AEN v Queensland Police Service & Anor [2022] QDC 27

DISTRICT COURT OF QUEENSLAND CITATION: AEN v Queensland Police Service & Anor [2022] QDC 27 PARTIES: AEN (appellant) v QUEENSLAND POLICE SERVICE (first respondent) AND JEN (second respondent) FILE NO/S: 302 of 2021 DIVISION: District Court PROCEEDING: Hearing of Appeal ORIGINATING COURT: Magistrates Court at Caboolture DELIVERED ON: 21 February 2022 DELIVERED AT: Brisbane HEARING DATE: 30 November 2021 JUDGES: McDonnell DCJ ORDER: The application for extension of time for leave to appeal is refused. CATCHWORDS: DOMESTIC AND FAMILY VIOLENCE LAW – PROTECTION ORDER – APPEAL – where appeal initiated under s 164 of the Domestic and Family Violence Protection Act 2012 – where applicant sought to adduce fresh evidence – whether appellant denied procedural fairness where initial hearing proceeded in their absence – whether time for the appellant to file a notice of appeal should be extended LEGISLATION Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 39, 51, 112, 164, 168, 169 CASES Allesh v Maunz [2000] HCA 40; (2000) 203 CLR 172 Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 Mbuzi v Torcetti [2008] QCA 231; (2008) 50 MVR 451 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 R v Tait [1999] 2 Qd R 667 SOLICITORS: The appellant appeared in person Queensland Police Service Legal Unit for the respondent -- 1 of 9 -- 2 The second respondent appeared in person Introduction [1] AEN seeks leave to appeal the decisions made on 16 July 2020 to make a protection order and on 3 August 2020 to vary that protection order. The appeal is brought under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DFVP Act). AEN proposes revocation of the protection order. AEN is the respondent named in the protection order. JEN, the father of AEN and the aggrieved named in the protection order, supports the appeal. AEN’s mother is a named person in the protection order. She did not participate in the appeal. Appeal [2] AEN filed a notice of appeal subject to leave on 8 February 2021. The notice sets out the grounds of appeal as follows: “[AEN] appeals the protection order on the grounds that he had had a mental breakdown before being unlawfully stripped of his parental rights through the family court, and that [AEN] verbally consented to the protection order whilst incarcerated at PICU Caboolture in a venerable (sic) state. At no time of the breakdown was the parents of [AEN] present. [AENs] parents named on the protection strongly oppose this unnecessary privilege.” (de-identified) [3] An appeal under s 164 of the DFVP Act is available to a person who is aggrieved by a decision to make or vary a domestic violence order. [4] Such an appeal must be decided on the original evidence given in the substantive proceeding before the learned Magistrate.1 This means that in general, the evidence relied on during the original proceeding before the learned Magistrate is the same evidence put before the District Court during an appeal. [5] The appeal judge is able to make their own determination on the evidence, having regard to the decision of the learned Magistrate and bearing in mind any advantage the learned Magistrate had in seeing and hearing the witnesses give evidence at the original hearing.2 1 DFVP Act, s 168. 2 Mbuzi v Torcetti (2008) 50 MVR 451,454 (Fraser JA). -- 2 of 9 -- 3 [6] To succeed, AEN must demonstrate some legal, factual or discretionary error of the trial Magistrate.3 The question is not whether this court may have made a different finding but is, rather, whether the finding by the trial judge was reasonably open on the evidence before them.4 [7] Pursuant to s 169 of the DFVP Act, the appellate court can confirm the decision made below, vary the decision, set aside the decision and substitute another decision or set the decision aside and remit the matter back to the court that made the original decision. The decision of the appeal court is final and conclusive. [8] While AEN seeks to appeal both the protection order and the variation of the protection order, as the 16 July 2020 protection order remained in effect until the varied order takes effect, I have taken the appeal to be in relation to the 3 August 2020 protection order. In the event that I am wrong in this approach, I have addressed the 16 July 2020 protection order below. Hearings before Magistrate [9] On 13 July 2020, the Queensland Police Service (QPS) issued a Police Protection Notice in favour of JEN (the Notice). The Notice included a clause prohibiting AEN from re-entering the family home. The Notice took effect as an application for a protection order under s 112 of the DFVP Act. [10] On 16 July 2020, the application came before the learned Magistrate for mention in the Caboolture Magistrates Court. AEN did not appear. JEN was legally represented and advised the learned Magistrate that he supported the police application, provided written exceptions were included in the conditions. [11] The learned Magistrate was satisfied that AEN had been served and did not appear, that there was a relevant relationship and that there had been acts of domestic violence.5 The Magistrate made an order pursuant to s 37 and s 39 of the DFVP Act. The order, in force to and including 16 July 2025, contained the following conditions: 3 Allesch v Maunz (2000) 203 CLR 172, 180. 4 Edwards v Noble (1971) 125 CLR 296, 304. 5 Transcript of Application 16 July 2020 and Transcript of Decision 16 July 2020. -- 3 of 9 -- 4 “1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved; 2. That the respondent must be of good behaviour towards the named person and not commit associated domestic violence against that named person an when a child must not expose the child to domestic violence; 3. The respondent is prohibited from entering, attempting to enter, or approaching to within 100 metres of premises where the aggrieved lives; 4. The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text, or internet. Except with the prior written consent of the aggrieved, including by text message or email; 5. The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place. Except with the prior written consent of the aggrieved by text or written.” [12] On 24 July 2020, JEN, the aggrieved named in the protection order, filed an application in the Caboolture Magistrates Court seeking to revoke the order by limiting its duration. The application was heard on 3 August 2020 and AEN, JEN and the QPS were in attendance at the hearing of the application. [13] The application to revoke the order in its entirety was opposed by QPS. However, the QPS did not oppose the order being amended to include an exception allowing the respondent to enter the aggrieved’s home upon the giving of consent by the aggrieved. [14] The learned Magistrate varied the protection order by consent and without admissions, by the amendment of clause 3 to add “Except with the prior written consent of the aggrieved including by text message or email.” Fresh evidence [15] AEN sought to adduce fresh evidence at this hearing. [16] The Court may give leave to adduce fresh evidence if satisfied that there are special grounds. That is, the evidence is credible, it is material to the outcome of the appeal, and it could not have been obtained at the time of the original hearing. -- 4 of 9 -- 5 [17] The proposed fresh evidence includes numerous transcripts of hearings, submissions and sentencing, QPS Court Briefs and witness statements regarding prior breaches by AEN of protection orders over the period 2017 to 2018, two medical reports from Dr Andie Hughes dated 25 August 2020 and 8 September 2021 and the Queensland Health Discharge Summary. [18] From the material it is apparent that Dr Hughes is a consultant psychiatrist with whom AEN engaged and who prepared these two reports following consultation with AEN. The Queensland Health Discharge Summary from the Caboolture Hospital deals with AEN’s admission to the Psychiatric Intensive Care Unit of that hospital on 13 July 2020, his treatment, and his discharge on 16 July 2020. The authors of these reports were not called to give evidence and they were not made available for cross examination. [19] The reliance placed on some of this fresh evidence by AEN is not clear. On the material before me, the documents regarding AEN’s prior breaches of protection orders are not relevant to my consideration. [20] I accept that the reports of Dr Hughes and the Queensland Health Discharge Summary could not have been obtained at the time of the original hearing and are apparently credible. Having regard to AEN’s ground of appeal, I allow Dr Hughes two reports and the Queensland Health Discharge Summary for the limited purpose of the consideration of the application for extension of time. Extension of time for filing notice of appeal [21] A notice of appeal must be filed within 28 days of the making of the decision, or if made in the absence of AEN, the earlier of: 1. The day on which a copy of the decision is served on AEN; or 2. The day on which a police officer tells AEN about the existence of the decision.6 [22] While absent from the 16 July 2020 hearing, AEN was served with the protection order by police on 17 July 2020.7 AEN was in court for the hearing of the 6 DFVP Act s 165(4). 7 Statement of Police Service affirmed 17 July 2020. -- 5 of 9 -- 6 application to vary the protection order on 3 August 2020. Appeals from these decisions were due on 14 August 2020 and 31 August 2020 respectively. [23] Thus, the notice of appeal was filed out of time and AEN requires leave to extend the period for the filing of the notice of appeal. [24] In the exercise of the Court’s discretion, it will consider whether there is good reason for the delay and whether it would be in the interests of justice to grant the extension. Factors relevant to this second consideration include the appeal’s prospect of success, prejudice to the respondent and the length of the delay.8 [25] In the grounds for the application for the protection order the QPS stated, “During conversations at the hospital, the respondent was advised of the Police Protection Notice and wished to advise that he consented to the order naming him as the respondent”. [26] In his outline of argument, AEN stated: “[AEN] was stripped of his parental rights at the Family Court on 31 August 2020 and was in no mental shape to meet the 28-day appeal deadline, as the appeal is subject to leave. [AEN] can demonstrate by exhibit a Summary of Discharge PICU, Final Orders of the Family Court and a note from the aggrieved [JEN] in accordance with condition 3 of the varied protection order handed down 3 August 2020 by Magistrate J.L. Blanch.” (de-identified) [27] He told this court that at the time he was told of and committed to the Notice, he was in the course of being admitted to hospital, was vulnerable and experiencing a mental breakdown. As a result, it took him a couple of months to overcome his mental health issues and apply to the court for leave to appeal. [28] The Queensland Health Discharge Summary indicates that AEN was discharged from the Psychiatric Intensive Care Unit (PICU) at 12.46pm on 16 July 2020. [29] In his 25 August 2020 report, Dr Hughes observed: 8 R v Tait [1999] 2 Qd R 667, 668 [5]. -- 6 of 9 -- 7 “My impression of [AEN] currently is that due to the cessation of Risperidone and re-emergence of methamphetamine use, his mental state has become more unstable over the past few months with an increased level of intensity, anger and inappropriate behaviour…Whilst he is not psychotic, it can be argued that the intensity of his focus and beliefs surrounding the situation have deprived him of judgement.” (de-identified) [30] In his 8 September 2021 report, Dr Hughes observed: “On mental assessment [AEN] was pleasant and appropriate with good rapport and no signs of agitation/distress…and showed no signs of abnormal mental state.” (de-identified) [31] While initially QPS opposed to the granting of an extension of time, at the hearing QPS did not oppose the application for extension of time and did not point to any prejudice suffered by it by the granting of the extension of time. [32] In the circumstances, I am satisfied that an adequate explanation for the delay has been provided by AEN. Whether it is in the interests of justice to grant the extension of time will require a consideration of the prospects of success of the appeal which I consider below. Appeal [33] The transcript of the proceedings and the decision of 16 July 2020 indicate that the order was not made by consent but was made in AEN’s absence, the learned Magistrate being satisfied that AEN was served on 13 July 2020 and there was no appearance by AEN. Thus, it was open to the learned Magistrate to proceed in the absence of AEN and to make the order on 16 July 2020.9 [34] However, an error may arise if in the making of that order AEN was denied procedural fairness. [35] In Allesch v Maunz10, Gaudron, McHugh, Gummow and Hayne JJ, referring to the earlier decision of the High Court in Taylor v Taylor,11 said: “…a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately 9 DFVP Act, s 39. 10 (2000) 203 CLR 172, 182. 11 (1979) 143 CLR 1. -- 7 of 9 -- 8 explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side…[Such an] injustice will often be capable of remedy by the imposition of terms as to costs.” [36] Kirby J went on to address the criteria for setting aside a judicial order made in default of appearance of a party: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.”12 [footnotes omitted] [37] As AEN was hospitalised on 16 July 2020, I am satisfied that he has satisfactorily explained his absence on that day. [38] When asked to identify the error made by the Magistrate, AEN said he was vulnerable at the time of the issue of the Notice and the making of the protection order and varied protection order. [39] The QPS, as the model litigant, suggested that AEN may have been submitting that his consent to the Notice may not have been ‘freely and voluntarily given by a person with capacity to give the consent’13 because he was vulnerable at the time of giving that consent. However, it is apparent that the learned Magistrate did not rely upon this consent in making the 16 July 2020 Protection Order. As to the later variation, there was no material before me to suggest that AEN lacked capacity at the relevant time. [40] The QPS submitted that there was no identifiable error in relation to the 3 August 2020 decision and that leave to appeal should be refused. [41] On the material available to the learned Magistrate on 16 July 2020, he was satisfied AEN had been served, that there was a relevant relationship, there had been acts of domestic violence and that it was necessary to make the order. There was no evidence before me that contradicted the facts before the learned Magistrate on 16 July 2020. AEN did not seek to challenge the findings. Having reviewed the 12 Ibid [48]. 13 DFVP Act, sch (definition of ‘consent’). -- 8 of 9 -- 9 information before his Honour, I am satisfied that he came to the conclusion based on all the relevant evidence before him. [42] I am not persuaded that a different result would have been achieved on a rehearing. This view is reinforced by AEN’s subsequent consent to the variation of the protection order. [43] From the transcript of proceedings and the Protection Order as varied on 3 August 2020, it is evident that AEN and JEN consented to the variation. That was not and is not in dispute. As the 3 August 2020 variation was made by consent different considerations applied for the Magistrate.14 As the parties consented his Honour needed only to be satisfied that a relevant relationship existed. The learned Magistrate made the varied protection order by consent and without admissions. AEN advised this Court that he consented to the variation. There is no evidence before me that AEN lacked the capacity to consent to the making of the 3 August 2020 variation. [44] On my review of the material before the Magistrate on that occasion, I am satisfied that His Honour did not mistake the facts and did not fail to take into account some material consideration. [45] I am not satisfied that an error has been demonstrated. The merits of the appeal favour the QPS. Accordingly, I am not satisfied that it is in the interests of justice to grant an extension of time to appeal. 14 DFVP Act, s 51. -- 9 of 9 --