BPG v Commissioner of Police [2024] QDC 222

DISTRICT COURT OF QUEENSLAND CITATION: BPG v Commissioner of Police [2024] QDC 222 PARTIES: BPG (Appellant) V COMMISSIONER OF POLICE (Respondent) FILE NO/S: 1955/24 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 13 December 2024 DELIVERED AT: Brisbane District Court HEARING DATE: 15 November 2024 JUDGE: Heaton KC DCJ ORDER: 1. The appeal is allowed. 2. Set aside the orders made by the magistrate. 3. Remit the applications to the Magistrates Court at Brisbane for rehearing before a different magistrate. 4. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL ALLOWED – Justices Act 1886 – section 222 – Procedural fairness – Denial of nature justice – where the appellant was denied natural justice – where the appellant had not yet been granted funding for cross-examination – where the learned magistrate failed in exercising their discretion to adjourn the hearing. COUNSEL: The appellant appeared on his own behalf. S Taylor (legal officer) for the first respondent. K Fuller for the second respondent. -- 1 of 8 -- [1] The appellant appeals pursuant to s.164 of the Domestic and Family Violence Protection Act 2012 (DFVP Act) against the decision of the learned magistrate on 25 June 2024 to issue a domestic violence order again him on application made by Constable Aaron Morrison of the Queensland Police Service. [2] By Notice of Appeal filed on 17 July 2024, he promotes a number of grounds in support of the appeal. Firstly, he contends that he suffered a miscarriage of justice by reason of the police refusing to disclose to him the body worn camera footage relating to an earlier occasion when police attended at the home that he shared with the complainant/aggrieved, Ms M, at which time no action was taken by police to issue a police protection notice (PPN) pursuant to s.101 of the DFVP Act (Ground 2). [3] He further contends that the magistrate erred in concluding that an act of domestic violence had occurred (Ground 6), that it was necessary or desirable for a domestic violence order to be made (Ground 7), and further, that the learned magistrate erred in not adjourning the application (Ground 8). [4] The other grounds pleaded in the Notice of Appeal were not pressed by the appellant, as he accepted that his contentions on this appeal were reflected in the grounds just stated. The remaining grounds were therefore struck out with his agreement. [5] The appeal is by way of rehearing on the record and subject to the limitations of an appellate court in that role.1 The court ought not interfere with the decision of a magistrate to make an order of that nature unless it is affected by error of principle, there has been a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice.2 Background [6] It is necessary to understand something of the background to this hearing. On 13 February 2024, the Queensland Police Service brought an application seeking to protect Ms M from the appellant. The following day, he brought an application seeking an order protecting him from her. Those applications were listed for hearing on 25 June 2024. 1 s.168 Domestic and Family Violence Protection Act 2012. 2 House v The King (1936) 55 CLR 499 at 504,505. -- 2 of 8 -- [7] In anticipation of that hearing, on 13 June 2024, Ms M brought an application to prevent the appellant from cross-examining her at that hearing pursuant to s.151 of the DFVP Act. The order of the magistrate was that the appellant was prevented from cross- examining Ms M at the hearing. It was further ordered that the appellant was to advise the Court by 20 June 2024 whether he had arranged for a lawyer to act on his behalf to conduct the cross-examination, or alternatively, that he had decided that he would not cross-examine Ms M at the hearing. [8] At 4.24pm on 20 June 2024, the appellant, in an endeavour to comply with the magistrate’s order, emailed the Court (copied to the police and Legal Aid) and advised that he had applied for legal aid funding for a lawyer to conduct the cross-examination of Ms M, but he had not yet heard whether his application was successful. [9] The hearing on 13 June 2024 was only 12 days prior to the hearing of the application on 25 June 2024. At the commencement of that hearing, as per his correspondence of 20 June 2024, he advised the presiding magistrate that he had applied for legal aid for the purpose of cross-examining Ms M, but that he hadn’t yet heard whether his application for aid would be approved. It was clear therefore that the appellant wished to cross- examine Ms M in relation to the issues in the application. [10] The appellant then moved to make other submissions in support of his contention of a denial of procedural fairness resulting from the failure of the police to disclose the body worn camera footage that he had tried to obtain from them. If successful, he submitted that the hearing should not proceed on that day. His contentions in relation to that issue were, however, not successful. [11] He then formally made application for the hearing to be adjourned to enable him to obtain Legal Aid funding for a solicitor to conduct the cross-examination of Ms M. [12] In response the magistrates said the following; “…we’ve had too much time for that. That time has passed, I’m afraid. The matter is set down for hearing today and it will proceed to hearing today. And I accept there are some constraints on you – legislative constraints that have overridden the normal presumption in relation to your ability to cross-examine. -- 3 of 8 -- That’s – I accept. But that is the unfortunate position you find yourself in. Anything further?” [13] The magistrate’s only discernible reason for refusing the adjournment application was his view that the time for an adjournment had passed and that as the matter was listed for hearing that day it would proceed that day. As I read the transcript, the reasons of the magistrate do not disclose any actual reason of any substance as to justify the refusal of the adjournment beyond perhaps the convenience to the court calendar. There was no suggestion that the appellant had delayed seeking legal aid or that he was somehow attempting to thwart the proper progress of the matter. Nor was there any exploration of the efforts undertaken so as to make any determination as to the reasonableness of it. The magistrate seems to convey that the appellant was in an unfortunate, but somewhat legislatively futile position in relation to his capacity to challenge the evidence to be relied upon in support of the application for a domestic violence order. That was not the case. He was entitled to have Ms M cross-examined, just not by him. [14] Consequently, the prominent feature in this appeal is not so much whether the evidence before the court was sufficient to support the making of the order (about which I express no concluded view), it is instead that the appellant was precluded from presenting all of the evidence he considered relevant to the issue because of circumstances not entirely of his making. In that regard, he contends that he was denied natural justice. Consideration [15] At the application on 13 June 2024, the appellant was, and remains, self-represented. The twelve days available to him were not sufficient for him to secure funding to engage a lawyer to conduct the cross-examination of Ms M which he considered important to the presentation of his case at the hearing. [16] In the lead up to this hearing, the appellant had encountered other obstacles to gathering the evidence which he sought to rely upon in response to the application for a protection order. In short, his overarching contention is that it is he, and not the complainant, that is in need of protection, and consequently the hearing on 25 June 2024 involved both an application for a protection order by the police naming the appellant and the respondent, and also an application made by the appellant for a protection order naming Ms M as the respondent. It was necessary, pursuant to s.4(2)(e) of the DFVP Act, for the magistrate -- 4 of 8 -- to determine who was in most need of protection. The ability to challenge the evidence of Ms M was therefore vital to the proper presentation of the appellant’s case. [17] To respond to the police application and to advance his own application, the appellant attempted to obtain evidence from the police relevant to an occasion about eight months earlier when police attended his home in response to a complaint by Ms M. On that occasion, police apparently concluded that the appellant was not a perpetrator, but more likely a victim. The appellant however, at that time, did not seek to make a complaint against Ms M. [18] It is fundamental to our legal process that a party is given the opportunity to be heard in the ordinary sense of natural justice. It is a fundamental rule of the common law doctrine of natural justice that, generally speaking, when an order is to be made which will deprive a person of some right or interest or place constraints upon their freedom of movement or other entitlements, they should be given a meaningful opportunity of replying to it.3 A court which operates on the version advanced by only one party, risks arriving at an unsound decision and thus, injustice.4 [19] Whilst the appellant was particularly concerned about the history of this matter and in particular what he considers to be an injustice arising from the refusal of the police to disclose the footage he sought from them, ultimately, it is the refusal of the adjournment which, in my respectful view, has resulted in an injustice to the appellant that necessitates the matter being remitted back to the Magistrates Court for a rehearing. It was not unreasonable for him to seek an adjournment, in fact, it was made necessary by a combination of the order of 13 June 2024, and his inability, despite what I conclude to be reasonable effort, to secure the legal representation that he required in order to properly present his case and challenge the case against him. There is no discernible reason for the refusal of the adjournment which was therefore, in my view, an error of discretion, whereby the refusal resulted in an injustice to the appellant. [20] The injustice in this case was compounded by his inability to challenge Ms M in relation to the circumstances of their domestic relationship and what he alleged to be acts of 3 Kioa v West (1985) 159 CLR 550 per Mason J at 582. 4 See Heydon J in International Finance Trust Co v NSW Crime Commission (2009) 240 CLR 319. -- 5 of 8 -- domestic violence committed by her against him. The issues to be considered in the hearing of these cross-applications were readily apparent. [21] In response to this appeal, it is submitted that the decision to make a domestic violence order was based upon admissions made by the appellant in his evidence of occasions when he pulled her hair twice and pushed her out of the house once. It is submitted that therefore, the lost opportunity to cross-examine Ms M was of no consequence to the ultimate determination in this case. I cannot accept that contention. The appellant’s evidence was that those occasions were in response to acts by her, and, in the context of the abuse he experienced from her, they were justified and gave rise to no need for her to be protected from him. He further submitted that, properly viewed, the context of this relationship was such that he was the victim and not her, and that therefore it was in fact ‘necessary or desirable’ that an order be made naming him as the aggrieved, that is, he was the person most in need of protection. [22] Two matters of critical importance arise from the proper reading of the decision of the magistrate. Firstly, the determination favouring the granting of the protection order in favour of Ms M was made not just on the basis of the admissions to conduct amounting to domestic violence by the appellant, but also on the basis of the evidence of acts of domestic violence from Ms M. Secondly, as already noted, Ms M’s evidence was assessed by the magistrate without the benefit of any cross-examination, despite the importance of that factor being recognised in these terms; “The appellant is labouring under a disadvantage to the extent that the evidence admitted in support of Constable Morrison’s application is largely uncontested. This is so because he has not been able to cross-examine the primary witness in the application, Ms M.” [23] This was a clear case in which there were contradictory accounts as to the nature of the relationship and the conduct of the parties within it. The appellant gave evidence in the hearing and strongly rejected the contentions of Ms M. Ultimately his contentions were rejected by the learned magistrate, however, the assessment of the evidence and the conclusion the magistrate reached, was without the benefit of cross-examination of Ms M. The magistrate’s assessment must have been a consequence of his favouring the evidence of Ms M over that given by the appellant. That necessarily involved an -- 6 of 8 -- assessment of credit. However, to the extent that the magistrate’s conclusion was based on an assessment of Ms M’s credit, the magistrate was himself labouring under a disadvantage caused by the lack of cross-examination and a genuine ability to meaningfully assess the merits of the contentions advanced by the appellant in that context. [24] That was especially so in this case in that, as I read the transcript, the nature of the cross- examination of him was such as to seek to diminish the nature of the abuse that the appellant claimed he experienced at the hands of Ms M, further compounding the injustice he suffered as a result of his inability to have the magistrate consider the evidence of Ms M with the benefit of cross-examination. [25] The appellant must succeed on this ground, and therefore, it is not necessary to determine the merits of his other grounds and, in any event, I anticipate that in the time before this matter comes on again, he can obtain the footage he seeks, either by disclosure or subpoena, and any determination as to the relevance of it to the issue in the application for a domestic violence order can be that of the magistrate hearing the application. [26] Further, whether or not the magistrate rehearing the matter concludes that an act of domestic violence occurred and whether it is necessary or desirable that a domestic violence order be made (the other errors alleged in this appeal), will be determined based on the evidence presented at that hearing, which, I anticipate will be conducted with the assistance of counsel to cross-examine the aggrieved, Ms M. Conclusion [27] In my view, it was critical in this case for the appellant to have the opportunity to cross- examine Ms M. The order precluding him from personally doing so was made only 12 days prior to his hearing. In the interim, he was not able reasonably to secure legal representation for the purpose of conducting the cross-examination of Ms M, despite his desire, and efforts to do so. The magistrate’s reasons do not reveal any proper basis for the refusal of the appellant’s application to adjourn the hearing, but do disclose an acknowledgement of the significance of the lost opportunity to cross-examine, given the issues in the case. -- 7 of 8 -- [28] The appellant’s appeal must succeed on the basis of what he has pleaded as Ground 8. In the circumstances, I consider that the refusal of his application for an adjournment resulted in a denial of procedural fairness and a miscarriage of justice in this case. Orders: 1. Appeal is allowed. 2. Set aside the orders made by the magistrate. 3. Remit the applications to the Magistrates Court at Brisbane for rehearing before a different magistrate. 4. No order as to costs. -- 8 of 8 --