Bird v Redman

District Court of NSW|2024-03-08

Background

On 25 August 2023 the Newcastle Local Court made an apprehended personal violence order (APVO) against Ms Melise Bird (the 'appellant'). The APVO was made on application brought by Ms Lynn Redman (the 'respondent').
The appellant now appeals the APVO, and she does so pursuant to s 84(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The respondent's application

This was made on 21 September 2022. The application cited multiple incidents arising from the respondent's refusal to comply with alleged requests by the appellant to move her car. It was explained that both the appellant and respondent lived in the same block of units and had done so (to that point) for the previous 2 years and 5 months.
The respondent sought a range of orders. Those relevant behavioural orders required the appellant not to do any of the following to the respondent (or anyone that the respondent was in a domestic relationship with): A) assault or threaten her/them; B) stalk or intimidate her/them; and C) intentionally or recklessly destroy or damage any property or harm an animal belonging to or in the possession of her/them.
Ultimately, the learned Magistrate made behavioural orders in terms of what was sought in the application. The duration of those orders was 2 years (expiring on 25 August 2025) and the respondent was identified as the person in need of protection.

The requirements for an APVO

As the Local Court Magistrate indicated, the respondent's application was brought under s 19 of the Crimes (Domestic and Personal Violence) Act 2007. The power that the Local Court exercised under that provision was exercisable if the Court is satisfied on the balance of probabilities that: "the person (the respondent) has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person-- (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order."
A 'personal violence offence' is defined in s 4, including, without limitation, the offence of intimidation.
"Intimidates" is defined under s 7. It included, without limitation, conduct that causes a reasonable apprehension of (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property.
As her Honour recognised in forming her opinion under s 19, she was required to consider various matters under s 20. To paraphrase those matters, these relevantly included:

the safety and protection of the person seeking the order and any child directly or indirectly affected by the conduct of the defendant (s 20(1));
the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person's property (s 20(3))

Approach to appeals against AVOs

By s 84(3) of the Crimes (Domestic and Personal Violence) Act 2007, such appeals are treated as being similar in nature to appeals to this Court against convictions entered by the Local Court, which are regulated by the provisions of Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW). I say similar, since there are necessary modifications given that the Local Court was not hearing a criminal charge.
One of the provisions of significance is s 18 of the Crimes (Appeal and Review) Act, which indicates that generally, the appeal is by way of rehearing on the basis of evidence given in the Local Court (Crimes (Appeal and Review) Act, s 18(1)). Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given (Crimes (Appeal and Review) Act, s 18(2)). "Fresh evidence" means 'evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen' (Crimes (Appeal and Review) Act, s 3)
That means that this Court's approach to the appeal is influenced by the following features that I described in R v Scott [2023] NSWDC 271 at [5]-[6] concerning appeals against Local Court convictions, which, when transposed to the current legislative context, are as follows: "2. ..the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo. 3. The court must give the judgment which, in its opinion, ought to have been given in the first instance. 4. The appellant must demonstrate factual, legal, or discretionary error to succeed. 5. That said, the term 'error' has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of 'error' in the ordinary meaning of that term. 6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the [applicant for the order] bears the onus on establishing the matters [on the balance of probabilities]. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied [on the probabilities] as to [the requirements of s 19]. An appeal must be upheld unless the appellate judge is satisfied of the [requirements for the application on the probabilities]. 7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the [matters on the balance of probabilities]…. ……. there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunney v DPP (2021) 105 NSWLR 236 at [3], [29]-[30]; and the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 at [73]"

Evidence in the Local Court hearing

As they did in this Court, the appellant and respondent represented themselves in the Local Court.
The evidence was entirely documentary; comprising witness statements in the light of usual Local Court practice (Parts 6.6 and 7.2 of the Local Court Practice Note No. 2 of 2012). Her Honour observed that neither party was required to attend Court to be cross-examined.
The respondent relied upon an APVO statement, a letter addressed to the Department of Housing, a treatment letter and medical history (Exhibit 1). There were also handwritten statements, including from other tenants in the property from Max Rumble and Leonie Holyoak and (an undated) one from T Fitzsimmons which apparently partially corroborated certain incidents of screaming by the appellant towards the respondent. The last one from T Fitzsimmons alluded to seeing the appellant carrying a box whilst screaming abuse at the respondent and, more specifically, threatening the respondent that she would damage the respondent's car. More will be discussed about this later. It appears that these handwritten statements were supplied for the dispute resolution process that apparently occurred within the Department of Housing in September 2022.
The letter from a psychologist, Phillip Screen, contained assertions that the respondent had been subject to mistreatment (to use a neutral term) from the appellant for three years and that he had been providing therapeutic treatment for the respondent.
The appellant relied upon her statement, a letter from Breaking Boundaries (3/3/23) about support requirements for her son, Shay, a letter from Imogen Caladine (a disability support worker), photographs of a vehicles and a letter from Dr Nazran regarding the appellant's own medical condition; indicating that she has been diagnosed with non-operable lung cancer since 2023 and has since been subject to specialist care (Exhibit 2).

The Magistrate's reasons

Given the circumstance that neither the appellant or respondent gave testimonial evidence in the hearing, there was no occasion for the Magistrate to make findings about the credibility or reliability of both parties when evaluating their witness statements.
The Magistrate considered the typed letter written by the respondent and understood her to be primarily complaining about an incident that occurred on 16 August 2022. It was after this incident, she stated, that she decided to call Waratah police. In this part of the typed letter, the respondent wrote: On the 16 August 2022 when I came home from shopping I parked nearest to my unit. I had shopping and a large box to take into my unit. I took my shopping in first then went back to get the box. The woman, Molice Bird, who lives in her sons unit came out and started yelling and swearing at me to move my car. I said, No, and tried to walk away. Molice stood in front of me holding the box. Molice was screaming and spitting at me to move my f…ing car c..t many times. You are an inconsiderate c..t. I did not speak to her. As the box was heavy I rested it on a neighbour's veranda railing. Molice still screaming at me. By turning slightly to put the box on railing gave me a small leeway to grab my box and walk away. Molice continued to scream at me until I got to my unit. As I got to my unit Molice screamed she will really hurt me and damage my car. At my door I said I will get a AVO on you and she yelled she will get one on me. I range the Waratah Police after these threats.
In a later part of the same statement, the respondent gave a hearsay account (which was not objected to by the appellant) that she had been told by another tenant, Warren Hardaker, that two days after this incident, the appellant was ripping the bonnet protector off the respondent's car.
Her Honour noted that, up to the date of the Local Court hearing, there had been no subsequent incident since 16 August 2022. But she observed that within Exhibit 2, there was a notice from the Department of Housing supplied a warning the occupant of unit 3 (the appellant's son) who the appellant indicated suffer from MS, in such condition that parking in a safe place was paramount for his needs. It appears that a meeting occurred in the Department of Housing on 13 September 2022 when the appellant and respondent ventilated their dispute, although as her Honour noted, the details of that forum for dispute resolution (if that was what it was) were not apparent in the hearing.
Her Honour further noted that the appellant admitted in her written statement to swearing and abusing the respondent, although she denied threatening the respondent. She also admitted there was an exchange in which they mutually discussed AVOs. The appellant explained that from her perspective, the respondent had parked in car space which the appellant required to assist her son. She stated that she had asked the respondent three times to move her car but the respondent rebuffed those requests. What appeared to make the appellant particularly upset was that other tenants had accommodated her in the past by moving their cars.
Her Honour referred to a letter from Imogen, the disability support worker who assists the appellant's son, in corroboration of the appellant's evidence. Imogen was standing on the verandah of unit 3. She said she saw the appellant wind the window down on her car and asked the respondent to move the car. She said she heard the appellant explain to the respondent that the respondent's vehicle was in the only space that the appellant's son would be able to access the car (with the help of others), but the respondent "yelled" no and did so repeatedly when the appellant had 'tried to reason with her'. She was aware of the respondent's version of events but disagreed with it. She said she did not witness the appellant threaten the respondent or her property at all.
The learned Magistrate expressed sympathy for the appellant's plight; acknowledging her obvious concern for her son, but at the same time, her Honour also said that the respondent had an entitlement to park where she did; noting that the respondent had her own challenges. I endorse these observations.
Her Honour found, on the probabilities, that the appellant acted inappropriately on 16 August 2022. She reasoned to that finding partly on the basis of the indications from the appellant's evidence that she was frustrated and stressed on the day. Her Honour also found, notwithstanding the appellant's denials, that the appellant also threatened to damage the respondent's car. She based that finding partly upon the circumstance of the respondent calling police (whereas in the past the respondent had refrained from calling the police). Part of the finding was also based upon the fact that the respondent's car was in fact damaged two days later. Her Honour deployed co-incidence reasoning in that regard.
Ultimately, her Honour was therefore satisfied that on 16 August 2022, the appellant intimidated the respondent. She accepted that the respondent feared for herself and her safety. In this way, the requirements in s 19 were made out. Her Honour elaborated that the issue of the carpark space, although presently contained, was likely to revive. This meant that the respondent had a reasonable ground to fear and actually did fear being either the commission of a 'personal violence offence' against her or 'intimidation', which warranted the making of the order.
Having done so, her Honour explained why she would only make the behavioural conditions sought in the application and ordered the APVO to be of 2 years' duration.

The appellant's appeal

In her notice of appeal to this Court, the appellant identified as the grounds of appeal as follows: "It could affect may application for Working with Children check and my workers check. I am not guilty. I am not applying for Bail".

Fresh evidence

Both the appellant and the respondent sought to rely upon material post-dating the Magistrate's decision, although matters unfolded in the hearing of this appeal in an unexpected way. As indicated earlier in these reasons, this constitutes 'fresh evidence' and neither party had any entitlement to rely upon this material as of right. Both parties required the Court's leave to rely upon this evidence and needed to persuade the Court that it is in the interests of justice to do so.

'The interests of justice'

In Landsman v R [2014] NSWCCA 328, Beazley P (as her Excellency then was, Hidden J and Fullerton J agreeing) observed (at [69]-[70], citations omitted) that the expression: "…will involve the balancing of various interests that are in play in the particular context in which the phrase is used. Although the "interests of justice" will include the interests of the parties, the concept will invariably be wider than that and include larger questions of legal principle, the public interest and policy considerations …. In some cases, "the interests of justice" will override other recognised legal principles or matters of public policy. Thus, in Mickelberg v R [1989] HCA 35; 167 CLR 259 at [35], Deane J observed that there were circumstances in which "the interests of justice may override the public policy that there should be an end to litigation". That statement was made in the context where the applicant had been convicted on false evidence. The present case does not involve the same circumstances with which the Court was concerned in Mickelberg. However, his Honour's remarks demonstrate that there are occasions when the interests of justice may predominate over other competing legal principles such as the finality of litigation, which is now recognised as a fundamental tenet of our legal system …."
There are some authorities as what the expression 'interests of justice' means in the context of appeals to this Court against criminal convictions in the Local Court. However, care needs to be exercised in simply assimilating those principles to appeals to this Court from APVOs: plainly the context is different. The stigma of criminal convictions in the Local Court, following an adjudication upon guilt beyond reasonable doubt is qualitatively different to APVOs, whose object is to protect people from violence, intimidation (including harassment) and stalking (Crimes (Domestic and Personal Violence) Act, s 10(2)(a)) and on a lower standard of proof. Being the subject of an APVO, although imposing a restraint upon a person's freedom of movement, is not itself a criminal offence. In saying this, I do not overlook the circumstance that being the subject of an APVO would, if publicised, carry its own stigma. The point I make is that it is of a qualitatively different kind to a criminal conviction.
One principle which is of some significance in my view, is the interest in keeping parties to the cases that they ran at first instance (Holcombe v Coulton (1988) 17 NSWLR 71 at 77E-F). To liberally permit parties on appeals to rely upon fresh evidence is not only to contravene the basic appellate function of a rehearing (and not a hearing de novo) for appeals of the present kind but is likely to entangle this Court in a fact finding exercise. I note further that another statutory object (Crimes (Domestic and Personal Violence) Act, s 10(2)(b)) is to ensure that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice (emphasis supplied). As indicated, the learned Magistrate decided this case primarily upon evidence of a particular incident. The parties in the Local Court had fair opportunity to identify the witnesses to that incident. If, after the Local Court's decision, the parties sought to rely upon the evidence of witnesses whose statements were not relied upon in the Local Court, when no explanation is given as to why those statements were not obtained prior to the Local Court hearing, this would controvert the statutory object in s 10(2)(b). It would cut across the principle of finality which, in the present context, tries to minimise further factual disputes on appeals from AVOs to this Court.
Another principle which is applicable is that fresh evidence may be allowed to facilitate the public interest in the administration of justice (Mickelberg v R (1992) 59 A Crim R 288 at 302-3).

Application by the appellant

Initially, the appellant indicated her intention to adduce various letters for the purpose of showing that that the written statement of Ms Fitzsimmons, that was part of Exhibit 1 in the Local Court, was neither written by her; nor even a genuine reflection of her view. The appellant and her two carers gave a hearsay account of what they heard Ms Fitzsimmons say.
Evidence of this kind would ordinarily be potentially capable of satisfying the interests of justice criterion. It could cast doubt upon the evidence Ms Fitzsimmons whose statement was intended to corroborate the evidence of Ms Redman. It could also impugn the credibility of the respondent. In short, it would be relevant. I accept further that the evidence was not known to the appellant by the time of the Local Court hearing.
During the hearing, however, the respondent admitted that she wrote the handwritten letter under Ms Fitzsimmons name. At that point, I was unconvinced that there was any further utility in admitting, as fresh evidence, the letters that the appellant wanted to rely upon.
But at a point during the hearing, as she was about to commence her submissions (that is to say, after the appellant had given her submissions), the respondent sought to explain, from the Bar Table, what happened in relation to what I now call the 'Fitzsimmons witness statement'. When she did so, I explained to the respondent that I was content to receive that explanation, but on terms that permitted the appellant the opportunity to cross-examine Ms Fitzsimmons. I decided to do so since it was in the interests of justice that evidence emerge which might cast light upon the circumstances in which a false representation had been made to the Local Court.
The respondent gave 'evidence' to the effect that she provided the details to Ms Fitzsimmons and presumed that the latter agreed with them.
Ms Fitzsimmons gave evidence. Given the self-represented nature of the parties, no objection was taken to my asking questions 'in chief' of Ms Fitzsimmons. The effect of her evidence was not only that Ms Fitzsimmons did not write the statement, but she had not seen it before. She also stated that she disagreed with its contents. Ms Fitzsimmons said that she did not want to 'take sides' and thought the whole dispute was unnecessary. Given the nature of that evidence, the appellant (unsurprisingly) did not cross-examine her further in any material way. But in re-examination by the respondent, it was plain enough that the respondent was putting to Ms Fitzsimmons that they had been friends and Ms Fitzsimmons was lying.

Application by respondent

In relation to the fresh evidence proposed by the respondent, this consists of additional witness statements of three other tenants in the units. One of those, curiously, is the appellant's own daughter.
No satisfactory explanation was given by the respondent why these additional statements could not have been obtained and were not relied upon in the Local Court. To a large degree they purport to provide further corroboration for other witness statements that the respondent relied upon in the Local Court. Admission of them in evidence would give rise to other factual matters and prolong the dispute. This is an instance where the principle of finality, at least in relation to the scope of factual disputes, is significant.
In my view, it was not in the interests of justice to allow the respondent to rely upon them. The respondent's application for leave to rely upon them was refused.

Submissions

Neither party supplied the Court with written submissions. Their arguments on appeal were verbal.
I invited the appellant to submit what errors that the learned Magistrate made on the basis of the evidence as it was in the Local Court hearing. As was explained to the parties, this was on the basis of the evidentiary record, as it was, in the Local Court hearing, supplemented by the fresh evidence concerning the Fitzsimmons statement.
The appellant submitted, in effect, that the learned Magistrate's findings were wrong for failing to take into account at all, of give due weight, to three matters.
First, in circumstances where her son was gravely incapacitated, but had been given notice of a warning by the Department of Housing (which, although referred to by the Magistrate at the hearing - T 13.21 - could not be located within the evidence before the Court) it was improbable that she would do anything, such as threaten the respondent physically or threaten to damage the respondent's property, as that might prejudice her gravely incapacitated son's prospects of continuing to reside in unit 3 of the complex.
Secondly, it was wrong for the Magistrate to place emphasis upon the respondent's calling of the police (T 14.15). The appellant referred to her evidence that police only came around to reprimand the appellant and the respondent.
Thirdly, she submitted that the Magistrate's finding that it was probable that she had scratched the respondent's car did not take into account the circumstance that she had terminal lung cancer and, inferentially, she did not have the capacity to damage the respondent's car.
Finally, the appellant submitted that if, contrary to her earlier arguments, the requirements under s 19 were established, she no longer presented any threat to the respondent.
I observe that I gave the appellant the opportunity to make submissions specifically on the effect of Ms Fitzsimmons' evidence during the hearing of the appeal, but the appellant declined this offer.
The respondent's submissions were brief. She said that she had life threatening illnesses as well and that she was, and continues to be, frightened about the appellant.

Consideration

It is important to emphasise that although the respondent bore the onus of proof that the power to order an APVO should be exercised, the Magistrate's task was to make that determination on the balance of probabilities; a plainly lesser standard than the criminal standard. This required her Honour, in effect, to have regard to s 140 of the Evidence Act 1995 (NSW).
The debate in the Local Court hearing centred upon a particular incident on a particular date. Although the appellant denied threatening the respondent, there was much else about the protagonists' accounts that were similar: that she did yell and swear at the respondent and that they discussed AVOs being taken out against one another (which itself was a pointer to the appellant having made a threat of some kind against the respondent). That the appellant admitted to this was unsurprising given that, ultimately, there was much evidence to show a history of the appellant yelling and swearing at the respondent. According to the psychologist, the respondent put up with this behaviour for a not insignificant period and had suffered for it.
What marked this incident out as being special was the asserted threat to herself and the threat of damage to the respondent's car - her property. As the Magistrate noted, on this occasion, the respondent did not just put up with verbal abuse. She called the police.
Addressing the appellant's points in this appeal, none of those were persuasive in indicating error.
The learned Magistrate was conscious of not only the appellant's inoperable cancer but also the predicament of her son. The difficulty that the Magistrate had, which I share, is that there was no real dispute about the content and tone of verbal abuse which the appellant directed to the respondent on the particular occasion (and on other occasions). In the throes of an emotional tirade, it was conceivable that, however inadvertently, the appellant might lose sight of the circumstance that she might act in a way detrimental to her son. In other words, the submission strikes me as a self-serving reconstruction in the cool light of day; quite detached from the reality of the emotive condition that the appellant was in on the day in question when the 'discussion' occurred.
Secondly, her Honour was entitled to take into account the agreed facts that police came around (and had not previously done so in the face of earlier verbal abuse) to facilitate the finding that a threat to the respondent's person and/or property was made. The event on 16 August was in other words distinctive.
Thirdly, the respondent had given evidence in the Local Court that damage to her vehicle included scratching. I am unconvinced that the appellant, even with inoperable cancer, did not have the capacity to scratch the vehicle.
Fourthly, the appellant's argument that the orders made no longer have utility flies in the face of the history of on-going acrimony between the appellant and respondent; which shows not the slightest indication of abating.
I now need to consider the evidence of the Fitzsimmons statement. It is troubling and does the respondent no credit. Sometimes however, parties who are anxious or desperate take steps under the belief that the ends justify the means, but they can still be truthful. I have noted that her Honour did not make positive or negative credit findings either way against the parties but made her decision, as she was required to, on the probabilities, having regard to all the statement evidence. If there was a doubt about the respondent's credit, there was other corroborative evidence in the Local Court to support her - save for the Fitzsimmons statement. As to that document, although it was referred to by her Honour, the transcript indicates that it did not play a part in her operative reasoning. In my opinion, the fresh evidence, however troubling, did not materially affect her Honour's assessment of the probabilities.
I find no error in the Magistrate's findings that in the light of the events of 16 August 2022, the respondent had reasonable grounds to fear and in fact feared that the appellant would intimidate her, in the requisite sense, including the threat of damage to her motor vehicle. Her Honour was justified in making the order under s 19.
No point was taken about the conditions that her Honour imposed.

Orders

The appeal against the APVO imposed on 25 August 2023 is dismissed and the Local Court order is confirmed.

Amendments 11 March 2024 - Paragraph formatting and "assault" amended to "asserted" in paragraph 54 11 March 2024 - Formatting DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2024

(2021) 105 NSWLR 236

(2021) 106 NSWLR 430

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (3)

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