Dufficy v Berry [2007] QDC 227

DISTRICT COURT OF QUEENSLAND CITATION: Dufficy v Berry [2007] QDC 227 PARTIES: THELMA MAY DUFFICY Appellant AND VALERIE ESMAE BERRY Respondent FILE NO/S: Appeal 519/07; Mag-00176854/05 (7); Holl-Mag-4644/05 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Holland Park DELIVERED ON: 1 October 2007 DELIVERED AT: Brisbane HEARING DATE: 3 September 2007 JUDGE: McGill DCJ ORDER: Appeal dismissed with costs. CATCHWORDS: CRIMINAL LAW – Peace and Good Behaviour order – appeal against refused to make – outcome turned on credibility of witness Peace and Good Behaviour Act 1982 s 6. Balenzuela v De Gail (1959) 101 CLR 226 – applied. Devries v Australian National Railways Commission (1993) 177 CLR 472 – applied. Fox v Percy (2003) 214 CLR 118 – applied. Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421 – applied. Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 – applied. Rowland v Dawbarn [1925] St R Qd 52 – applied. Stevenson v Yasso [2006] 2 Qd R 150 – applied. COUNSEL: The appellant appeared in person T.A.C. Winn (Solicitor) for the respondent SOLICITORS: The appellant as not represented South West Brisbane Community Legal Centre for the respondent -- 1 of 7 -- 2 [1] This is an appeal from the decision of a magistrate at Holland Park on 1 February 2007 to dismiss the appellant’s complaint under the Peace and Good Behaviour Act 1982 (“the Act”). The appeal is brought under s 222 of the Justices’ Act 1886 and is to be dealt with by way of rehearing: s 223. The proceeding [2] The proceeding began on 6 October 2005 when the appellant swore a complaint that the respondent had threatened to assault or to do any bodily injury to her. The grounds of the complaint as stated in the complaint were as follows: “The complainant and defendant live in a Queensland Housing Commission cluster of units in Mansfield. On 4 October 2005 the defendant’s daughter Lauren rattled the wooden gate near the complainant’s unit at about 8.30 to 9.00 pm and crated considerable noise as dogs started barking. The complainant got up from her bed to investigate the noise and was hosed by the defendant who was standing nearby with a garden hose. On 6 October 2005 at about 8.00 am the defendant approached the complainant near her car and said: ‘You want to be careful or you might wake up with a knife in your gut’. The complainant is now in fear of her.” [3] The complaint was in the form provided under the Act. Presumably the justice before whom the complaint was made was satisfied that it was substantiated to the justice’s satisfaction and that it was reasonable in the circumstances for the complainant to be in fear of the defendant (s 4); a summons was issued on the complaint returnable at the magistrates court at Holland Park on 11 November 2005. Under s 6(1) the magistrates court before which the defendant appears “shall hear and determine the matter of the complaint”. [4] The complaint was contested by the respondent, and there was a trial before a magistrate on 24 January 2006. The appellant was legally represented; the respondent was not. The complaint was dismissed. An appeal by the present appellant against the dismissal of the complaint brought to this court was allowed by another judge: [2006] QDC 252. He ordered that the matter be reheard in the magistrates court. As a consequence, there was another hearing, in effect de novo, before a different magistrate who conducted the second trial on 25 October 2006. The decision was then reserved until 1 February 2007 when the complaint was dismissed for reasons which the magistrate recorded in writing. [5] Essentially, the magistrate after reviewing the evidence rejected the evidence of the appellant. Accordingly he was not satisfied that there had been a deliberate hosing of the appellant, or that there was any threat to assault the appellant on 6 October 2005 as alleged. The complaint was therefore dismissed. The appeal [6] As I said the appeal is by way of rehearing; it follows that I am required to make my own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view: Stevenson v Yasso [2006] 2 Qd R -- 2 of 7 -- 3 150 at 162.1 Nevertheless, it has long been recognised that, when a trial court has had the benefit of seeing and hearing the parties give their evidence and been able to form an impression of the credibility of the parties, the decision is not lightly interfered with on appeal unless it can be shown that the advantage which the trial court had in this way has been in some way misused.2 Grounds of appeal [7] I will deal first with the grounds in the notice of appeal, filed 1 March 2007. The first ground was that the decision was against the weight of the evidence. But the evidence of the appellant, which was contradicted by the evidence of the respondent, was entirely uncorroborated, and the magistrate was left in a situation where, in relation to the two particular incidents referred to in the complaint, there were different and inconsistent versions given by the parties, and no independent support or confirmation of either of them. In these circumstances, it seems to me that essentially the weight of the evidence depended on the assessment of the credibility of each of those witnesses. [8] As to the first incident, the respondent conceded that there had been a hosing, although the respondent’s description of it was somewhat different from the appellant’s (p 68); the respondent said that the appellant had come up behind her while she was hosing the garden and she had turned around and inadvertently sprayed some water on the appellant before she could see where the appellant was, so that the hosing was accidental: p 97. The respondent simply denied that any such threat as alleged in the complaint had been made by her to the appellant: p 98. The decision was certainly not against the weight of the evidence. [9] The next ground was that the magistrate had rejected evidence brought before the court by the witness for the applicant. Apart from the applicant herself, the only other witness was Dr Jensen, who had been at the time working as a solicitor and who saw the appellant on 6 October 2005 at 9.30 am: pp 91-2. I will come to the significance of that evidence later, but the proposition that it was rejected by the magistrate is without foundation. The magistrate said (p 6) that the evidence “does not assist me in determining whether the threat was made … .” He evidently accepted the evidence, but did not find it helpful. [10] The third ground was that the magistrate “acted unjudicial by claims that the lights within the driveway were allocated after the incident in which supported the respondent as she claimed the applicant stood in the dark.” This was a reference to the hosing incident; when speaking about this the respondent said that at that time there was no light out the front (p 97 line 11), presumably a reference to where she was standing.3 She said that after that incident she put up a light outside her property which in turn prompted a further complaint from the appellant. This was mentioned, but was not a matter which featured further in the magistrate’s reasons. On the hearing of the appeal the appellant referred to Exhibit 1, a plan of the units which was before the magistrate, which includes a couple of circles which the appellant said were lights in the complex: p 63. None of this really touched the question of whether or not it was dark in the place where the parties were standing 1 See also Parsons v Raby [2007] QCA 98 at [24]. 2 Fox v Percy (2003) 214 CLR 118 at [25]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421 at [40]. 3 See also p 106 line 7. -- 3 of 7 -- 4 at the time the incident occurred. There was nothing obviously unjudicial about the way in which the magistrate dealt with this evidence, and I reject this ground. [11] The next ground, as developed in an outline filed and in oral argument, was that the magistrate had failed to appreciate the significance of the evidence of Dr Jensen, as to his having seen the appellant at 9.30 am on 6 October. The appellant’s evidence was that on that day at about 8.00 am the respondent’s threat was made, after which she went to the Holland Park police station, and then to the Holland Park courthouse and then to see a solicitor: p 70. She said she arrived at around 9.00 am: p 71. She made an appointment for 9.30. The significance of this, which is by no means direct, arises in the following way: the respondent said in her evidence that she had not made a threat at about 8.00 am that morning, and “didn’t even see her, let alone speak to her”.4 She said that that morning she went shopping early, and a letter from the Commonwealth Bank to show that there had been a transaction on her account at about 9.30 am that day was put in evidence: Exhibit 5. She said she saw the appellant near her car when she returned home after her shopping, which at one point she put at about a quarter to 10: p 98. If the appellant was seeing Dr Jensen at this time, the respondent’s evidence that she was then outside the units cannot be correct, and this was relevant to the assessment of the credibility of the respondent. [12] Under cross-examination the respondent said that she could not say whether she was still at home at 8.00 am or whether she had already left for the shops, not having had any reason to note the time: p 113. Nevertheless, she said she did not speak to the appellant or see her that morning at about that time. She conceded that at the earlier trial when asked where she was about 8.00 am her answer was at the shops: p 114. She denied, however, that she was clear in her mind then that that was where she was at that time, and said that she did not think it was important where she was at that time. She said she did not know the exact time she left: p 116. [13] The appellant’s argument, that the respondent’s evidence about having seen the appellant for the first time that morning at the units at about a quarter to 10 was inconsistent with the evidence of Dr Jensen that at 9.30 the appellant began to see him in his office about the matter (something which would obviously have taken more than a quarter of an hour) may well be right, but I think it is a very large step to proceed from that proposition to a conclusion that this demonstrates that the respondent made a threat to the appellant at about 8.00 am that morning. At most, this may cast some doubt on the reliability of the evidence of the respondent. But what matters in a matter of this nature is particularly the evidence of the complainant, in this case the appellant. [14] In the present case it was not that the appellant’s evidence was rejected essentially because of its inconsistency with that of the respondent, and the credibility of the respondent. The magistrate recognised there was some vagueness and uncertainty on the part of the respondent about the times of her comings and goings on 6 October 2005, but found that she was an honest witness in respect of the important issues: p 6. On the other hand, he formed the impression that the appellant was willing to exaggerate or embellish her evidence and that she would say anything which would bolster her case against the respondent, and said he was ultimately left with “no confidence in [her] credibility as an honest witness.” It was not just that to some extent the respondent made a favourable impression on the magistrate; the 4 P 98 line 3. -- 4 of 7 -- 5 magistrate specifically records an unfavourable impression of the appellant. In those circumstances, demonstrating that the respondent’s evidence must have been wrong about the time at which something relatively inconsequential was supposed to have occurred cannot assist the appellant. Logically it does not support her credibility; at best it merely damages the credibility of the respondent. The appellant carried the onus, and if the magistrate was not prepared to accept her evidence, her application ought to have failed even if the magistrate had rejected the respondent’s evidence as completely unreliable. It follows that there is no substance to this ground of the appeal.5 [15] The appellant’s outline of argument filed 14 June 2007 raised some additional grounds.6 The first new ground complained of a failure to put allegations to the appellant in cross-examination, contrary to the rule in Browne v Dunn. That rule requires that a party put to an opponent’s witnesses in cross-examination the nature of the case upon which it is proposed to rely in contradiction of the witness’s evidence, and the grounds on which the party will seek to have the witness disbelieved.7 It may well be that there were some aspects of the cross-examination which did not strictly comply with the rule. There is, however, no requirement that the court must accept evidence which has not been challenged in cross-examination, particularly if the evidence is contradicted by other evidence.8 [16] Insofar as there was a failure to put the proposition that the appellant was standing outside her home at a quarter to 10 on 6 October talking to a neighbour, the appellant was hardly prejudiced by that failure because the appellant called evidence anyway in relation to that matter which was inconsistent with that proposition. The next matter complained of was a failure to put some evidence of the respondent in relation to an earlier exchange on the day on which the hosing incident occurred: p 97. The appellant had herself given evidence of a somewhat different series of exchanges on the same day prior to the hosing incident (p 67), and in cross-examination the point was made specifically that the hosing incident was an accident. That was the defence case, and that was what was accepted by the magistrate, and it seems to me that in relation to that there was adequate compliance with the rule. [17] There was a further complaint that a statement by the respondent, when giving an explanation for having put up the security light, that among other things she had seen the appellant spray-painting a neighbour’s car (p 97), was not put. I accept that it was not put in cross-examination, but it was not a matter relied on by the magistrate, or indeed particularly part of the respondent’s case. It would have been better if the respondent had not mentioned it, although I suppose if it were one of the reasons why she put up the security light, that was what she was asked about and her answer was responsive. This is not a matter which featured in the decision of the magistrate and I do not think it is in itself a matter of any particular significance. The proposition that the threat was not made was certainly put in cross-examination, that was the respondent’s case, and on that point ultimately that was what the magistrate accepted. 5 That is apart from the fact that the evidence of Dr Jensen appears to have been led in breach of the collateral issue rule: Cross on Evidence (Australian Edition) para [17,580]. 6 The respondent did not object to this course, and presented argument on the additional grounds. 7 Cross on Evidence (Australian Edition) para [17,435]. 8 Cross para [17,460]. -- 5 of 7 -- 6 [18] It was also submitted that the evidence from two of the respondent’s witnesses (Ms Kimber and Ms Bell), was inadmissible, going only to credit. Neither of them gave evidence dealing with either of the particular incidents in the complaint, but Ms Kimber said that she had not seen the respondent behave in a threatening manner to anyone (p 121), and had never seen the respondent threaten or in any way harass the appellant: p 122. Ms Bell gave evidence about assisting the respondent to obtain and install a sensor light in her carport (p 125), and said that she had not observed the respondent harass or threaten the appellant but said that they had had arguments which the appellant had started: p 126. [19] The appellant submitted that this evidence was inadmissible and should have been excluded; it was objected to at the trial. The respondent, however, submitted that the evidence was relevant, not in relation to whether any particular incident occurred, but in relation to the general requirement in s 4 of the Act that “the complainant is in fear of the person complained against.”9 In relation to this, it seems to me that the evidence of Ms Bell, that the appellant had started arguments with the respondent, was relevant to the question of whether the appellant was in fear of the respondent, and her evidence was properly before the magistrate on that basis. The evidence of Ms Kimber, however, did not go as far as this, and really said only that on any particular occasions when the witness had been observing there had been no specific harassment or threat. In my opinion that evidence was irrelevant, and the objection should have been upheld. [20] The magistrate referred to Ms Bell’s evidence, which he correctly said did not assist him in determining the question of credit, and that it was not proof of any specific incident; he made no reference to the evidence of Ms Kimber, and in view of the detail of the reasons if there had been some reliance on it no doubt reference would have been made to it. On the whole I do not think that the mere fact that there was a small piece of inadmissible evidence before the magistrate is of any consequence. I am not persuaded that any substantial wrong or miscarriage of justice resulted from its admission;10 on the contrary, I feel some reasonable assurance that the wrongful admission of evidence could not reasonably be supposed to have influenced the result.11 I would not order a new trial on this ground. [21] There was a further ground advanced, that the findings of the magistrate were glaringly improbable and inconsistent with other proved facts. But the only “proved fact” relied on in this way by the appellant was that she was seeing Dr Jensen at 9.30 am on 6 October. There are no findings inconsistent with that. The magistrate’s approach to the question of timing that morning appears to have been influenced by the evidence of Dr Jensen, which he clearly accepted, but obviously the fact that the appellant was with Dr Jensen at 9.30 that morning does not demonstrate that the respondent threatened her at 8.00 am, or indeed at any other time. Ultimately that was the question the magistrate had to decide, that depended entirely on the evidence of the complainant, and the magistrate was ultimately not persuaded to accept that evidence. 9 Whether the complainant is in fear of the respondent is one of the matters to be determined: Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 at 47. 10 Rowland v Dawbarn [1925] St R Qd 52 at 62 per Shand J, 81 per Mcnaughton J. 11 Balenzuela v De Gail (1959) 101 CLR 226 at 235 per Dixon CJ. This may be the correct test for an appeal under s 222 where there is simply a discretion to order a rehearing under s 225(2), to which UCPR r 770(2)(a) would not apply, nor in this case would s 230 of the Supreme Court Act 1995. -- 6 of 7 -- 7 [22] It is established that for the purposes of the Peace and Good Behaviour Act 1982 the standard of proof in relation to a complaint is that referred to as the Briginshaw test:12 Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45. Fitzgerald P (with whom McPherson JA agreed on this point) said at p 49: “It is plain that the strength of the evidence necessary to establish the basis for an order under s 6 must take into account the seriousness of the allegation made against the person against whom the complaint is made.” [23] Accordingly, it was not just a matter of the magistrate deciding which of two inconsistent versions was to be accepted; it was a matter of the magistrate determining whether these serious allegations had been made out. That was the test the magistrate applied: p 1. Ultimately the magistrate was not persuaded they had. In my opinion no good reason has been shown why the decision of the magistrate to that effect was wrong. There is certainly no basis upon which I could conclude from the evidence before the magistrate that it was appropriate to make an order under the Act, and I do not think that sufficient has been shown to justify a third trial in this matter. Accordingly the appeal is dismissed with costs. I will fix the costs when these reasons are delivered. 12 Identified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. -- 7 of 7 --