CD v Queensland Police Prosecutions [2024] QDC 150 (2024) 4 QDCR 244

DISTRICT COURT OF QUEENSLAND CITATION: CD v Queensland Police Prosecutions [2024] QDC 150 PARTIES: CD (appellant) v QUEENSLAND POLICE PROSECUTIONS (respondent) FILE NO: BD2520/24 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 18 September 2024 DELIVERED AT: Brisbane HEARING DATE: 12 September 2024 JUDGE: Smith AM DCJA ORDER: 1. The application for a stay is dismissed. 2. The appeal is struck out. 3. I will hear the parties on the question of costs. CATCHWORDS: FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – where the appellant applies for a stay of an order made in the Magistrates Court – where the appellant seeks to appeal a decision made in the Brisbane Magistrates Court to not permit him to cross examine the aggrieved in person – whether the District Court has jurisdiction to deal with appeals against interlocutory rulings – whether appropriate to fragment proceedings HUMAN RIGHTS – whether the human rights provisions should be used to interpret section 164 of the Domestic Violence and Family Protection Act 2012 (Qld) LEGISLATION: District Court Act 1967 (Qld) s 69 Domestic Violence and Family Protection Act 2012 (Qld) ss 3, 4, 150, 151, 164 Human Rights Act 2019 (Qld) ss 4, 31, 48 Justices Act 1886 (Qld) s 222 CASES: Coulter v Ryan [2006] QCA 567; [2007] 2 Qd R 302, considered Frugtniet v The State of Victoria [1997] HCA 44; (1997) 71 ALJR 1598, applied -- 1 of 9 -- 2 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623, cited Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, considered Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365, cited McEwan v Clark [2023] QCA 120, considered Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1, applied Nona v R [2013] ACTCA 39; (2013) 236 A Crim R 28, cited Obeid v R [2016] HCA 9; (2016) 90 ALJR 447, applied Owen v Cannavan [1995] QCA 324 considered R v Forsyth [2013] ACTSC 179; (2013) 281 FLR 62, cited Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, applied Schneider v Curtis [1967] Qd R 300, considered Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192, applied Storry v Australian Financial Security Authority [2024] QCA 55, considered COUNSEL: Self-represented appellant Solicitors for the respondent SOLICITORS: Self-represented appellant Queensland Police Service Legal Unit for the respondent Introduction [1] The appellant, CD appeals a decision made in the Brisbane Magistrates Court on 5 September 2024 wherein it was decided by the Magistrate pursuant to section 151(3) of the Domestic and Family Violence Protection Act 2012 (Qld) (“the DFVP Act”), that Ms KS, the aggrieved, could not be cross examined by the appellant in person. [2] The appellant submits that the decision should be stayed pending the appeal. He submits that the Magistrate erred in reaching his decision. It is not necessary at this point to descend into the particulars as to why it is alleged the Magistrate erred for the reasons which follow. Jurisdiction [3] A preliminary issue arose on whether this Court has jurisdiction to deal with this appeal. Submissions [4] The respondent submits that the court has no jurisdiction to hear this appeal. It submits that the right of appeal is set out in section 164 of the DFVP Act. In this matter the appeal is not over the making or the refusal to make an DV order. The section does not permit an appeal in respect of interlocutory decisions. [5] The appellant submits that section 164 of the DFVP Act does not exclude an appeal against interlocutory decisions. He further submits that one should consider the -- 2 of 9 -- 2 Human Rights Act 2019 (Qld) (“HRA”) when interpreting this provision. He further submits that where an abuse of process is alleged the court has the power to deal with this matter. He alleges the matter is being unlawfully relitigated. He further submits section 69 of the District Court Act 1967 (Qld) gives jurisdiction to the court to hear the matter. Discussion [6] It is necessary to examine the relevant provisions. [7] Section 150 of the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVP Act”) provides: “150 Protected witnesses (1) This section applies when any of the following persons (each a protected witness) is to give, or is giving, evidence in a proceeding under this Act— (a) the aggrieved; (b) a child; (c) a relative or associate of the aggrieved who is named in the application that relates to the proceeding. Note— See the Evidence Act 1977, part 2, division 6 for provisions that apply to protect the persons mentioned in subsection (1) if they give, or are to give, evidence in criminal proceedings for an offence against part 7. (2) The court must consider whether to make any of the following orders— (a) that the protected witness give evidence outside the courtroom and the evidence be transmitted to the courtroom by means of an audio visual link; (b) that the protected witness give evidence outside the courtroom and an audio visual record of the evidence be made and replayed in the courtroom; (c) while the protected witness is giving evidence, that a screen, one-way glass or other thing be placed so the protected witness can not see the respondent; (d) while the protected witness is giving evidence, that the respondent be held in a room apart from the courtroom and the evidence be transmitted to that room by means of an audio visual link; (e) that the protected witness be accompanied by a person approved by the court for the purpose of providing emotional support; -- 3 of 9 -- 3 (f) if the protected witness has a physical or mental disability—that the protected witness gives evidence in a particular way specified by the court that will, in the court’s opinion, minimise the protected witness’s distress; (g) any other alternative arrangement the court considers appropriate. (3) However, if the protected witness is a child, the court must make at least 1 of the orders mentioned in subsection (2)(a), (b), (c) or (d). (4) Any place outside the courtroom where a protected witness is permitted to give evidence under this section is taken to be part of the courtroom while the witness is there for the purpose of giving evidence.” [8] Further s 151 of the DFVP Act provides: “151 Restriction on cross-examination in person (1) This section applies if— (a) a protected witness gives evidence in a proceeding under this Act; and (b) a respondent in the proceeding wishes to cross- examine the protected witness; and (c) the respondent is not represented by a lawyer. Note— See the Evidence Act 1977, part 2 , division 6 in relation to the cross-examination of protected witnesses in proceedings for an offence against this Act. (2) 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— (a) suffer emotional harm or distress; or (b) be so intimidated as to be disadvantaged as a witness. (3) However, if the protected witness is a child, the court must make an order that the respondent may not cross- examine the protected witness in person. (4) If the court makes an order under this section, the court must— (a) inform the respondent that the respondent may not cross-examine the protected witness in person; and -- 4 of 9 -- 4 (b) require the respondent to advise the court by a stated date or time whether the respondent— (i) has arranged for a lawyer to act for the respondent; or (ii) has arranged for a lawyer to act for the respondent for cross-examination of the protected witness; or (iii) has decided not to cross-examine the protected witness.” [9] It seems clear in this case that the Magistrate exercised his discretion to prevent the cross examination of the witness by the appellant in person under these provisions. He did not make a decision to make a domestic violence order or to refuse to make one. [10] Section 164 of the DFVP Act provides: “164 Who may appeal A person who is aggrieved by any of the following decisions of a court may appeal against the decision— (a) a decision to make a domestic violence order; (b) a decision to vary, or refuse to vary, a domestic violence order; (c) a decision to refuse to make a protection order; (d) if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.” [11] It may be seen then that a person may only appeal a decision to make a domestic violence order; to vary or refuse to make a domestic violence order; to refuse to make a protection order and a decision to refuse to make a temporary protection order. [12] It is my respectful opinion that the order sought to be appealed does not fall within s 164 of the DFVP Act. There appears to be no right of appeal against interlocutory decisions. [13] The powers exercisable by the District Court are conferred by statute. As was said in SBC v Chief Executive Department of Safety Child1 rights of appeal are creatures of statute and any right of appeal depends on the particular statutory provision. [14] There are some similarities here with the Justices Act 1886 (Qld). [15] In Schneider v Curtis2 the full court held that an appeal under s 222 of the Justices Act lies only from an order disposing of a complaint, i.e. by dismissing it or entering 1 [2007] QCA 318; [2008] 1 Qd R 474 at [18]. 2 [1967] Qd R 300. -- 5 of 9 -- 5 a conviction and imposing a penalty. An appeal does not lie from an order made during the course of the proceedings. [16] Schneider has been applied a number of times in Queensland. [17] In Owen v Cannavan,3 the applicant had failed in an application for a magistrate to remit summary proceedings from Brisbane to Gympie. The applicant appealed this decision under s 222 of the Justices Act. It was held that the appeal was incompetent. [18] Further, in Coulter v Ryan,4 it was held that the right of appeal was limited to one against orders made by way of final disposition of a complaint. There was no appeal against the refusal of a costs order on an adjournment. [19] More recently in McEwan v Clark,5 the Court of Appeal held that the relevant principle applied to a refusal to delist a committal hearing. [20] Finally, in Storry v Australian Financial Security Authority,6 an appeal against a refusal to adjourn a matter was struck out as there was no jurisdiction in the Court to hear the appeal. [21] Leaving aside the similarities with the Justices Act the courts have long said that it is only exceptional circumstances which might justify a higher court to interfere in lower court proceedings so that it would fragment (criminal) proceedings. This much is clear from Sankey v Whitlam 7, Obeid v R8 and Frugtniet v The State of Victoria9. [22] I consider these principles apply in the present case. The DFVP Act provides protection to the alleged victims of domestic violence. To my mind it is crucial that these matters proceed expeditiously without interference from the higher courts unless absolutely necessary. Indeed my view is supported when one reads the relevant provisions of the Act. [23] Section 3 of the DFVP Act provides: “3 Main objects (1) The main objects of this Act are— (a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and (b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and (c) to ensure that people who commit domestic violence are held accountable for their actions. 3 [1995] QCA 324. 4 [2006] QCA 567; [2007] 2 Qd R 302. 5 [2023] QCA 120. 6 [2024] QCA 55. 7 [1978] HCA 43; (1978) 142 CLR 1 at pp 25-26. 8 [2016] HCA 9; (2016) 90 ALJR 447 at [15]-[23]. 9 [1997] HCA 44; (1997) 71 ALJR 1598 at p 1602. -- 6 of 9 -- 6 (2) The objects are to be achieved mainly by— (a) allowing a court to make a domestic violence order to provide protection against further domestic violence; and (b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and (c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.” [24] Section 4 of the DFVP Act provides: “4 Principles for administering Act (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. (2) Subject to subsection (1), this Act is also to be administered under the following principles— (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised; (b) 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; (c) 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; (d) 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 • Children • Aboriginal peoples and Torres Strait Islander peoples • people from a culturally or linguistically diverse background -- 7 of 9 -- 7 • people with disability • people who are lesbian, gay, bisexual, transgender or intersex • elderly people (e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection— (i) the person who is most in need of protection in the relationship should be identified; and (ii) only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other; (f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.” [25] As is noted the matter should be conducted in such a way as to minimise disruption to the life of the alleged victim. This contemplates a proceeding without unnecessary delay. [26] In this particular case the effect of the appeal is to fragment the domestic violence proceedings in the Magistrates Court and has the potential effect of delaying the proceedings. [27] As to the appellant’s argument that the HRA applies it is true that there is a right to a fair hearing under section 31. There are also other rights which might be of relevance. [28] The HRA “does not give the human rights set out in it any freestanding operation”.10 However, the HRA does state that the human rights the parliament specifically seeks to protect and promote and sets out the detailed operative provisions by which those rights are to be protected and promoted in s 4. [29] Section 4 of the HRA requires the court to interpret statutory provisions to the extent possible consistent with their purpose in a way compatible with human rights. This is consistent with section 48 of the HRA.11 [30] However this provision does not allow for a rewriting of a statutory provision where the meaning is clear. Rather it applies where different constructions of the statute are open.12 10 R v Forsyth [2013] ACTSC 179; (2013) 281 FLR 62 at [31]- [33]; Nona v R [2013] ACTCA 39; (2013) 236 A Crim R 28 at [95]. 11 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623 at [211]. 12 Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1 at [49]-[51], [169]-[171], [565]-[566] applied in Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365 at [191]-[199]. -- 8 of 9 -- 8 [31] In my respectful view the meaning of section 164 is clear. It is not open to doubt. The HRA does not assist in its interpretation. The HRA certainly does not allow for different and new categories of appeal. [32] As to section 69 of the District Court Act this provision relates to the powers given to the District Court in civil cases. This is clear from the heading to Part 5 and division 1. This section has nothing to do with Domestic Violence proceedings. As was noted in Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd13 the District Court has a defined and limited jurisdiction and its powers are limited by statute. [33] Finally, I turn to the argument raised by the appellant as to an abuse of process. Unlike the Supreme Court, the District Court does not have a general supervisory jurisdiction over the Magistrates Court. Its powers as I have said are limited by statute. The power to control a court’s processes to prevent an abuse of process means that the District Court has an inherent power in hearing cases brought within its jurisdiction to prevent abuses of process such as granting stays and giving directions designed to avoid injustice.14 There is no power in this court to entertain an appeal against any interlocutory ruling that there has been no abuse or process unless the decision involves any of the matters mentioned in section 164 of the DFVP Act. [34] Any error alleged in the making of a section 151(3) order can be argued as a ground of appeal if the Domestic Violence order is finally made. Conclusion [35] Having considered all matters I have concluded there is no right in the appellant to appeal under s 164 of the DFVP Act and further the appeal brought would be such as to fragment the domestic violence proceedings. [36] I am satisfied there is no jurisdiction in this Court to hear the appeal. Orders [37] In those circumstances I make the following orders: 1. The application for a stay is dismissed. 2. The appeal is struck out. 3. I will hear the parties on the question of costs. 13 [1991] 1 Qd R 192. 14 See Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at pp 25, 56, 74. -- 9 of 9 --