FEQ v Commissioner of Police [2025] QDC 186

AMB v TMP & Anor [2019] QDC 100

CEE v CNH [2024] QDC 76

D v G [2004] QDC 477

Gartner v Brennan [2016] WASC 89

A MB Thomas, Office of the Director of Public Prosecutions (Qld), for the respondent

• [1] On 17 October 2024, in the Magistrates Court at Brisbane, the appellant was convicted after a trial of one offence of contravention of a domestic violence order contrary to section 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). The appellant was fined $500 with no conviction recorded. The appellant appeals against his conviction pursuant to section 222 of the Justices Act 1886 (Qld).

• [2] The appellant was represented by counsel during the hearing.
• [3] The appellant pleaded not guilty to a charge:

That on the 1st day of October 2023 at Carseldine in the Sandgate Division of the Brisbane Magistrates Court District in the State of Queensland [he] being a respondent against whom a domestic violence order had been made contravened the order namely the protection order made on 22nd day of March 2023 in the Magistrates Court at Pine Rivers and [he] was present in court when the order was made.

• [4] The appellant was alleged to have breached the condition of the protection order that provided that he "must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved".
• [5] The Police Prosecutor provided written particulars of the charge that included:

On the 1st day of October 2023 the defendant breached the above order by using [sic] calling ... the aggrieved ... a deadbeat mother; and or calling the aggrieved's family and/or friends deadbeats; and/or using offensive language; and/or behaving aggressively towards the aggrieved.

• [6] The aggrieved was the appellant's ex-partner and mother of their one year old child. Their child lived with the aggrieved and the appellant had regular contact. The offence was alleged to have occurred at the conclusion of an occasion of the appellant's contact with his child, when the appellant was returning their child to the aggrieved. Such handover was at a shopping centre. On this occasion, the aggrieved was with a friend at the counter of a cafe when the appellant approached with their daughter.

[The appellant] approached myself and my friend, um, for the handover of our daughter. And he did it quite aggressively, and palmed off [our daughter] over to me, and said "Take your fucking daughter, you're a deadbeat mother, go back and have your deadbeat party with your deadbeat family and your deadbeat friends in your housing commission house." And then he just walked off. I didn't say anything.

• [8] During cross-examination, the aggrieved, when challenged by the appellant's counsel as to the words allegedly spoken by the appellant, maintained her evidence. Then the following exchange occurred:

Now the way he said these things - the way you say he said these things to you was that he whispered it. Is that right? --- Yes.

So he's said these things in a whispered tone? --- In my face. Yes.

Okay. Now of course, you're clear on your evidence in this point. There's no way he was speaking with a raised voice? --- No.

He was just speaking with a whispered voice? --- Yep.

• [9] The aggrieved's friend described events at the handover of the child at the cafe as follows:

So he'd come over, told - said, "Take your effing kid", and then was angry about, like, some poo she had done, done explosive diarrhoea, and then just started going off at [the aggrieved], saying , like, "I hope you have fun at your deadbeat party with your deadbeat friends and your family", and then proceeded to walk off and say, "You're a deadbeat mother, [aggrieved]", got in his car and then flipped the bird as he's driving off with his kid.

• [10] The witness maintained her account under cross-examination. When cross-examined as to whether she discussed the events with the aggrieved prior to them providing their statements to police, she stated:

Not to any depth. Just about her emotions in that time that it happened.

• [11] Further during her cross-examination, the witness described the appellant behaving "passive aggressively" and using a "raised voice" rather than "whispering".
• [12] Constable Cooper Richardson gave evidence of investigating the alleged offence. In the course of that investigation, he and another police officer spoke to the appellant on 16 November 2023. A video recording of parts of that conversation recorded by body worn camera was admitted into evidence. Parts of the audio of that conversation had been deleted, apparently with the acquiescence of the appellant's legal representatives, as irrelevant. The witness was cross-examined about his failure to obtain any CCTV footage of the alleged events, despite the appellant's request on 16 November 2023 that the police do so.
• [13] The appellant elected not to adduce evidence.
• [14] At the commencement of her reasons, the learned Magistrate directed herself as to the fundamental principles of law that applied to her deliberations, including the onus and standard of proof. Her Honour noted the terms of the particulars of the charge.
• [15] Her Honour recounted the evidence of the aggrieved and her friend, noting that she was impressed by the demeanour of both witnesses.
• [16] Her Honour noted the submissions on behalf of the appellant as to the failure of police to obtain CCTV footage of the events at the cafe and stated:

Counsel for the defence was critical of that aspect of the investigation. He conceded that the CCTV might not have had audio but may have assisted in showing the demeanour between the complainant and the defendant. And in circumstances where there's direct evidence from two witnesses on what had occurred, the lack of CCTV footage doesn't diminish the strength of the prosecution case.

• [17] Her Honour rehearsed the respective arguments of the parties. Her Honour considered that each of the prosecution witnesses gave evidence in a manner that was believable and credible. Her Honour accepted the evidence of the aggrieved and her friend that they did not collude in the giving of their evidence. Her Honour concluded her reasons as follows:

Counsel for the defence conceded that sometimes witnesses don't remember things in the same way, and this is such a case, but I am going to find that the defendant did say at least some of the words to the defendant [sic]. I found [the aggrieved's friend's] evidence in particular compelling, and so I accept that the defendant said to [the aggrieved's friend] [sic], "Take your fucking child," and that this occurred in the presence of the child during the handover.

The issue of inconsistency in describing his demeanour, so a whisper as opposed to a raised voice, can be explained in part by the impact of events on each of them. [The aggrieved's friend] was more of a neutral bystander than [the aggrieved], who was the one directly affected. The words related - and so I find that he did say the words, "You're a deadbeat mum," and that related directly to her parenting, and in those circumstances, her emotional reaction to the insult may have heightened her impression, and I accept that there can be a difference with respect to their perception of how something was said. But I find that they were consistent in the words, and I accept that those two lots of words were said.

Those words are denigrating and emotionally abusive. They're, therefore, a breach of the mandatory condition on the order, that is, to be of good behaviour towards the aggrieved and not commit domestic violence. I find those things to the criminal standard, that is, beyond reasonable doubt, and so I find the defendant guilty of contravening the order made on the 22nd of March 2023.

• [18] An appeal against conviction pursuant to section 222 of the Justices Act 1886 (Qld) is to be conducted as a rehearing on the evidence below and on any new evidence adduced with leave.[1] I am required to conduct a real review of the evidence and the learned Magistrate's decision and make my own determination. In order to succeed on such appeal, the appellant must establish some legal, factual or discretionary error.

• [19] The appellant was self-represented on his appeal.
• [20] The appellant's arguments on appeal, as discerned from the Notice of Appeal and his written and oral submissions, asserted three failures of the prosecution to lead relevant evidence, resulting in a want of procedural fairness and an unfair trial.

• [21] Despite the appellant's request of police, repeated during pre-trial mentions and the subject of pre-trial directions, the police failed to obtain any CCTV evidence that might have recorded the appellant's interactions with the aggrieved at the time of the alleged offence. The appellant contended that such footage was vital for accurately assessing the context of the alleged incident, including body language, proximity between parties, and interactions with bystanders. The omission of the evidence should have raised a reasonable doubt.
• [22] The appellant, on first speaking to police about this matter, suggested that they obtain this evidence. During pre-trial correspondence with the prosecution and in submissions on pre-trial mentions, the appellant repeated such request. The appellant is understandably aggrieved that the police failed to take steps to secure such evidence if it was available. However, such evidence, if it existed, would have been of limited utility in assisting the learned Magistrate in determining the issue of whether or not the appellant behaved as alleged by the prosecution. The failure to obtain this evidence would not have justified the exceptional remedy of a stay of the prosecution. It did not render the trial unfair. It did not prevent the learned Magistrate from making findings on the evidence that was available, and did not require her Honour to have a reasonable doubt about the guilt of the appellant.

• [23] The video recording of the conversation between the appellant and police recorded by body worn camera was admitted into evidence. Parts of the audio of that conversation had been deleted, apparently with the acquiescence of the appellant's legal representatives, as irrelevant.
• [24] The respondent obtained a unredacted copy of the video footage. I have compared such footage with that admitted at trial. The deleted audio passages are as follows (by reference to minutes and seconds into the footage):

(a) 4.55 - 5.04: police comment about previous alleged breaches by appellant being "NETO'd";

(b) 6.40 - 6.46: appellant's comment about previous complaint by aggrieved of a breach;

(c) 8.06 - 8.42: appellant's comments regarding family law dispute;

(d) 10.11 - 10.18: appellant's comments regarding family law dispute;

(e) 13.32 - 14.47: conversation between police regarding procedural matters outside presence of appellant;

(f) 15.46 - 15.52: question by police as to whether a solicitor had dealt with the appellant's other matters.

• [25] It does seem irregular to me that such redactions were made. It might have been thought, as regards passages (a), (b) and (f) above, that references to other alleged contraventions of protection order by the appellant were prejudicial and were removed for that reason. Passages (c) and (d) might have been thought to be irrelevant and inadmissible. Passage (e) contained no relevant evidence. But in the absence of objection taken by a defendant to parts of such a recording, all of the recording should be admitted.
• [26] The appellant should be held to reasonable forensic decisions of his counsel in the conduct of his trial. It may well be that counsel decided that, on balance, it was best not to resist admission of the redacted footage. Such a decision would not be unreasonable in circumstances where passages (a), (b) and (f) did contain potentially prejudicial evidence of previous alleged contraventions by the appellant and none of the deleted passages were of substantial, if any, relevance.
• [27] The appellant contended that such redactions deprived the court of essential context necessary to evaluate the aggrieved's credibility. I disagree. I do not think that admission of the deleted audio passages would have affected the learned Magistrate's findings as to credibility of the aggrieved, even if her Honour had regarded such evidence as relevant and admissible for that purpose. I do not consider that such evidence would have assisted the appellant's case. The exclusion of such evidence did not render the trial unfair.

Evidence regarding the aggrieved's breach of a protection order

• [28] After the appellant's conviction and during sentence submissions, the prosecutor referred to the fact of the aggrieved's breach, on 1 January 2024, of a non-contact condition of a protection order in favour of the appellant. The appellant contends that the prosecution clearly knew of such fact prior to trial but failed to disclose such evidence prior to trial. Such evidence was relevant to the credit of both the aggrieved and her friend who gave evidence because, the appellant alleges, the friend was in the company of the aggrieved at the time of her contravention of that protection order. The non-disclosure resulted in unfairness to the appellant.
• [29] The appellant was well aware of the fact of the aggrieved's prior contravention of the protection order at the time of his trial. He could have instructed his counsel to cross-examine the aggrieved and the other witness on such matters. At the request of the appellant, I viewed subsequently disclosed body worn camera footage of police interactions with the appellant and the aggrieved on the occasion of that contravention. The footage contains nothing of relevance to the aggrieved's credibility. The contents arguably reflect poorly on the appellant. Any failure by the prosecution to make pre-trial disclosure of such footage did not cause forensic disadvantage to the appellant. The appellant should be bound by his instructions to counsel at trial and his counsel's reasonable forensic decisions. The trial was not unfair because of this matter.

• [30] The above summary of the appellant's contentions does not accurately reflect the volume and detail of the appellant's impassioned written and oral submissions on appeal, including citation of case authority and legislation. I have had regard to the entirety of those submissions and the entire record of proceedings of the trial. Upon doing so, I have concluded that none of the matters contended by the appellant, separately or cumulatively, rendered the trial unfair.
• [31] Upon my consideration of all the evidence at trial, and recognising the advantage the learned Magistrate had in observing the demeanour of witnesses, I find that it was open to her Honour to make those primary factual findings as to the behaviour of the appellant, based on her Honour's assessments of the credibility of the aggrieved and her friend.

• [32] However, I do not conclude that that is sufficient to dispose of the appeal. As I raised with counsel for the respondent during the hearing, I was concerned by the brevity of the reasons of the learned Magistrate as to why the behaviour of the appellant constituted a contravention of the protection order. Those reasons were as follows:

Those words are denigrating and emotionally abusive. They're, therefore, a breach of the mandatory condition on the order, that is, to be of good behaviour towards the aggrieved and not commit domestic violence.

• [33] Counsel for the respondent submitted the condition that the appellant "must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved" could be read disjunctively, so that breach of the condition could be constituted by a failure to "be of good behaviour toward the aggrieved", even in the absence of proof of commission of domestic violence against the aggrieved. Such a construction would potentially raise real factual difficulties as to whether particular behaviour, not constituting an act of domestic violence as legislatively defined, might nevertheless constitute a failure to "be of good behaviour toward the aggrieved".[2]
• [34] I do not need to resolve that question for the purposes of this appeal. It is clear from the particulars and the reasons of the learned Magistrate that the appellant was convicted on the basis that his behaviour was emotionally abusive, thus an act of domestic violence, and thus a contravention of the condition of the protection order that the appellant "be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved". Counsel for the respondent did not contend otherwise and submitted that the learned Magistrate's conclusion should be read as a finding of domestic violence by reason of the appellant's behaviour being "emotionally abusive"[3] as "offensive to" the aggrieved.[4]

• [35] Section 8 of the DFVPA relevantly provides as follows:

(1) Domestic violence means behaviour, or a pattern of behaviour, by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that -

(2) Behaviour, or a pattern of behaviour, mentioned in subsection (1) -

(b) may be more than 1 act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned in that subsection; and

(c) is to be considered in the context of the relationship between the first person and the second person as a whole.

• [36] Section 8(3) provides for the definition of domestic violence to include particular specified behaviours. All of them are notably more violent types of behaviour than that alleged against the appellant but such subsection is prefaced as not limiting subsections (1) and (2).
• [37] Section 11 relevantly defines "emotional or psychological abuse" as:

11 Meaning of emotional or psychological abuse

Emotional or psychological abuse means behaviour, or a pattern of behaviour, by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

• [38] Section 11 provides examples including "repeated derogatory taunts".
• [39] It might be inferred that the learned Magistrate concluded that the appellant's behaviour was "offensive to" the aggrieved, thus constituting "emotional or psychological abuse"[5], and therefore behaviour that constituted "domestic violence"[6] and thus a contravention of the protection order. Reasons that leave such matters to be inferred are liable to attract appellate scrutiny of their adequacy.
• [40] I am mindful of the restraint to be exercised in finding inadequacy of ex tempore reasons of a Magistrate in the busy domestic violence jurisdiction of their court. I agree with the statement of Judge Byrne KC in CEE v CNH [2024] QDC 76 at [43], citing Gartner v Brennan [2016] WASC 89 at [58]:

The observations of Pritchard J (as her Honour then was) in Gartner v Brennan are apposite, even though the present decision was not delivered ex tempore:

"Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made, but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced)." (footnotes omitted)

• [41] Byrne KC DCJ then went on to note that such observations do not obviate the need for adequate reasons being provided, but did illustrate why some latitude is appropriately given when critically reading them (at [44]).
• [42] Having given such latitude, I nevertheless conclude that the learned Magistrate's reasons do not sufficiently expose her Honour's reasoning to an ultimate conclusion of guilt. In particular, her Honour failed to advert to the terms of section 11 of the DFVPA and give reasons why the appellant's behaviour constituted "emotional or psychological abuse" as defined therein. Such reasons would have exposed whether her Honour applied an objective or subjective test in deciding whether the appellant's behaviour was "offensive to" the aggrieved, in circumstances where there was no evidence from the aggrieved that she was in fact offended.
• [43] The failure of the learned Magistrate to give adequate reasons is an error of law that requires the appeal to be allowed. Remitting the matter for further hearing and determination by the Magistrates Court is an unattractive one in all the circumstances. I consider that, in the particular circumstances of this case, it is the interests of justice that this court rehear and determine the matter.
• [44] Giving due deference to the advantage of the learned Magistrate in determining matters of credibility of witnesses, I proceed on the basis of the correctness of the learned Magistrate's primary findings of fact as to the behaviour of the appellant.
• [45] I direct myself as to the relevant terms of section 8 and 11 of the DFVPA. I construe section 11 as requiring proof that the aggrieved was in fact offended by the appellant's words, that is, the application of a subjective test - objective likelihood of offence being relevant to such proof but is not sufficient of itself.[7] I further proceed on the basis that proof of offence to the aggrieved is not conclusive of guilt - the behaviour must ultimately be such as to be "emotionally or psychologically abusive" within the meaning of that term in section 8(1)(b) of the DFVPA, considered in the context of the relationship between the appellant and the aggrieved as a whole.
• [46] The words spoken by the appellant were derogatory of the aggrieved and her parenting. They were clearly capable of causing offence to the aggrieved. But a subjective test is required - it must be proved that the aggrieved was in fact offended by the insult. The aggrieved did not give evidence that she was in fact offended by the appellant's behaviour. In circumstances where the material shows both the aggrieved and the appellant being prepared to "weaponize" protection orders for the purpose of family law proceedings, I am not prepared to infer merely from the fact of a complaint of a contravention of the protection order that the aggrieved was so offended. The aggrieved's friend's evidence that she subsequently spoke to the aggrieved "about her emotions in that time that it happened" does not provide a sufficient evidentiary basis for such a finding by inference. I am not satisfied, in all the circumstances, that the behaviour of the appellant was "offensive to the" aggrieved so as to be "emotional or psychological abuse" as defined by section 11 of the DFVPA.
• [47] Further, had I been satisfied that the aggrieved was in fact offended, I do not consider that such a finding would be determinative of guilt. Proof of the charge required proof of behaviour that was "emotionally or psychologically abusive".[8] I agree with the comments of Judge Kent KC in AMB v TMP & Anor [2019] QDC 100 at [37]:

... insults, like many other aspects of human interaction, fall on a continuum of seriousness, from completely trivial to very serious; and at a certain point on the continuum it becomes clear that emotional abuse is involved. Drawing the line at the point where this is reached may not be a precise science, and in part depends on the impact on the individual recipient, depending on their particular robustness or otherwise.

• [48] In all the circumstances, and in the absence of evidence from the aggrieved as to the effect of the behaviour on her, I am not satisfied that the appellant's behaviour was "emotionally or psychologically abusive" so as to constitute domestic violence.
• [49] I am not satisfied beyond reasonable doubt that the appellant committed an act of domestic violence against the aggrieved in contravention of the protection order.
• [50] I am left with a reasonable doubt as to the guilt of the appellant of the charge. I find the appellant not guilty.

[1] Justices Act 1886 (Qld), s 223.

[2] See the discussion by McGill DCJ in D v G [2004] QDC 477 at [17]- [22].

[7] See the discussion by McGill DCJ in D v G [2004] QDC 477 at [30]- [32].