PAD v GA [2022] QDC 125

HBY v WBI & Anor [2020] QDC 81, [16]-[18]

R v Hodges [2018] QCA 92; [2019] 1 Qd R 172, [21]

R v Spina [2012] QCA 179, [32]

S R Lewis (Counsel) instructed by Chelsea Emery & Associates for the appellant

N Thirumoorthi instructed by Queensland Police Service Legal Unit for the respondent

• [1] HIS HONOUR: This is an appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld). On 13 September 2021, a Magistrate at Caloundra decided an applicated for a protection order under that legislation. The application was made by a police officer on behalf of the first respondent. The Magistrate decided to make a protection order against the appellant. The essence of the appellant's complaint about the decision is that the Magistrate's conclusion that a protection order was necessary, or desirable, was not one that was reasonably open in the circumstances. In support of this complaint, the appellant seeks to rely upon evidence that was not before the Magistrate at the original hearing.
• [2] Before coming to the relevant parts of the proceeding and the decision below, and the arguments on the appeal, it is necessary to say something of the nature of the appeal to this Court pursuant to section 164. Such was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour's analysis at [16] to [18], which I set out below.
  • [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the 'hearing procedures' for the appeal are:

(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

(2) However, the appellate court may order that the appeal be heard afresh, in whole or part."

• [17] Section 169 of the Act provides that the powers of the appellate court are:

(1) In deciding an appeal, the appellate court may -

(a) confirm the decision appealed against; or

(b) vary the decision appealed against; or

(c) set aside the decision and substitute another decision; or

(d) set aside the decision appealed against and remit the matter to the court that made the decision.

(2) The decision of the appellate court upon an appeal shall be final and conclusive."

• [18] An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]- [3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]- [13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 [2019] HCA 35; (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include "that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.": see s 4(1) of the Act.

[3] One other provision of the Act should be mentioned. Section 145 provides that a court hearing an application for a protection order is not bound by the 'rules of evidence' or 'any practices or procedures applying to courts of record'. As well, the court need only be satisfied of a matter on the balance of probabilities.

• [4] Because the appellant wished to rely upon evidence that was not before the Magistrate, it is appropriate to say something more about the circumstances where this Court might receive evidence when determining an appeal of this kind. As Moynihan QC DCJ observed, the legislation provides that an appeal is to be decided on the evidence and proceedings at first instance. The reception, on an appeal, of evidence that was not before the Magistrate is exceptional. Guidance as to when it is appropriate to receive such evidence may be found in the approach of the common law to 'fresh' and 'new' evidence. The distinction between fresh and new evidence is important. As McMurdo P stated in R v Spina [2012] QCA 179 at [32] (citations omitted):

Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.

• [5] While her Honour's observations related to criminal proceedings, they are apposite here. Parties to any proceeding should generally be held to their conduct at first instance. An appeal by way of rehearing is not to be regarded as an opportunity for a disappointed litigant to try a different approach to the one that failed at first instance. Before a party would be permitted to rely upon new evidence (that is, evidence available at the hearing at first instance), it would usually be necessary for the party to show that the evidence compels the conclusion that the decision at first instance was wrong. In other words, new evidence will only be received where it demonstrates there has been a miscarriage of justice. In the case of fresh evidence, the barrier to admission may be easier to overcome.[1]
• [6] With these principles in mind, I turn to the nature of the proceeding below and the arguments of the parties. The parties to the appeal are the appellant, the first respondent who was the aggrieved in the application at first instance, and the Commissioner of Police who appears exercising the right conferred by section 167 of the Act.
• [7] The appellant, in his written outline, describes his point as a narrow one, the complaint being that it was not open to the Magistrate to conclude an order was necessary or desirable. Such is a prerequisite to the making of a protection order pursuant to section 37 of the Act.[2] This has significance. There is no challenge to the Magistrate's other findings, including that the appellant had committed acts of domestic violence. The focus of the appellant's argument is that, at the time the order was made, the first respondent was not living anywhere near the appellant. In fact, she was living in another part of Queensland many kilometres away, and the appellant seeks to admit evidence to prove this fact. It is said by the appellant that the Magistrate was not made aware of this fact, and that if she had been, she could not have reached the conclusion she did that it was necessary or desirable to make a protection order. It does seem clear that the Magistrate's decision was based in part upon the assumption that the appellant and the first respondent still lived in the same small town. So much is clear from the part of her Honour's decision, where her Honour said:[3]

If an order was not in place, in my view, there is a real risk that he would attempt to contact the aggrieved further, and that domestic violence would likely occur. Notwithstanding the fact, therefore, that the parties do not have children or property issues between them, they live in a small area. The capacity for them to come into contact with one another remains very real, and I find that it is necessary and desirable for an order to be made.

• [8] But a difficulty with the appellant's arguments, in my view, is that it overlooks the other unchallenged findings of the Magistrate. This included finding the appellant had admitted calling the first respondent "a lying bitch" and other things on social media,[4] including text messages sent by the appellant early one morning around Boxing Day 2020.[5] Each of those events were considered by the Magistrate to be acts of domestic violence. Her Honour also found that the appellant did not stop sending messages even when it was clear the first respondent considered such conduct unwelcome.[6] These were all findings about conduct that did not depend upon the parties living near each other for it to occur.
• [9] There are further findings relevant to whether it was necessary or desirable to make a protection order. These included that the appellant did not accept that he had done anything wrong and appeared to continue to blame the first respondent.[7] And, also, what I would describe as findings of an absence of insight on the part of the appellant.[8] On these findings, there could be no fault in the conclusion of the Magistrate that acts of domestic violence had occurred, and that a protection order was necessary or desirable. That is so even if the appellant and the first respondent were living, at the time, far apart. Considering all of the evidence, including that which it is proposed to now rely upon, I would reach the same conclusion on that evidence.
• [10] In these circumstances, even had the appellant or someone else tendered evidence to establish that the first respondent no longer lived in the same town, it would not have led to a different decision on the issue of whether a protection order should have been made. Such an order had to include the standard conditions required by section 56, and the Magistrate could, in her discretion, impose any other condition that was necessary or desirable to protect the aggrieved from domestic violence.[9] The evidence the appellant wishes to rely upon may have had some bearing on the question of discretionary conditions, but I am not persuaded that, even if it were the case that the aggrieved lived elsewhere at the time of the hearing, it was wrong to impose the conditions that the Magistrate did impose.
• [11] Having considered the evidence that was before the Magistrate, the decision of the Magistrate and the proposed new evidence, I am not persuaded that the decision of the Magistrate was affected by error. The proposed new evidence being insufficient to cast doubt on the decision, it should not be admitted. The orders therefore will be, the application for leave to adduce evidence is dismissed, and two, the appeal is dismissed.

[1] R v Hodges [2018] QCA 92; [2019] 1 Qd R 172, [21].

[2] Paragraph 15 of the appellant's outline.

[3] Transcript of decision, p.6, line 7.

[4] Transcript of decision, p. 2, lines 32-35.

[5] Transcript of decision, p. 3 lines 21-27.

[6] Transcript of decision, p.3, lines 38-42.

[7] Transcript of decision, p. 4 lines 11-15.

[8] Transcript of decision, p. 5, lines 13-17.

[9] DFVPA, section 57.