fearful that there had been an injury sustained by the aggrieved who was screaming and then stopped.”
- [30]I do not disagree with any of the observations made by the Magistrate. However, some further matters are relevant and ought to have been considered. They are:
- Aside from the short relationship between the Appellant and the Aggrieved there is no other connection between these parties. That relationship came to an abrupt conclusion on the night the PPN was issued. The Appellant relocated to a suburb a significant distance from the Aggrieved’s place of residence. Subject to the prospect of there being some contact in the course of the proceeding, opportunities for direct or indirect contact and communications because of the parties’ personal and/or familial relationships, their places of residence and work and the size of Brisbane City were remote. The need to protect either the Aggrieved or Ms D from future domestic violence by the Appellant could only be founded in mere possibility or speculation. In my view that conclusion is fortified by there being no evidence of any contact between the appellant and the aggrieved over the intervening six months between the issue of the PPN and the proceedings. None of these matters were addressed in consideration the issue of whether an order was necessary or desirable; Further, in respect of Ms D, I doubt her relationship with the Aggrieved would satisfy the requirements of DV Act s 15, relevant relationship. Ms D had only come to meet the Aggrieved on the night in question.
- As her Honour noted there were and then remained on foot criminal proceedings. The usual undertaking as to bail provides for a “non-contact” order. A breach of such an undertaking in practical terms would carry much heavier and greater consequences for the appellant than a breach of a protection order thereby reinforcing my assessment that given the absence of contact between the aggrieved and the appellant the prospect of further domestic violence; pending an order necessary or desirable remained only a possibility or speculative;
- Likewise, when considering the Aggrieved’s reasons for fear during a time when she would be required to give evidence the Magistrate afforded little, if any, weight to the court’s consideration of the proceeding, including the making of appropriate orders in accordance with Part 2, Division 4 of the Evidence Act. That is particularly so in respect of Ms D, if she was indeed in a relevant relationship to the Aggrieved.
- [31]Respectfully, to ignore a consideration of the terms of bail provisions and/or special measures afforded special witnesses would by necessity mean that any occasion where a respondent was subject to criminal proceedings or an Aggrieved was required to give evidence they would , ipso facto, demonstrate the necessity or desirability for an order. In my view, whist that might commonly be the result that outcome should not follow without a full qualitative assessment of all relevant factors. That is especially so with the special measures consideration. These measures are put in place for the Aggrieved’s benefit and become otiose upon the conclusion of the hearing. In the absence of misconduct by a respondent in the presence of an Aggrieved at the hearing, an inference drawn from the imposition of a special measure provides little to assist in the evaluation of the risk a respondent poses when assessing the overall necessity or desirability of making a protection order. Likewise concerning the bail conditions imposed.
- [32]In my view the Magistrate failed to give appropriate consideration to these factors which are relevant to the assessment of whether or not the imposition of a protection order was “necessary or desirable”. Nothing in the respondents’ submission does or can address the significant deficit in the reasons. This ground of appeal is made out.
Ground 5 – error in making decisions based on inadequate personal experience rather than on evidence.
- [33]The Appellant contends that the Magistrate erred by making her decision based on “inadequate” personal experience rather than evidence and in particular pointed to a discussion concerning the seriousness of the Aggrieved’s injuries. There the Magistrate stated,
“This is a specialist domestic violence court, the Appellant. Part of the training of the court includes an understanding of the epistemology of strangulation, which sadly, is a frequent instance of domestic violence. So the submission by you that there was not serious damage is untenable.”[7]
- [34]It was submitted for the respondent that this submission misses the point. Respectfully, I agree. The matters required to be determined by the court are whether there was a relevant relationship, an act of domestic violence, and an order is necessary or desirable to protect the aggrieved. A qualitative assessment of the nature and extent of injuries may or may not be useful in undertaking such an assessment. However it is not determinative. While it is correct that there was no evidence as to what a “fractured thyroid cartilage” is the fact remains there was a medical report supporting that conclusion. That evidence together with the complainant’s statement as to the effect of the assault upon her including the severity of the strangulation being such as to render her unconscious are all factors that support a conclusion that the physical assault by the Appellant upon the Aggrieved constituted a significant assault. Section 145 of the Act provides the court is not bound by the rules of evidence and may act on other material. To that end the only issue that arises is whether the Appellant was afforded natural justice by being informed that the Magistrate was informing herself of the matter and thereby afforded a right to respond. Given her Honour’s intimation, I am satisfied that the Appellant was on notice and that it was within his power to respond if he chose to. In this case he did not.
- [35]In my view this ground has not been made out.
Grounds 6 and 8 – error in failing to stay proceedings pending the outcome of the criminal proceedings.
- –Error in failing to take into account material considerations.
- [36]The Appellant submits that once it became apparent that he was to be subject to criminal charges the Magistrate ought to have stayed the proceeding until the criminal charges were disposed of. The failure to do so resulted in the appellant being prejudiced because of the tension evident between his right to silence in respect of the criminal proceeding and his right to be heard in respect of the civil matter.
- [37]
“I find the following statement of principle from the judgment of Megaw LJ in Bhetcha’s case p. 904 highly persuasive:
I should be prepared to accept that the court which is competent to control the proceedings in the civil action, whether it be a master, a judge, or this Court, would have a discretion, under s 41 of the Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings, if it appeared to the court that the justice – the balancing of justice between the parties – so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the ‘right of silence’ and the reason why that right under law as, it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Rule 14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge – the so-called ‘right of silence’ – does not extent to give the defendant as a matter of right the same protection in contemporaneous civil proceedings”.
- [38]In that case the applicant was facing trial on indictment in respect of certain offences and was a defendant in civil proceedings in respect of the same subject matter. There Connolly J determined that the defendant’s right to silence did not extend so as to deny the plaintiff in civil proceedings the right to prosecute its action before the disposition of the criminal proceedings.
- [39]In considering the circumstances of this case, the facts militating against the exercise of a discretion in favour of the Appellant for stay are that the Appellant identified self-defence as the underlying basis for the lawfulness of his assault upon the aggrieved. But that evidence is before the court in the form of statements made by the Appellant to police recorded on the body-worn camera footage. Obviously enough those statements were neither tested nor sworn to but nonetheless in circumstances where the court has broad powers concerning the reception of evidence, those factors would simply be weighed in the mix. Any claim for privilege against self-incrimination would not have been corrupted by the presentation of the body-worn camera footage to the court and thus it is difficult to see how the Appellant was prejudiced by this proceeding preceding any criminal trial which was then to be disposed of. That of course ignores other relevant differences in the proceedings including the burden and standard of proof in a criminal proceeding being much stricter.
- [40]Furthermore, the Appellant was not denied the right to call evidence, had he considered it necessary. Given the circumstances of the alleged event of domestic violence it is unlikely any other evidence could have been called. There is no history of any other difficulty and furthermore the subject event occurred in the privacy of the Aggrieved’s apartment. While it is clear that at some point voices were raised, the only witness called in respect of that matter beyond the parties was Ms D who did not witness any interaction between the Appellant or the Aggrieved and was unable to give any particular evidence beyond noting she had heard raised voices.
- [41]In all the circumstances it does not appear that the Magistrate miscarried in the exercise of her discretion on this basis. This ground is not made out.
Ground 7 – error in making a finding of guilt when the Appellant had made a claim of privilege against self-incrimination
- [42]The Appellant contended that nothing can be inferred by his claim of self-incrimination and thus no decision could have been reached. He submitted that by making the claim it prevented the Magistrate from making a determination concerning his evidence. He submitted that it followed the Magistrate was unable to make a determination of whether he committed an act of domestic violence because she could not determine that he had acted either lawfully or unlawfully as she had no evidence upon which to make that determination.
- [43]As I observed earlier, the Appellant’s version of events came before the Court notwithstanding his claim for privilege against self-incrimination. It was in the form of statements made by him and recorded on police body worn camera footage. What her Honour made of those statements is entirely a matter for her but nonetheless the evidence was available to her and for her consideration of the matter. There is nothing in her Honour’s reasons to suggest inferences drawn and findings made based upon her consideration of that material were not reasonably open to her and properly founded upon her consideration of that evidence.
- [44]This ground fails.
Ground 9 – error in not ensuring all the evidence was supplied in the brief of evidence
- [45]The Appellant contends that at a mention on 30 June 2020 he made allegations that the Aggrieved had been repeatedly attempting to contact him by telephone following the incident. The representative for the Aggrieved at the hearing contended for the contrary that namely that the Appellant had been repeatedly calling the aggrieved. Consequently, the Magistrate ordered that telecommunications checks be undertaken to resolve this contest.[9]
- [46]The Appellant now complains that the outcome of these enquiries were never revealed to the Court. He contends that such objective material would have supported his contentions and accordingly would have seriously undermined the credit of the Aggrieved.
- [47]Had this material procured by the Magistrate it ought to have been made available to each of the parties. However, a review of the court file does not indicate any such material was sought. In the ordinary course such material would be procured by a party to the proceeding upon the issue of a summons for third party production of documents. The Magistrate has no investigatory powers and as a matter of orthodox practice would only make enquiries in respect of matters relevant to the administration of a proceeding and only in exceptional circumstances give directions concerning the calling of evidence.
- [48]I infer from what transpired that this matter having been mentioned was soon forgotten about and never actioned. Had it been considered significant her Honour may have suggested one of the other parties, most probably the prosecutor, arrange for that material to be subpoenaed in the usual way. That did not happen. There was nothing to prevent the Appellant himself from perusing that matter but he did not either. Arguably the matter was relevant to the question of whether an order was necessary or desirable and on that basis could have been tendered. Had it supported his contention that he had not contacted the Aggrieved it also would have had the collateral advantage to him of undermining the Aggrieved’s credit as contended for by the Appellant. Nonetheless, I am satisfied that there has been no breach of procedural fairness to the appellant in its non-production. This ground fails.
Ground 10 - Conduct of the hearing resulted in the appellant not receiving a fair hearing.
- [49]Concerning these grounds, the Appellant submits that he did not enjoy a fair trial because of a failure by the prosecutor to provide him with a full brief of evidence and at trial a failure to produce relevant witnesses.
- [50]Concerning the full brief of evidence, he complained that his initial brief contained affidavits of the four officers who attended the scene along with the copy of the police protection notice and list of exhibits. The brief did not include affidavits from the Aggrieved or Ms D. Nor was he provided with statements given by the doctors from the Mater Hospital that were referred to by Constable Grange in his affidavit. Further, he complains the material was not delivered to him at least 14 days prior to the hearing as is required and he was refused the right to view the majority of the evidence alleged against him and accordingly he was unable to organise his defence and prepare his cross-examination.
- [51]Additionally, he alleges he was refused the right to cross-examine two of the police officers who provided evidence to the investigators, they being Officer Togiatami and Officer Trigger who each provided affidavits for the prosecution. It is well settled “… the prosecution must at common law also disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty.”: Mallard v The Queen (2005) 224 CLR 125 at [17]. The duty is a duty owed to the Court and not duty enforceable at law at the instance of the accused. It involves a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be affording fairness that the trial process requires: Cannon v Tahche (2002) 5 VR 317 at 340 [57].
- [52]The Appellant complains further that during the course of the preparatory mentions for the trial his efforts at obtaining material were frustrated. It was submitted that he was denied the right to inspect and copy material that had been alleged against him and the Magistrate was aware that he had not been afforded the opportunity to review any of that material. Furthermore, he submitted the Magistrate was aware that the prosecution failed in their duty of disclosure. Accordingly, he submits he was unable to organise his defence and prepare his cross-examination of the Aggrieved and the other witnesses. As was noted by de Jersey CJ in R v Spizzirri [2001] 2 Qd R 686 at 687 [7] concerning the ambit of disclosure and it usefulness for cross examination:
“[7] … It would have been sufficient that they armed the defence with information it might fairly have pursued with the complainant towards that potentially significant forensic goal, the erosion of his credit.
[8] Of course the court would have retained its discretion to stop unhelpful or offensive cross-examination, and that would have encompassed unduly inflammatory or insulting questioning, or questions about matters only remotely relevant: Evidence Act 1977, ss 20, 21. But the defence should have been allowed the opportunity to equip itself for a possibly even more convincing attack on the complainant’s credit than in fact occurred.”
- [53]The Chief Justice proceeded to note the Crown’s obligation to disclose in advance its statements and other potentially relevant evidence in accordance with the DPP’s Guidelines to Prosecutors which are reflected in the QPS Prosecution Manual. His Honour continued:
“[14] Consistently with this more open approach, it would be oddly regressive if, in the contemporary criminal court, a trial judge were to deny the defence access to material which may well help erode or destroy an important Crown witness’s credit; or to say (although this was not said here) ‘you have enough already – I will not let you equip yourselves to take any further step along this route’.”
- [54]In this case, rulings by the Magistrate did indeed seek to inhibit the appellant’s preparation of his defence by ruling as she did.
- [55]There is no doubt that the Appellant behaved in a quarrelsome manner and on occasions proved to be difficult to corral to any point. I sympathise with the Magistrate’s frustrations in dealing with this particularly difficult litigant. However that said, the Appellant was entitled to that information and any concerns that the Magistrate may have entertained concerning its use ought to be have been reserved to the trial.
- [56]The next complaint concerns the prosecution’s failure to produce witnesses. Concerning that duty it was said in Whitehorn v The Queen [1983] 152 CLR 657 at 674 per Dawson J,:
“In Richardson v. The Queen (1974) 131 CLR 116 this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.
Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court.”
- [57]Respectfully, it was incorrect to say that because the prosecution did not intend to rely upon their evidence “… so you [appellant] don’t have the opportunity to cross-examine them”. Although the witnesses did have the veneer of being repetitious omission in fact they were not. Each revealed differing episodes in their interaction with others relevant to the proceeding. While the Court has no control over the witnesses called for the prosecution it misdirected itself by believing there was nothing to be achieved in their cross-examination at least without questioning the defendant on the purpose of cross-examination.
- [58]The Appellant is incorrect to contend that within reason he has the right to have produced any witness that forms part of the prosecution case. It is open for him to complain that a material witness that the Crown did not choose to call was not made able for cross-examination. That conventionally occurs, or at the very least such a witness may be made available, so they might be called by the defence. Such as was commented upon by the High Court in Apostilides v The Queen [1984] 154 CLR 563 at 576.
- [59]While the Appellant complains that this failing constituted “an enormous miscarriage of justice” and was a “obvious failure to provide procedural fairness” he has not addressed in his submissions the basis for that conclusion. Plainly the Magistrate’s ruling had that potential but in the absence of concrete illustrations I am not satisfied that potential was realised. This ground is not made out.
Ground 11 – failure to comply with disclosure requirements
Ground 14 – calling a material witness after closing arguments
- [60]The Appellant complains that the witness, Sergeant Ohtomo, had been called on the first day of trial and stood over for cross-examination until the second day of the trial. When the second day of the trial arrived at approximately 2 weeks later he was not initially cross-examined. That occurred because of an incorrect statement made by the Magistrate to counsel who had been engaged by the Appellant only for the day that Sergeant Ohtomo’s evidence had to be completed. However, the confusion was further exacerbated by the Magistrate’s belief that the Appellant had elected not to cross-examine Sergeant Ohtomo. That matter was ultimately resolved but unfortunately a resolution was not reached until after the close of evidence and submissions. Ultimately, at that point in the trial the Appellant’s counsel, in who in the meantime had returned to Court, then cross-examined Sergeant Ohtomo.
- [61]The general rule is that the prosecution case is not to be reopened by the calling of further evidence after it has closed its case. The rule in particular is directed to ensuring the Crown does not split its case: see The Queen v Soma[10]. However, a trial Judge has a discretion to permit the Crown to reopen its case to deal with a purely technical question: see Shaw v The Queen [1952] 85 CLR 365; R v Brown [1985] 2 Qd R 126. Here, it was not strictly a case of the Crown reopening its case. Sergeant Ohtomo had been called by the prosecution but mistakenly the defence was not permitted to cross-examine him. In any event, he was subsequently produced for cross-examination at the request of the defendant. Whilst the prosecutor’s submission that s 145 DV Act permitted the Magistrate to inform herself was a misconceived submission, the fact remains that the Magistrate had a discretionary power to reopen as she did. Although the process adopted was highly irregular it did not, in my view, give rise to any injustice. Nothing of any particular moment appears to have arisen from the cross-examination of Sergeant Ohtomo. Furthermore at the time the Appellant was then represented by counsel who did not for instance seek a further adjournment at the conclusion of cross-examination to consult further with the Appellant or otherwise take issue with the irregularity. The inference to be drawn is that counsel was neither so alarmed by the outcome of cross-examination or emboldened by it that he required time to advise and seek instructions from the Appellant concerning another course, such as the prospect of the defendant giving evidence. This ground fails.
Ground 16 – error in applying the discretion under s 151 for special measures
- [62]The Appellant complains that the Magistrate had misapplied and misdirected herself in respect of the special witness provisions provided for in the Act concerning Ms D and the aggrieved.
- [63]Concerning Ms D, it was submitted that she was not a protected witness. In respect of the Aggrieved it was submitted the Magistrate did not afford him due process as provided for by s 151 of the Act when making an order under that section.
- [64]Section 151 of the Act deals with the restriction on cross-examination in person. Relevantly it provides:
“151 Restriction on cross-examination in person
- This section applies if—
- a protected witness gives evidence in a proceeding under this Act; and
- a respondent in the proceeding wishes to cross-examine the protected witness; and
- the respondent is not represented by a lawyer.
- The court, on its own initiative or on the application of a party to the proceeding, may order that the respondent may not cross-examine the protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to—
- suffer emotional harm or distress; or
- be so intimidated as to be disadvantaged as a witness.
- …
- If the court makes an order under this section, the court must—
- inform the respondent that the respondent may not cross-examine the protected witness in person; and
- require the respondent to advise the court by a stated date or time whether the respondent—
- has arranged for a lawyer to act for the respondent; or
- has arranged for a lawyer to act for the respondent for cross-examination of the protected witness; or
- has decided not to cross-examine the protected witness.”
- [65]Section 150 provides that a protected witness is a person who “is to give, or is giving, evidence in a proceeding under this Act and includes, the aggrieved and a relative or associate of the aggrieved who is named in the application that relates to the proceeding.”
- [66]The original protection notice issued on 19 June 2020 at 10pm. It was issued by a Constable Grange. The Appellant was noted as respondent and the aggrieved “The Aggrieved”. In item 6 of the notice provision was made for identification of “relatives or associates … to be named on the order”. No person was noted. On 24 June 2020, the matter came before a Magistrate when a temporary protection order was made. The aggrieved was identified as “The Aggrieved” and again no associate was named. At that time directions issued to the party. The first reference to a named person namely, Ms D, appeared on the protection order issued 16 November 2020. From the Court’s file note it appears that an order was made declaring Ms D a protected witness on 26 October 2020.
- [67]Section 150(1)(c) DV Act addresses the status of a protected witness relevantly to mean “…the aggrieved and/or a relative and/or an associate of the aggrieved who is named in the application that relates to the proceeding”.
- [68]Two possible constructions of s 150 DV Act protected perron are open. Namely a protected person is the person who is named in the application that relates to the proceeding means,
- An associate of the person who is aggrieved who is named in the application or
- An associate of the Aggrieved, that being the associate, who is named in the application.
- [69]The main objective of the Act includes ensuring that people who commit domestic violence are held accountable for their actions. That object is achieved by allowing a Court to make a domestic violence order to provide protection against further domestic violence. Where some doubt arises concerning the interpretation of a provision of an Act, s 14A(1) Acts Interpretation Act provides “the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.” The extrinsic material including the second reading speech and the explanatory memorandum provide unhelpfully bland remarks that do not assist in the resolution of the ambiguity of this provision. In my view neither interpretation contended for would lead to an absurd result. Given the Act is a piece of remedial legislation it appears well settled that its provisions should be interpreted liberally: see generally DCP Pearce & RS Geddes Statutory Interpretation in Australia 6th Edition Butterworths 2006 at 9.3 and the authorities referred to therein.
- [70]In that regard, I am mindful that the terms of ss 150 and 151 reflect the principle addressed for the declaration of protection by special measures for witnesses provided for more generally in Pt 2 Div 4 of the Evidence Act. Sections 150 and 151 broadly appear to add nothing to the machinery generally provided by the Evidence Act except the temporal convenience of incorporation of those measure provisions relevant to domestic violence applications in the DV Act.
- [71]It follows that I prefer the interpretation which provides a protected witness for the purpose of the Act is not only an Aggrieved but also an associate of the person who is the aggrieved who is named in the application. Whether or not that associate is also nominated in the application.
- [72]Upon that basis, I reject the Appellant’s submissions concerning Ms D’s nomination as protected witness. It was open to the Magistrate to declare her a protected witness and nominate measures for the taking of her evidence as the Magistrate did. Prima facie she was a protected witness although upon hearing her evidence I am satisfied that in fact she was not. In my view, the measures provided were reasonable and they constitute a routine practice of the Courts. They did not give rise to any injustice to the Appellant.
- [73]Concerning the Aggrieved, she is of right entitled to the provision of protected measures where the circumstances justify it.
- [74]The Appellant complains that concerning cross-examination of the Aggrieved the Magistrate failed to apply the mandatory process applicable to the cross-examination of a protected witness by a respondent not represented by a lawyer.
- [75]Implicitly the Magistrate was satisfied of the terms of s 151(2) in ordering the appellant not cross-examine the aggrieved. Section 151(4) proceeds to provide:
“If the court makes an order under this section, the court must –
- inform the respondent that the respondent may not cross-examine the protected witness in person; and
- require the respondent to advise the court by a stated date or time whether the respondent –
- has arranged for a lawyer to act for the respondent; or
- has arranged for a lawyer to act for the respondent for cross-examination of the protected witness; or
- has decided not to cross-examine the protected witness.”
- [76]The Appellant complains that the Magistrate made numerous attempts to progress the matter without permitting cross-examination of the Aggrieved. It was contended that this was in the face of repeated statements by the Appellant that he wished to engage legal representation to undertake that cross-examination. He submitted the Magistrate’s failure prevented him from appropriately providing or the cross-examination of a key witness.
- [77]It is plain from the transcript that the Magistrate concluded that the cross-examination of the aggrieved by the Appellant would be likely to cause her to suffer emotional harm or distress and/or she would be so intimated as to be disadvantaged as a witness. Her conclusion was based on the demeanour and general conduct of the proceeding by the Appellant as well as considering the wishes of the Aggrieved. Following her reaching that conclusion she informed the Appellant that he would not be permitted to cross-examine the Aggrieved in person. While it is correct that the Magistrate did not initially engage the mandatory process provided by s 151(4)(b) that was the ultimate result. It is correct that the Magistrate did not require the appellant to advise her by a stated date or time of his relevant election. The matter was debated before ultimately the proceeding was adjourned in order to permit the Appellant to have a lawyer available for the purpose of cross-examining the Aggrieved on a subsequent occasion. That occurred approximately two weeks later. Having regard to the issues and complexity of the case that would have allowed more than sufficient time to enable a competent lawyer to prepare for cross-examination of the Aggrieved in this instance. It follows that while there has been a failure to comply with the mandatory requirements of the Act that failure did not give rise to any manifest injustice.
Ground 20 error in proceedings concerning appeal
- [78]For reasons addressed in paragraphs 18 to 20 above the processes adopted concerning this appeal have been addressed. This complaint requires no further comment.
Ground 21 adducing fresh evidence
- [79]For reasons explained in paragraph [6] above it is acknowledged that the court possesses a power to receive further evidence as to questions of fact on “special grounds”. As noted earlier, although an appellate court may receive further evidence of matters that occurred before the trial, the power to admit such evidence is exercised sparingly because of the public interest in the finality of litigation. In Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 the High Court nominated relevant considerations to include:
- The evidence could not by reasonably diligence have been obtained at the trial;
- Had it been adduced at the trial an opposite result was likely; and
- The new evidence is credible.
- [80]In this case the appellant contends that he was unlawfully assaulted by the Aggrieved. Furthermore he says that he has been charged with a criminal offence based upon the Aggrieved’s allegations against him. He submits that but for the presumption of innocence and right to silence he would have called and given evidence of those matters. He wants to put this evidence before this court.
- [81]In ground 6 & 8 above I have addressed his complaint concerning the pursuit of this application under the DV Act and refusal of its stay pending the outcome of criminal proceedings. That matter aside, the defendant’s version of events was before the Magistrate. While it is correct that his version was neither sworn nor tested, the fact remains it was available to the Magistrate and considered by her in determining the application. She considered and exercised her discretion in favour of the Aggrieved in her determination of the application. That course was open to her and for reasons addressed above. I am satisfied that there was no impermissible exercise of her discretion on that point. Given the different standard of proof that applies in a civil proceeding to a criminal proceeding and the operation of s 145 DV Act which permitted the Magistrate to inform herself in any way she considered appropriate and that she was not otherwise bound by the rules of evidence or any practices or procedures applying to courts of record it was open to her to act upon that material in any manner she thought appropriate notwithstanding its prima facie admissibility.
- [82]It follows in my view that special grounds have not been made out for the admissibility of further evidence on the appeal.
Disposition
- [83]For reasons related to the deficient consideration of whether the making of a DVO was desirable or necessary in respect of either the Aggrieved or Ms D. The appeal must be allowed.
- [84]In my view, there is not sufficient evidence to demonstrate the making of a DVO in either desirable or necessary in respect of either premise. Given the evidence and considering the matters noted in paragraphs 30 – 32 above. I do not consider a protection order is necessary or desirable, especially now four years following these events with no further interaction between the parties.
- [85]It follows an order ought not have been made.
- [86]On appeal s 169(1)(c), provides that in deciding an appeal the Appellant court may set aside the decision and substitute another decision. Accordingly, I will order that the decision be set aside and that the original application be dismissed.
Orders
In this case I order
- Appeal allowed;
- The decision of 16 November 2020 making Domestic Violence order pursuant to s 37 DFVPA in respect of each of the Ms J and Ms D be set aside.
- The primary application be dismissed.