EKL v Commissioner of Police & PEL [2020] QDC 194

DISTRICT COURT OF QUEENSLAND CITATION: EKL v Commissioner of Police & PEL [2020] QDC 194 PARTIES: EKL (appellant) v COMMISSIONER OF POLICE (first respondent) and PEL (second respondent) FILE NO/S: 956/2019 DIVISION: District Court, Brisbane PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 12 August 2020 DELIVERED AT: Brisbane HEARING DATE: 20 July 2020 JUDGE: Dearden DCJ ORDER: 1. Appeal allowed; 2. The protection order made in the Brisbane Magistrates Court on 20 February 2019 is set aside; 3. The application for a domestic violence order by PEL be remitted to the Brisbane Magistrates Court for rehearing before a different magistrate. CATCHWORDS: DOMESTIC VIOLENCE – APPEAL AND REVIEW – where a protection order was made after trial – where the trial proceeded without the appellant present – where the appellant was denied the opportunity to cross-examine the aggrieved – whether the magistrate erred in prohibiting the appellant from cross-examining the aggrieved – whether the conduct of the hearing of the application resulted in the appellant not -- 1 of 14 -- 2 receiving a fair hearing – whether there has been any error on the part of the learned magistrate in dealing with the application – whether the appellant was not afforded procedural fairness by the learned magistrate – whether the learned magistrate erred in finding that the final protection order was, “necessary or desirable” in all the circumstances – whether the learned magistrate erred in failing to comply with the provisions of the Domestic and Family Violence Protection Act 2012 (Qld) s 151(4) in respect of the evidence of the aggrieved - whether a miscarriage of justice resulted LEGISLATION: Domestic and Family Violence Protection Act 2012 (Qld) s 37, s 150 s 151(2), s 151(4), s151(4)(a), s151(4)(b), s151(4)(b)(i), s151(4)(b)(ii), s151(4)(b)(iii), s 164 CASES: AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195 DMO v RPD [2009] QDC 92 Kioa v West (1985) 159 CLR 550 COUNSEL: J Cook for the appellant M C O’Brien (sol) for the first respondent K L Martin (sol) for the second respondent SOLICITORS: A W Bale & Son for the appellant Queensland Police Service Legal Unit for the first respondent KLM Solicitors for the second respondent Introduction [1] On 20 February 2019, a protection order was made in the Brisbane Magistrates Court pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) in favour of the aggrieved, PEL in an application brought by the Commissioner of Police. The order included the aggrieved and eight “named persons” including four children. In addition to the usual conditions, the order contained a range of “no contact” provisions both general and specific with exceptions for compliance with court orders and child safety related matters. The protection order was made for a period of 10 years and expires on 19 February 2029. Appeal [2] The appellant appeals pursuant to DFVPA s.164. -- 2 of 14 -- 2 [3] The appellant (without objection from the first and second respondents) argued three grounds of appeal at the hearing which are as follows: 1. The appellant was not afforded procedural fairness by the learned magistrate; and/or 2. The learned magistrate erred in failing to comply with the provisions of the Domestic and Family Violence Protection Act 2012 (Qld) s.151(4) in respect of the evidence of the aggrieved; and/or 3. The learned magistrate erred in finding that the final protection order was “necessary or desirable” in all circumstances. The law – appeals under the DFVPA [4] I refer to and respectfully adopt the analysis of Lynham DCJ in AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195 at [6]-[9]. Background [5] The trial transcript provided on this appeal1 commences at 9.41 am on 20 February 2019. The appellant had briefed a legal representative, Ms B McKenzie, to appear for him on an application to adjourn, which commenced at 10.31 am. Between 9.41 am and 10.12 am, over six and half pages of transcript (which includes two short adjournments) there is discussion between the learned magistrate and the police prosecutor (who appeared in behalf of the Commissioner of Police to conduct the application for the protection order) in the absence of the appellant and/or his legal representative during which the court received information including:- 1. That there was likely to be an application to adjourn;2 2. That the appellant had engaged a solicitor overnight;3 3. That the Family Court trial had just finished and that a decision was pending;4 4. That the aggrieved wasn’t too far away and was very determined to see the matter through;5 1 Exhibit 3. 2 Transcript 1-2 l 3. 3 Transcript 1-2 l 7. 4 Transcript 1-2 ll 43-47. 5 Transcript 1-3 ll 7-12. -- 3 of 14 -- 3 5. That the appellant’s son had been charged with [criminal offences] 6 6. That the police prosecutor had received a letter from the solicitor for the aggrieved advising that any supervised visits that were previously allowed had been suspended and the appellant was not to see the children or give them gifts;7 7. When the learned magistrate enquired as to whether the appellant had participated in his Family Court hearing, the police prosecutor advised that the appellant had not, and that he had asked for an adjournment of that hearing to which the learned magistrate replied “Dear. Right. That’s useful. He’s on bail for criminal charges as well”, which received an affirmative response from the prosecutor who then gave a summary of the current position in respect of the criminal charges;8 8. There was discussion as to the appellant’s previous legal representation and issues of service;9 9. There was discussion about whether the aggrieved required a screen;10 10. The procedural history of the matter.11 11. The prosecutor advising the learned magistrate that the appellant’s lawyer was “I think … going to ask for an adjournment”.12 Issues relating to the filing of the appellant’s material and service [6] When the hearing commenced, the appellant was represented by Ms McKenzie, solicitor, who proceeded to make an application to adjourn the hearing. In support of that application, Ms McKenzie sought leave to file and read an affidavit of the appellant and submitted: 1. That the appellant’s legal representation had recently been terminated;13 2. That the appellant had medical conditions and the impact of those with reference to the medical certificate;14 6 Transcript 1-3 ll 18-19. 7 Transcript 1-3 l 45; Transcript 1-4 ll 1-3. 8 Transcript 1-4 ll 4-12. 9 Transcript 1-4 ll 14-18. 10 Transcript 1-4 ll 31-44. 11 Transcript 1-7 ll 9-35. 12 Exhibit 3; Transcript 1-7 l 43. 13 Transcript 1-9 l 43. 14 Transcript 1-12 ll 5-6. -- 4 of 14 -- 4 3. There were outstanding criminal matters;15 4. That a Family Court decision was to be handed down on 21 February 2019.16 [7] The application to adjourn was refused.17 [8] Ms McKenzie then sought leave to withdraw from acting. After hearing that application, the learned magistrate deferred acting on the application,18 and commenced the trial. Ms McKenzie subsequently renewed her application leave to withdraw on no less than two subsequent occasions without receiving a decision.19 Ms McKenzie also informed the learned magistrate on no less than eight occasions that she was only retained on the basis of bringing the application to adjourn and was not instructed beyond that.20 [9] The prosecutor called the aggrieved to give evidence and she was sworn. Her evidence-in-chief commenced and the learned magistrate then interrupted and enquired whether the police prosecutor was seeking to have the aggrieved declared a protected witness. At that stage, the prosecutor indicated that there would be an application for the aggrieved “to be a protected witness and, if she is to be cross- examined, that she not be cross-examined by the respondent if he is unrepresented.”21 [10] Ms McKenzie was asked to take instructions on that application by the learned magistrate. Ms McKenzie indicated she could take instructions but having been unable to review any material, was unable to provide any advice. Again Ms McKenzie stressed that her retainer was “simply to bring the application to adjourn” and that she didn’t “have instructions for a hearing or a retainer on that basis”.22 [11] Ms McKenzie sought to take instructions from the appellant outside the court and on her return, advised the court that the appellant was “in a position at the moment, he is outside feeling that he’s going to suffer a panic attack” and again renewed her application for leave to withdraw, indicating she couldn’t “meaningfully assist the 15 Transcript 1-12 ll 6-7. 16 Transcript 1-12 ll 9-10. 17 Transcript of Decision p 5 ll 38-39. 18 Transcript 1-20 l 5; Transcript 1-24 l 33. 19 Transcript 1-17 ll 17. 20 Transcript 1-17 ll 17-19, ll 25-27, ll 32-35; Transcript 1-19 ll 3-6; Transcript 1-20 ll 3-9, ll 17-18; Transcript 1-21 ll 39-40; Transcript 1-24 ll 33-38. 21 Transcript 1-18 ll 33-35. 22 Transcript 1-19 ll 4-6. -- 5 of 14 -- 5 court any further in cross-examination or submissions without having reviewed the application itself”.23 [12] The learned magistrate then proceeded to grant the protected witness application under DFVPA s.150,24 making an order under DFVPA s.150C that the witness could have a screen to obscure the vision of the protected witness from the appellant,25 and also proceeded to grant an application prohibiting the appellant directly asking questions of the aggrieved in cross-examination.26 [13] The aggrieved adopted her affidavit.27 The learned magistrate then asked Ms McKenzie if she wanted to make a final attempt to get the appellant to return to the hearing room to give instructions on cross-examination of the aggrieved. When Ms McKenzie told the court that she was unable to take any instructions on cross-examination, the aggrieved was excused from giving further evidence.28 [14] Police officer Marnock was then called to give evidence. During her evidence, Mr D R Wilson of counsel appeared before the learned magistrate to again renew the application for Ms McKenzie to be granted leave to withdraw.29 [15] After some discussion between Mr Wilson and the learned magistrate, Ms McKenzie was finally granted leave to withdraw and she and Mr Wilson then withdrew.30 [16] The appellant then returned to the court, was advised by the learned magistrate that his solicitor had been granted leave to withdraw and the following exchange then took place: “Bench: All right so you’ve got a copy of the material from prosecution. Respondent: No I don’t and your Honour if I – if I may say, understand you have my medical certificate. I was in hospital last with an angina. And I have a certificate excusing me from court except to seek the leave of the court today. So I’m not doing very 23 Transcript 1-20 ll 3-9. 24 Transcript 1-20 ll 20-21. 25 Transcript 1-12 ll 21-25. 26 Transcript 1-20 ll 28-34. 27 Trial Exhibit 3 – T1-21 l 30. 28 Transcript 1-21 ll 35-43. 29 Transcript 1-24 ll 33-38. 30 Transcript 1-24 l 14. -- 6 of 14 -- 6 well and I won’t be participating in this any further today, I’m afraid. Bench: All right. Well I understand that you’re disappointed with the result of the application to adjourn hearing. It was made on a specific basis of a general practitioner to single a consolation [sic]. There’s no reference to any medication or any hospitalisation. So the hearing is proceeding. You’ve got an opportunity to participate. If you elect not to do so then the matter will proceed in your absence. Respondent: I understand that, and for my health’s sake I won’t be participating. Bench: Sorry? Respondent: Sorry, your Honour I understand that, and for my health’s sake I won’t be participating. Bench: Can I – before you leave, EKL, the reason I went to some lengths to refer to the material that you filed and served, is there are admissions made in relation to a central platform of the application against you. Have you given consideration to consenting on it without admissions basis? Respondent: I have. I just feel it’s grossly unfair and egregious that my children are on that in the face of the evidence of my affidavit as well. Bench: The difficult – do you want to take a seat while I just have a short discussion? The difficulty with – as I’m sure you are aware, the jurisdiction of the Domestic Violence Court doesn’t enter into the Federal Family Court’s determination about contact. So the protection – have you got a copy of that protection order that was made by Magistrate Strofield on 11 July? Respondent: I don’t, but I am familiar with it. Bench: All right. So I’ll just – have you had advice about the Family – the effect of the Family Law exception when there is a Domestic Violence Order in place? Respondent: When you talk of the exception do you refer to s. 121 on – I presume not. … Bench: EKL, I’ve given my reasons for my determination. The direction [sic] are clear. And you can conduct yourself in the manner you see fit. However, if you’re not going to take up the opportunity to -- 7 of 14 -- 7 consent on a without admissions basis, I won’t delay the carriage of the hearing any further. Respondent: Yes your Honour I – I would just say in closing, your Honour, that I am medically unfit and it – it is inappropriate for me to even be involved to this extent presently. I’ve only done this out of respect for the court and I’d like to excuse myself. Bench: That’s a matter for you. So are you referring to further material, Sergeant?”31 [17] The hearing then proceeded in the absence of the appellant and his legal representative and a protection order was made. Discussion Ground 1 - The appellant was not afforded procedural fairness by the learned magistrate [18] The discussion by the learned magistrate and the police prosecutor appearing on the application for the protection order, in the absence of the appellant and/or his legal representative, was wide ranging, was not confined to merely procedural matters but canvased various matters of substance in the application itself as well as matters personal to the appellant, and was clearly a breach of natural justice. A judicial officer has an unwavering obligation to treat all parties in any litigation with procedural fairness, and must avoid any apprehension of bias. [19] In this matter, when the lengthy discussion between the learned magistrate and the police prosecutor was then followed by a refusal of the application for an adjournment by Ms McKenzie appearing on behalf of the appellant, the breach of natural justice becomes even more concerning, in particular, where the learned magistrate has received information from one of the parties to the litigation in the absence of the other party and then proceeded to exercise a discretion (refusing an adjournment) without advising the other party of what had transpired in that party’s absence. [20] It is clear there is an obligation to provide procedural fairness in proceedings under the DFVPA.32 The content of the duty to provide procedural fairness will depend on the circumstances.33 In my view, substantive information provided to the decision 31 Transcript 1-26 ll 6-47, Transcript 1-27, Transcript 1-28 ll 1-31. 32 DMO v RPD [2009] QDC 92, [9]; AJC v Constable Kellie-Anne Gijsberten & Ors [2019] QDC 195, [53]. 33 Kioa v West (1985) 159 CLR 550, 585, 612-615. -- 8 of 14 -- 8 maker by one party in the absence of the other party, is a clear breach of the obligation of procedural fairness. The learned magistrate should not have made the inquiries that were made, but once made, the police prosecutor should have (politely) declined to engage in the dialogue. [21] In this appeal, apart from expressing the appellate court’s concerns in the strongest possible terms, it becomes unnecessary to finally decide whether the appeal should be granted on this ground, given my decision on Ground 2 below. Ground 2 - The learned magistrate erred in failing to comply with the provisions of Domestic and Family Violence Protection Act 2020 s.151(4) in respect of the evidence of the aggrieved [22] DFVPA s.151 provides: “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. (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 (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 -- 9 of 14 -- 9 (iii) has decided not to cross-examine the protected witness.” [23] The aggrieved was called to give evidence at 11.15am. The learned magistrate at that stage enquired with the prosecution as to whether an application was to be made for the aggrieved to be declared a protected witness. The prosecutor stated: “We are applying for her to be a protected witness and, if she is to be cross-examined, that she not be cross-examined by the respondent if he is unrepresented.”34 [24] The learned magistrate asked Ms McKenzie to take instructions from the appellant. At this stage, Ms McKenzie, although she had made an application for leave to withdraw, had not been granted leave and had effectively been required to remain at the bar table, uninstructed on any matters in respect of the substantive proceedings, during the aggrieved’s evidence in chief. Ms McKenzie stated “in light of the late retainer, we haven’t received any material [from the appellant]. I haven’t received any material whatsoever in this matter. My retainer is simply to bring the application to adjourn. I don’t have instructions for a hearing or a retainer on that basis, your Honour”.35 [25] Ms McKenzie was then invited to take instructions from the appellant in respect of the application for the aggrieved to be declared a protected witness. Upon her return, Ms McKenzie again renewed her application for leave to withdraw36 and advised the court that she was unable to get instructions in respect of the application for the aggrieved to be declared a special witness.37 [26] At that point, the learned magistrate granted the prosecution application in respect of DFVPA s. 150 (protected witnesses).38 The learned magistrate ordered that the aggrieved could give evidence with a screen to obscure vision of her from the appellant.39 [27] The learned magistrate then noted that an order was sought “by prosecution under s 151 which provides for restriction on cross-examination [of a] person by a non- 34 Transcript 1-18, ll 33-35. 35 Exhibit 3, 1-19 ll 3-6. 36 Transcript 1-20, l 5. 37 Transcript 1-20, ll 17-18. 38 Transcript 1-20, ll 20-21. 39 Transcript 1-20, ll 22-25. -- 10 of 14 -- 10 represented party. It also provides in [sub] section 2 that the court, on its own initiative, may grant an application seeking that a respondent may not cross-examine a protected witness”.40 [28] The learned magistrate then proceeded to make an order which prohibited “[the appellant] directly asking questions of the aggrieved in cross-examination”.41 [29] The hearing then continued, with Ms McKenzie (who had still not received the courtesy of a decision from the learned magistrate on her repeated applications for leave to withdraw) retained at the bar table. The aggrieved adopted a copy of her affidavit42 and that concluded her evidence in chief. [30] The following exchange then occurred between the learned magistrate and Ms McKenzie: “Bench: … Ms McKenzie, do you want to make a final attempt to get EKL to return to the hearing room so he can give you instructions on cross-examination for the aggrieved? Ms McKenzie: I am unable to take any instructions on cross- examination, unfortunately, your Honour. Bench: Alright. Thank you. PEL. You can be excused? - -- Thank you.”43 The witness was then excused at 11.35am. [31] Police officer Marnock was then called to give evidence, and partway through that evidence, Mr Wilson of counsel appeared to renew Ms McKenzie’s application for leave to withdraw. After some back and forth between Mr Wilson and the learned magistrate, Ms McKenzie was given leave to withdraw. [32] It is clear that the learned magistrate was alive to the provisions of DFVPA s.151. Indeed the learned magistrate made an order pursuant to s.151(2), but then excused the aggrieved, without proceeding to consider the mandatory provisions of DFVPA s.151(4), namely: 40 Transcript 1-20, ll 28-32. 41 Transcript 1-20, ll 32-33. 42 Trial exhibit 3, Transcript 1-20 ll 40-41. 43 Transcript 1-21, ll 30-43. -- 11 of 14 -- 11 “(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 (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.” [33] The appellant returned to the court and there was a dialogue between the appellant and the learned magistrate which concluded with the appellant saying “I would just like to say in closing, your Honour, that I am medically unfit and it – it is inappropriate for me to even be involved to this extent presently. I’ve only done this out of respect for the court and I’d like to excuse myself.”44 The learned magistrate at no stage either during the exchange with the appellant, or before nor afterwards, sought to take any steps to comply with the mandated provisions of s.151(4)(a) requiring the court to inform the respondent that he could not cross-examine the aggrieved; or in respect of s.151(4)(b) requiring the appellant to advise the court by a stated date or time, whether he had arranged for a lawyer to act for him;45 or arranged for a lawyer to act for him for the cross-examination of the aggrieved;46 or had decided not to cross-examine the aggrieved.47 [34] In AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195, where similarly there was a failure to comply with DFVPA s.151(4) (although in slightly different circumstances) Lynham DCJ held: “[79] Prohibiting the appellant from cross-examining AME [the aggrieved] without complying with the pre-conditions contained in s.151 DFVPA for the making of such an order was, in my view, a fundamental error which denied the 44 Transcript 1-28, ll 25-28. 45 DFVPA s151(4)(b)(i). 46 DFVPA s151(4)(b)(ii). 47 DFVPA s151(4)(b)(iii). -- 12 of 14 -- 12 appellant a fair hearing on the application. The appeal must be allowed on this basis also.”48 [35] It is clear that Lynham DCJ’s conclusion in AJC v Constable Kellie-Ann Gijsberten & Ors is directly applicable to the circumstances of this appeal. The learned magistrate’s non-compliance with DFVPA s.151(4) is a fundamental error, the appellant has been denied a fair hearing, and the appeal must succeed on that basis. Ground Three - The learned magistrate erred in finding that the final protection order was “necessary or desirable” in all circumstances [36] In the circumstances, it becomes unnecessary to consider the third ground of appeal. Further Discussion [37] I respectfully adopt the approach of Lynham DCJ in AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195 [80], in that it is clear that DFVPA s169(1)(d) gives this court the power to “set aside the decision appealed against and remit the matter to the court that made the decision”. [38] Having concluded that the appellant has been deprived of a fair hearing of the application, the only appropriate order in the circumstances is to set aside the decision of the learned magistrate making a protection order against the appellant and to remit the matter to the Brisbane Magistrates Court for a rehearing of the application. It is not possible (given the failure to comply with DFVPA s.151(4)) to reach any of the necessary findings in this court. It will be necessary to have the matter reheard, with the appellant seeking, if he wishes, to cross-examine the aggrieved in accordance with the provisions of DFVPA s.151(4), and of course be given the opportunity himself to give or call evidence on the application. [39] The appeal must be allowed, the protection order set aside, and the proceedings remitted to the Brisbane Magistrates Court for rehearing of the application by another magistrate. Conclusion [40] In respect of appeal 956/19, I make the following orders: 48 AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195 at [79]. -- 13 of 14 -- 13 1. Appeal allowed; 2. The protection order made in the Brisbane Magistrates Court on 20 February 2019 is set aside; 3. The application for a domestic violence order by PEL be remitted to the Brisbane Magistrates Court for rehearing before a different magistrate. Costs [41] I will hear the parties on costs. -- 14 of 14 --