DJS v A Police Officer & Anor [2021] QDC 148

DISTRICT COURT OF QUEENSLAND CITATION: DJS v A Police Officer & Anor [2021] QDC 148 PARTIES: DJS (Appellant) V A POLICE OFFICER (First Respondent) And NKY (Second Respondent) FILE NO: 292/2021 DIVISION: Appeal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Sandgate (Magistrate Cornack) DELIVERED ON: 18 June 2021 (ex-tempore) DELIVERED AT: Brisbane HEARING DATE: 18 June 2021 JUDGE: Reid DCJ ORDER: 1. Appeal allowed. 2. Application for a protection order dismissed. 3. No order as to costs between the appellant and the second respondent. 4. First respondent to pay the appellant’s costs of the appeal fixed by agreement in the sum of $18, 000. CATCHWORDS: DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where appeal initiated under s 164 of the Domestic and Family Violence Protection Act 2012 – whether appellant denied procedural fairness – whether learned Magistrate at first instance erred in holding that Protection order necessary or desirable to protect second respondent from domestic violence – whether learned Magistrate at first instance erred in imposing ouster condition – whether conduct of the learned Magistrate constituted miscarriage of justice – where issues of credit in respect of both parties – where issues of motive in respect of second -- 1 of 8 -- 2 respondent – whether Magistrate failed to consider motive – where appeal allowed LEGISLATION: Domestic & Family Violence Protection Act 2012 (Qld) s 37, 164 CASES: BJH v CJH [2016] QDC 27 COUNSEL: Ms K Hillard with Ms A Cousen for the appellant Mr J. Paratz (Legal Officer) for the first respondent Mr G Kalimnious for the second respondent SOLICITORS: Aitken Whyte Lawyers for the appellant QPS Legal Unit for the first respondent Mr G Kalimnious for the second respondent Introduction [1] In this matter the appellant appeals pursuant to the provisions of s 164 of the Domestic & Family Violence Protection Act against the making of a protection order made for a period of eight months pursuant to s 37 of the Act. The application was brought by the first respondent. The decision appealed from was made on 25 January 2021 by Magistrate Cornack in the Sandgate Magistrates Court, naming the second respondent as the aggrieved and her adult daughter and her mother as associates of the aggrieved also protected by the protection order. [2] The approach to such a matter was set out by Rackermann DCJ in BJH v CJH [2016] QDC 26 as follows: “This appeal is brought pursuant to s 164 of the Act. Under s 169, in deciding this appeal, the court can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court. The effect of s 168, is that the appeal proceeds by way of rehearing. It is appropriate that this court observe the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. This court should interfere with the order made below only where it is the result of some identified legal, factual or discretionary error. In so far as discretionary considerations are concerned, the appropriate approach is as stated in House v The King. -- 2 of 8 -- 2 “If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”” [3] It is unnecessary to set out the conditions of the protection order other than to observe that the respondent was not to commit domestic violence and was prohibited from remaining at the aggrieved’s place of residence at Taigum. Because of the attitude I have formed it is not necessary to go through the facts of the case in significant detail other than to note that in her judgment the learned Magistrate appears to have had concerns about the credit of both the appellant and second respondent. [4] For example, her Honour noted that in 2019 police were called to the couple’s home to investigate an allegation of a disturbance and were there given a diary by the second respondent. At the time she said to police “I’m just going to give you my diary so that you can see what’s happening here”. Upon considering the contents in the diary the police brought into an application, inter alia, for an ouster order. The second respondent appeared somewhat agitated at that outcome and ultimately, in the words of the learned Magistrate: “conceded that the diary was more about her feelings and it wasn’t accurate or reflective of evidence that she’d be prepared to give under oath in a court room”. As a result, in December 2019 the application by the police was dismissed. Subsequently the subject offence unfolded in 2020. [5] The learned Magistrate described the resolution of the question of whether or not she should accept the evidence of the appellant or second respondent as “very difficult because it was highly conflictual relationship…there was a lot of emotion.” She said: “I can’t exactly find who’s telling exactly the precise events because it was very distressing and everyone was upset.” She also said: “So it’s very difficult for this Court to work out…what acts of domestic violence are involved...” -- 3 of 8 -- 3 [6] Ultimately her Honour found that the appellant had committed two acts of domestic violence, in pushing the second respondent over and in taking the daughter’s phone from her and not giving it back when he was asked to do so. [7] Curiously, she said this in respect of the issue of the credit of witnesses: “I don’t accept (the appellant) as a witness to prefer over (the second respondent) and I don’t accept (the second respondent) as a witness to be preferred over (the appellant), so that makes it difficult.” [8] Nevertheless, as I have said, she ultimately found two acts of domestic violence and then said: “The difficult question to decide then, is whether it’s necessary or desirable for a protection order to be made.” [9] Her Honour said: “That involves this Court making an assessment of the risk of further domestic violence.” On that basis, her Honour determined to make an order only for the duration of the current lease on the property where they resided. She did so because she concluded that until the appellant moved out of the home it was necessary for the second respondent to have some protection. [10] A difficulty with that finding is that at the time of the hearing the appellant, who was earlier subjected to the ouster order, had in fact moved out. [11] It can be seen that necessarily her Honour’s judgment involved issues of credit of both the appellant and second respondent. [12] In the proceedings, counsel for the appellant sought to establish that there was a motive for the second respondent, and for her daughter, to give false evidence in the proceedings. It was submitted that this arose as a result of the circumstances of the second respondent’s visa which allowed she and her daughter to reside in Australia. [13] The appellant and second respondent had met online in September 2013 and in March 2014 the second respondent relocated to Australia. Their relationship commenced at that time. Whilst both parties are of Indian descent, the appellant is an Australian citizen. The parties had entered into a civil partnership in 2017. During 2018 he and the second respondent made three applications for a partner visa, all of which were rejected. On 25 March 2020, they were contacted by the Department of Home Affairs’ Immigration section to inform them that the second respondent had become eligible to apply for her permanent partner visa. The correspondence gave the parties 28 days -- 4 of 8 -- 4 to prepare their application. As part of the application, the parties were required to provide a statutory declaration signed by the appellant confirming they were in a genuine relationship. After receiving the correspondence regarding the application for a permanent partner visa, the second respondent had a conversation with the appellant about their relationship status and provided a statutory declaration for him to execute, but he would not respond. It was suggested to her in cross-examination that because the appellant would not sign the statutory declaration she made an allegation to the Department saying that she was suffering from domestic violence. She denied the suggestion. [14] There were 2 ways for the second respondent to be successful with her application for her visa, in circumstances where the parties had separated. She could either: (a) obtain a domestic violence order or protection order made by a Court; or (b) provide the Department of Immigration with three statutory declarations confirming that there had been domestic violence between the parties while they were in a domestic relationship. [15] It can be seen that the need for a domestic violence order could be said to be a strong motive for her to give the evidence she did in the Court below. That submission was made in [62 – 72] of the appellant’s written submissions below under the subheading “MOTIVE”. Ultimately at [72] of the submission counsel who appeared below for the appellant said that the second respondent and her daughter had a clear motive to lie in order for a protection order to be made so as to allow them to remain in Australia. The purpose of the submission could not have been clearer. [16] When the second respondent was being so cross-examined about the issue of motive, the police prosecutor objected to the cross examination on the grounds of relevance. Counsel for the appellant submitted that: “The relevance of that question is that the motivation behind making this application, she’s been given advice that she requires three statutory declarations if an order is not made … (that’s) what I say explains the relevance.” [17] Unfortunately, the learned Magistrate made no ruling in respect of the objections. -- 5 of 8 -- 5 [18] The same matter was again raised where the second respondent was asked what she had done as a result of advice she had received from her lawyer about gathering evidence concerning domestic violence. She answered, “we are only properly doing what was … being asked by the Department of Immigration”. She was then asked about statutory declarations. Again the police prosecutor objected on the grounds of relevance. Again, the learned Magistrate made no ruling about the matter but merely asked the second respondent about the filming of the appellant by her daughter, a matter unrelated to the issue of motive there under consideration. [19] It would seem possible, indeed perhaps probable, because of the failure of the Magistrate to have ruled on those matters that she did not understand the importance of the issue. [20] That view of her Honour’s understanding of the matter is confirmed by consideration of her Honour’s judgment. At p 2, 1 33 ff thereof her Honour says: “I also make a comment at the outset, that in the submissions received on behalf of (the appellant), I’m asked to make adverse findings against (the second respondent) because of the immigration proceedings that are on foot as well. The Court cannot make any findings about immigration proceedings or make any adverse findings against (the second respondent) about that. The Court acknowledges that (the appellant and second respondent) were both pursuing … an immigration application for (the second respondent) to become a permanent resident of Australia. And that relied upon them remaining a couple, and they’re no longer a couple so that has a totally negative effect for (the second respondent) so the Court acknowledges that. But the Court cannot then presume to look at everything (the second respondent) says and does with a critical eye or a suspicious eye, thinking that she may be bringing these proceedings solely to stay in Australia. The Court has to look at it, solely, in relation to domestic violence.” [21] In my view that passage illustrates that the Magistrate clearly did not understand the importance of the issue of motive to the consideration of the honesty and reliability of the second respondent’s evidence. [22] A motive can be important to issues of credibility. A motive to lie can impeach the credit of a witness. -- 6 of 8 -- 6 [23] Her Honour’s reasoning in the case, which I have set out, clearly shows that her Honour did not direct her mind to the question of whether or not the complainant may have been motivated to lie by a desire to obtain a DVO so as to influence the outcome of her application for a visa. It was not necessary that the Court make findings about immigration proceedings, but it was necessary that the Court apply a critical mind to the assessment of the second respondent’s evidence about the alleged domestic violence incidents, having regard to the possibility that she may have been so motivated. That of course does not mean that her evidence must have been rejected. The Magistrate was entitled to conclude, if it be the case, that having considered the evidence of motive she rejected the submissions for whatever sound reasons she may have had for doing so. [24] But she did not do that. [25] In the circumstances, it appears to me that her Honour has not properly considered the issues of the credit of the second respondent necessary to a proper resolution of the dispute before her. [26] In circumstances where the determination of the matter depends upon issues of credit it seems to me that the appropriate order is to allow the appeal. The issue then arises as to whether I should remit the matter to the Magistrates Court for determination by another magistrate in accordance with the law, or whether the application for the protection order ought to be dismissed. [27] In relation to that issue counsel for the appellant was given leave to read and file an affidavit of the appellant. Consideration of the issues raised in that affidavit and in the transcript below (as appears at T1-76/85 and T1-104/106) cause me to conclude that while a protection order might have been made at the time of the original hearing, a court now hearing the matter would inevitably conclude such an order was now not necessary because of the circumstance that the parties are now living separately and apart. There is simply now no need for a protection order. In that circumstances it is appropriate to allow the appeal and to dismiss the application. [28] I order: 1. Appeal allowed. -- 7 of 8 -- 7 2. Application for DVO be dismissed. After I made such orders the parties had agreed on the following costs orders: 1. No order as to costs of the appeal as between the appellant and second respondent. 2. First respondent to pay the appellant’s costs of the appeal fixed by agreement in the sum of $18,000. -- 8 of 8 --