FCA v Commissioner of the Queensland Police Service [2014] QDC 46

[4] An unusual feature of the application was LJK' attitude towards it. Although she signed the police record of her complaint on the night, she subsequently recanted it. She made repeated submissions to the office of Police Prosecutions and the Magistrates Court in an effort to bring the proceedings to an end. She denied that she was in need of a protection order.

[5] Before the hearing, she provided FCA with an affidavit in which she gave an almost identical account to the one given by FCA in his affidavit. Both maintained that version in their oral evidence. If accepted, it was not open to the learned Magistrate who heard the application to find that FCA had committed an act of domestic violence. That finding is a necessary pre-condition to making a protection order.[1]

[6] His Honour, however, did not accept their evidence. He found an act of domestic violence did occur, based on what LJK told the police on the night; her confirmation of the account when she signed the police notebook entry; and the marks the attending officers said they observed on LJK' neck.

[7] FCA seeks to appeal against the learned Magistrate's decision to make a protection order. His Notice of Appeal was lodged out of time. FCA was then representing himself. For reasons I gave orally at the appeal hearing, I granted an extension of time for FCA to lodge the Notice of Appeal.

[8] Section 37 sets out what a court must be satisfied of before it may exercise the discretion to make a protection order under the Act:

(1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that -

(a) a relevant relationship exists between the aggrieved and the respondent; and

(b) the respondent has committed domestic violence against the aggrieved; and

(c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.

(2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court -

(a) must consider the principles mentioned in section 4; and

(b) may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order."

[9] FCA's grounds of appeal include that the learned Magistrate erred in making the following findings, each of which is a necessary pre-condition to making an order:

1. that he and LJK were in a relevant relationship;

2. that he had committed an act of domestic violence against LJK;

3. that it was necessary or desirable that an order was made.

[10] FCA also alleges he was denied procedural fairness because the Magistrate had not properly dealt with his request for production of the recording or transcript of his conversation with police on the night of the incident. FCA told the Magistrate that the recording or transcript would demonstrate that he has been consistent in his statements about what took place that night. That could have had a bearing on the learned Magistrate's assessment of the evidence about whether FCA did commit an act of domestic violence.

[11] I have decided FCA has made out his argument that he was denied procedural fairness and the appeal should be allowed on that ground. For the sake of completeness, however, these reasons address each of the grounds he has raised.

[12] This is an appeal pursuant to s 165 of the Domestic and Family Violence Protection Act 2012. The appeal must be decided on the evidence of proceedings before the Magistrates Court.[2] The requirements and limitations of an appeal of this nature were articulated by the High Court in Fox v Percy.[3] The Queensland Court of Appeal recently adverted to them in Commissioner of Police v Toomer[4]:

"The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole."[5]

[13] An appellate court is not entirely unconstrained in its powers. In determining an appeal, a court should not set aside a finding of fact or an inference drawn by a trial judge unless it is clear that the finding or inference is wrong. The question is not whether the appellate court might have itself made a different finding but is, rather, whether the finding made by the trial judge was reasonably open on the evidence before them. [6] Further, an appellate court should only overturn a primary judge's exercise of judicial discretion where that exercise was plainly wrong or based on incorrect facts. [7]

[14] In his reasons, the learned Magistrate stated there was no dispute that FCA and LJK were in a relevant relationship because they had, as a couple, been in an intimate personal relationship.[8]

[15] In his affidavit of 24 September 2009, FCA said he had had a boyfriend-girlfriend relationship with LJK which had existed for approximately two months. He described a regular, consensual sexual relationship but denied financial dependence or any other form of dependence. He described their sexual relationship as exclusive.

[16] Although his Honour did not explain how a short relationship which had terminated six months prior to the hearing met the statutory requirement of a relevant relationship, that conclusion was open to him on the evidence.

[17] A "relevant relationship" includes an intimate personal relationship.[9] An "intimate personal" relationship includes a couple relationship.[10] A "couple relationship" exists between two persons if the persons have or had a relationship as a couple.[11] In deciding whether a couple relationship exists, a court may have regard to a number of circumstances including the length of time for which the relationship has existed or did exist.

[18] It is clear enough that the two were in an intimate personal relationship at the time of the incident. Although the relationship was short and had terminated 6 months earlier, it was open to his Honour to find that the requirement for a relevant relationship was satisfied, given FCA's evidence that they had an exclusive sexual relationship which involved a degree of trust, if not dependency.

[19] The learned Magistrate found that "domestic violence did occur as described to the police and that a genuine complaint was indeed made by her to the police."[12] In making this finding, his Honour accepted the version of events that LJK gave to police on the night. [13]

[20] There is no conflict between the parties about the meaning of the term domestic violence[14] as it applies to the competing version of events. It was common ground that if the evidence given by FCA and LJK at the hearing was accepted, FCA's conduct did not fall within the definition of domestic violence. Likewise, FCA has not disputed that what is recorded in the police notebook summary would qualify as domestic violence, if it had occurred. The dispute is about what happened and whether it was open to his Honour to prefer the version as recorded in the police notebook over the evidence given by FCA and LJK at the hearing.

[21] His Honour correctly identified that the Briginshaw standard applied, given the nature of the proceedings and the consequences of the findings he was required to make. He proceeded on the basis that he had to be satisfied to a very high degree of satisfaction.[15]

[22] FCA submitted the evidence upon which his Honour relied was hearsay evidence recorded in a police notebook at a time when LJK may have been affected by alcohol. LJK specifically recanted that version of events and gave sworn evidence both in an affidavit filed in the proceedings and in oral evidence before his Honour to the contrary.

[23] The Commissioner argued his Honour took all relevant evidence into account in forming the view that the police evidence relating to LJK' complaint was truthful and more reliable and had not erred in doing so. He was entitled, the Commissioner argued, to reject the later sworn evidence given by LJK because of the circumstances in which that evidence was given. She gave that evidence some months later when she said she did not really recall the argument and did not want the matter to proceed. Further, the Commissioner submitted the Magistrate was entitled to conclude that FCA had been party to the detail of LJK' evidence.

[24] FCA and LJK filed affidavits which were startling similar. FCA gave evidence that he had been involved in assisting LJK to prepare her affidavit. LJK, on the other hand, was not frank about FCA's involvement in the preparation of her affidavit.

[25] On the evidence that was before him, I consider that it was open to his Honour to conclude that an act of domestic violence had occurred that night, despite LJK' sworn evidence to the contrary.

[26] He noted that she could not recall the argument.[16] It was open to him to reject LJK' account that FCA might have squeezed her throat accidentally but that she had not told the police this because she was intoxicated.

[27] It was also open to him to reject the suggestion that police had exaggerated her account given LJK had signed the notebook and had made no complaint about its terms to the police. It is improbable that police would falsely record a complaint of this nature. There was no motivation for police to exaggerate her account.

[28] It not surprising that his Honour viewed LJK' evidence with suspicion, given its close correlation to FCA's and her apparent dissembling about how her affidavit had been prepared.

[29] On the evidence before him, then, it was open to the learned Magistrate to conclude that what LJK told the police and confirmed as accurate by signing the police record of it on the night was, in fact, what occurred.

[30] However, he proceeded to make that determination in the absence of the recording or transcript of FCA's conversation with police on the night of the incident. To this extent, this ground of appeal overlaps with FCA's complaint that he was denied procedural fairness.

[31] FCA asserted he had never varied in his statements about the incident. He said he believed the conversation was recorded. He had taken steps to secure that evidence which had not been successful. He identified why he wanted to lead it in evidence.

[32] The learned Magistrate made his finding in reliance on a record of a contemporaneous statement by LJK, who had since changed her account. Before drawing any conclusion from the police record, because of its contemporaneity, he should have had regard to all relevant contemporaneous evidence. In the circumstances of this case, that must include any record of the contemporaneous account given by FCA.

[33] There is no evidence before me about whether there is a recording or transcript of FCA's conversation with the police. I am not aware whether that has been investigated. Given there is possibly further evidence of relevance that is not before the court, it is not appropriate to make a finding about whether an act of domestic violence occurred.

[34] Whether an act of domestic violence occurred is a critical finding without which the court's jurisdiction to make a protection order is not enlivened. In proceeding as he did, I consider the learned Magistrate erred in making his finding without ensuring, first, that FCA, who was self represented, had the opportunity to lead all relevant and available evidence.

[35] There is no contest with his Honour's analysis of the approach he should take in considering whether a protection order was necessary or desirable. However, FCA argued his Honour erred in finding that a protection order was both necessary and desirable.

[36] In order to find that a protection order is necessary or desirable, the court must find that the aggrieved (LJK) is in need of protection. Logically, in determining whether there is a real need for protection, his Honour turned his mind to whether there was a likelihood that domestic violence would continue. LJK swore that she did not fear for her personal safety, and did not believe a protection order was necessary or desirable to keep her safe.[17]

[37] FCA gave evidence that the only contact he had had with LJK since 6 April 2012 was in relation to the application. He said he did not know her address nor had he attempted to seek it from her or any other person (although her affidavit recorded her address). LJK said she lives and works some 100 kilometres from FCA and had no intention to have contact with him in the future.[18] LJK also told the Magistrate that she had made a number of attempts to stop the process.

[38] At the time of the hearing, some six months had elapsed since the alleged act of domestic violence. There was no evidence of any further act by FCA in that time.

[39] Had I not determined this appeal on the ground that FCA was denied procedural fairness, I would have upheld the appeal on the basis that his Honour's reasoning that a protection order was necessary or desirable was not reasonably open on the evidence before him.

[40] His Honour made two critical findings which determined the fate of the application. The first was that FCA had suborned false testimony from LJK. The second was that this indicated that she was at risk and required protection from FCA.

[41] His Honour was, understandably, troubled by the affidavits prepared by or with FCA's assistance. That striking similarity, however, does not necessarily justify a finding that FCA suborned LJK to perjure herself. This is a very serious finding, against both FCA and LJK. Had FCA's contemporaneous statement been available to his Honour, he may well have taken a different view of LJK' sworn evidence, in which she recanted her original account to police.

[42] Further, even if his Honour's conclusion that LJK lied in her evidence before him was sound, it is a quantum leap from that finding to his conclusion that LJK had not perjured herself of her own free will; that is, that she was subject to pressure or intimidation by FCA.[19] The only basis that I could discern for this finding was his observation of LJK' demeanour while she was questioned by FCA.

[43] This is a central finding as it is inextricably linked with his finding she needed protection. He found that she had lied. He then found that she had not lied of her own free will. Therefore, he found that she was in need of protection from FCA. All of this reasoning was underpinned by inferences drawn from LJK' demeanour.

"LJK stated in evidence that she does not believe she needs an order and that she is not in fear. However, her demeanour and cool (sic) and her disdainful manner in her responses to the questioning by the respondent said otherwise."

[45] An appeal court is not in the same position as a trial judge in drawing conclusions based upon a witness's demeanour. The transcript cannot provide the appeal court with the feel of the case and much is communicated without words. However, a trial judge should be cautious about making critical findings based only on the demeanour of a witness. Our experience as judges does not necessarily equip us to ascertain a person's motivations and attitudes.

[46] Assuming, however, that his Honour accurately interpreted LJK' manner towards FCA was cool and disdainful, this does not provide a firm foundation for concluding that LJK was intimidated by FCA into giving false evidence or that she was at risk of him forcing her to do things against her will and for his benefit in the future.

[47] There could be other reasons for LJK to give false evidence if, indeed, it was false. LJK made numerous attempts to withdraw her complaint. She requested that of both the Prosecutor and the Court. One possibility is that LJK decided the only way to bring the proceedings to a halt was to confirm FCA's version of events. I stress that I make no finding that LJK' evidence was false or that she gave false evidence to halt the proceedings. I merely use this possibility as an example of another conclusion that was open to his Honour. Respectfully, I consider the learned Magistrate's findings in this regard were speculative and led him into error.

[48] The uncontested facts, assessed in the context of the evidence as a whole, count against a finding that it was necessary to make the protection order. FCA and LJK were no longer in a relationship. The hearing was 6 months after the alleged act of domestic violence. There was no evidence of any contact between them except as it related to these proceedings. There was no allegation of any further act of domestic violence against LJK. LJK had made repeated attempts to terminate the proceedings. She gave evidence that she was not in fear of FCA and did not require protection. That was consistent with her attempts to withdraw the complaint.

[49] In those circumstances, I do not consider that a finding that it was necessary or desirable to make a protection order was open on the evidence before the court.

[50] FCA requested the recording or transcript of his record of interview on 6 April 2012 from Constable Lukic.[21] He told his Honour that he had made repeated requests for that tape and it had not been provided to him before the hearing. At this point, Constable Lukic had already been cross-examined by FCA and he had failed to raise the matter with him. At the end of the hearing, FCA told his Honour that he wanted to rely upon it as it corroborated his evidence during the hearing about what took place on the night

[51] FCA did not request his Honour order the transcript or recording be produced, nor did he seek an adjournment. As a self-represented party, he could not be expected to understand the procedures that were available to him to secure that evidence. FCA had a right to appear in person.[22] It is well established that a trial judge must take proper steps to ensure that a litigant in person understands the procedures of the court. This does not mean that the judge seeks to make a party's case for them. What a judge must do to assist a litigant in person will depend on the litigant, the nature of the case and the litigant's understanding of the case.[23]

[52] In a proceeding under the Act, a court is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[24] The tape recording may well have been admitted into evidence. I have already identified how it might have borne upon the findings his Honour was required to make in this case.

[53] FCA's request was not made at the last minute. In his affidavit sworn on 29 August 2012, he referred to his repeated attempts to obtain the recording of his interview from either Constable Lukic or another officer who attended on the night, Constable Armour. The Commissioner was, therefore, aware of FCA's desire to secure that recording.

[54] The learned Magistrate observed that the fact that FCA had provided his version was referred to in the material, although what that version was does not appear to have been put in evidence, except by FCA at the hearing.[25]

[55] The Prosecutor informed the court that Constable Lukic stated in his affidavit that FCA's version of events was noted in his notebook.[26] In fact, Constable Lukic's affidavit attached his police notebook No H 094102. At pages 89-90, the Officer noted the attendance by FCA at the station. The notebook records "Digital Recording of version obtained at station".

[56] Presumably that is a reference to FCA's version. It seems to accord with FCA's emphatic assertion to the learned Magistrate at the hearing that he was "absolutely positive" his statement was recorded.[27] No explanation was given to the court as to why FCA's request for a copy of that recording was not met. Nor did Constable Lukic outline in his evidence what FCA said about it on the night.[28]

[57] His Honour was faced with conflicting versions given by LJK. He was minded to rely upon the account she gave on the night. Given the significance of that contemporaneous statement in the context of his finding that FCA had suborned false testimony from her, FCA's statement to police when first confronted about LJK' complaint assumes special significance.

[58] Respectfully, I consider the learned Magistrate denied FCA procedural fairness in his failure to respond to FCA about this evidence. He did not advise FCA of the steps open to him to subpoena material. He did not canvass the possibility of adjourning the hearing so his request could be responded to properly. He proceeded to determine the matter without clarifying whether there was any recording or transcript of FCA's statement to police.

[59] The appeal should be allowed and his Honour's decision set aside. It is now almost two years since the act of domestic violence is alleged to have occurred. If the appeal succeeded, the parties agreed it would be inappropriate to make any order other than to set the protection order aside.

1. The time to file the notice of appeal is extended to 9 January 2013.

3. The decision made in this matter in Magistrates Court file no 68025/12(2) on 21 November 2012 is set aside.

4. The respondent must pay the plaintiff's costs of and incidental to the appeal assessed pursuant to Schedule 2 of the Justices Regulation 2004.

[1] Domestic and Family Violence Protection Act 2012 s37

[2] Domestic and Family Violence Protection Act 2012 s 168(1).

[3] [2003] HCA 22; (2003) 214 CLR 118.

[4] [2011] QCA 233.

[5] Fox v Percy (supra) at 125-126; Commissioner of Police v Toomer (supra) at [21].

[6] Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, 304 (Barwick CJ).

[7] Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519-20 (Stephen J).

[8] Armour v FCA [2012] QMC 22 at [8].

[9] Domestic and Family Violence Protection Act 2012 s 13.

[10] Domestic and Family Violence Protection Act 2012 s 14.

[11] Domestic and Family Violence Protection Act s 18.

[12] Armour v FCA [2012] QMC 22 at [92]

[13] This is the notebook in evidence; transcript of proceedings dated 25 September 2012, p 1-34, line 28.

[14] Domestic and Family Violence Protection Act 2012 s 8.

[15] Armour v FCA [2012] QMC 22 at [89] - [93]

[16] Armour v FCA [2012] QMC 75

[17] Transcript of proceedings dated 25 September 2012, p 1-53 lines 38 - 41, p 1-60 lines 50 - 56.

[18] Transcript of proceedings dated 25 September 2012, p 1-52 lines 54 - 60, p 1-53 lnes 1-2..

[19] Armour v FCA [2012] QMC at 92.

[21] Transcript of proceedings dated 25 September 2012 p 1-47, lines 20-21.

[22] Supreme Court Act 1995 s209 ;Magistrates Court Act 1921 s18.

[23] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150

[24] Domestic and Family Violence Protection Act 2012 s 145.

[25] Transcript of proceedings dated 25 September 2012, p 1-48, lines 1-2.

[26] Transcript of proceedings dated 25 September 2012, p 1-48 lines 8-10.

[27] Transcript of proceedings dated 25 September 2012, p 1-48 lines 20-22.

[28] Transcript of proceedings dated 25 September 2012, p 1-7, lines 1-16.