SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208

Domestic and Family Violence Protection Act 2012 (Qld), s 4, s 8, s 21, s 23, s 32, s 37, s 41C, s 44, s 45, s 52, s 100, s 112, s 145, s 151, s 164, s 168, s 169

SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208 | Case summary | Zoe

[9]

[4] The appellant and the second respondent were in an "intimate relationship" for a period of three months between October 2018 and January 2019. Following an incident on 21 January 2019, the appellant at the request of the second respondent drove the second respondent to the Royal Brisbane Emergency Hospital as she was complaining of a wrist injury. On being triaged upon entry to emergency, the appellant said she had been subjected to domestic violence and requested the police be called.
[5] On hearing the second respondent's accounts, on 22 January 2019 the police determined that the second respondent was in need of protection and Constable Alison Suen issued the appellant a Police Protection Notice.
[6] On 23 January 2019, a temporary protection order was made in the Magistrates Court against the appellant in respect of the second respondent.
[7] On 29 January 2019, the appellant pleaded guilty to two charges of contravening the Police Protection Notice in relation to his subsequent behaviour on 22 January 2019 (the day of the issue of the notice) and on 28 January 2019. The first charge comprised the appellant visiting the residence of a friend, where the second respondent was temporarily residing, in order to collect his house keys which were located at that address. The second charge comprised an incident where the appellant went to the second respondent's temporary residence and was there arrested by police. The appellant was fined $200 for the two breaches and no conviction was recorded.
[8] On 17 June 2019, at a mention of the application brought by police before Acting Magistrate Tynan, the appellant made a number of serious allegations against the second respondent, including that the second respondent had conspired to have him murdered. The appellant was advised that he could bring an application for a protection order and he did so. The magistrate made temporary protection orders in each application. At the conclusion of the hearing that day, the legal representative for the first respondent foreshadowed an application which would prevent the appellant being permitted to personally cross examine the second respondent at the hearing.

[10]

[9] On the first day of the hearing of the applications, on 19 August 2019, there was legal representation for the police commissioner in relation to the application for the benefit of the second respondent. The appellant continued to be self-represented in both applications. There was no appearance by the second respondent, being the respondent to the cross application brought by the appellant. The second respondent did not file any material in response to the appellant's material in the cross application.
[10] At the hearing of the appeal, it was not suggested that the second respondent was not served or aware of either the cross application or the material filed in support of it, and the inference from the information supplied to the magistrate by the legal representative for the police commissioner is that the second respondent was served with, was aware of and intended to respond to, the material filed by the appellant.
[11] The second respondent, being the aggrieved pursuant to the application brought by the police, was automatically a protected witness.[1] Pursuant to s 151(2) of the Act, a court may make an order that a respondent to an application, if not legally represented, not cross examine a protected witness if satisfied that the cross examination by the respondent would cause emotional distress to the protected witness. At the hearing on 19 August 2019, an order was made by Magistrate Bradford-Morgan that the appellant may not cross examine the second respondent. The magistrate said that matter would not be revisited and that would be the rules of engagement when the hearing resumed on 2 December 2019.
[12] At the resumed hearing on 2 December 2019, the police tendered an affidavit of the second respondent sworn 12 April 2019 together with the Police Protection Notice. The appellant tendered two affidavits of himself, one filed 17 July 2019 and the other filed 31 August 2019. The appellant tendered various screenshots of Facebook messages, copies of which the appellant claims were left on the dog house at his parents' property, where he was staying. The screenshots of Facebook messages were marked as exhibits 6, 7, 8 and 9 in the Magistrates Court proceedings. The Facebook messages, being exhibits 6, were of conversations between a work colleague of the appellant and a third party, and exhibits 7 and 8 were of conversations between the second respondent and the same third party. Exhibit 9 contained screenshots taken from the second respondent's Facebook profile which showed there had been a change in the second respondent's profile name and photo.
[13] The second respondent gave some short oral evidence by phone; being questioned solely by the magistrate.
[14] The magistrate granted the protection order in relation to the second respondent's application, but dismissed the appellant's cross application.

[20]

[24] At the hearing of the appeal, the appellant sought to file and adduce further documentary evidence.
[25] The appellant had originally sought to tender some of these documents at the hearing before the magistrate but that was resisted and the appellant did not in the end press their admission. This would appear to have been because he was overwhelmed by the nature of the proceedings.
[26] The documents sought to be admitted by the appellant at the hearing of the appeal were attached to a further affidavit of the appellant, as required pursuant to the order of the court made at the hearing of an interlocutory application. The affidavit of the appellant was filed and served on the respondents on 17 July 2020.
[27] The second respondent was separately legally represented on the appeal on the cross application. Submissions were filed on her behalf. The second respondent did not seek to file any affidavit in response to the material filed by the appellant.
[28] Amongst the documents annexed to the affidavit and which the appellant sought to have admitted on the appeal were various screenshots of Facebook conversations. The appellant had sought to tender this material at the hearing before the magistrate. The respondents maintained their objection at the hearing of the appeal to the tendering of the material.
[29] The basis of the objection by the respondents to the tendering of the screenshots was the absence of proof of their authenticity. The appellant maintained the screenshots had been taken by him and indicated to the court that the Facebook messages could be retrieved on his phone, which he had with him in court.
[30] Ultimately, in relation to the screenshots of Facebook conversations between the appellant and the second respondent, the respondents did not press their objection or require the appellant to give oral evidence to prove the authenticity of the conversations.
[31] The position as regards Facebook messages between the appellant and third parties was different. Assuming the screenshots of those conversations could be authenticated, at their highest they could only be out-of-court statements by persons who did not give evidence, nor were called by any party to give evidence. In any event, screenshots of those conversations were only being sought to be tendered on the issue of credit. The circumstances, in my view, did not justify the admission of this additional material at the hearing of the appeal. I did not permit the tender of those documents.
[32] The appellant also sought to tender the various statements given by the second respondent to the police. The appellant sought to rely on the inconsistencies in the statements to make submissions going to the credit of the second respondent, particularly given that he could not cross examine the second respondent. The respondents consented to the tender of the various statements and they were admitted into evidence.
[33] In addition, the appellant sought to tender screenshots of Facebook conversations between the second respondent and a third party who had made a complaint to police in relation to the appellant. The appellant obtained a copy of these messages from the police but only after the hearing before the magistrate. Those documents were provided to the appellant by police following the bringing of the charge against him for fraud as a result of the complaint. The charge was subsequently discontinued. Given their source, there is no reason to doubt the authenticity of the documents. I allowed the tender.
[34] The appeal was, otherwise, conducted as a rehearing and was decided on the evidence and the proceedings before the Magistrates Court below.

[35]

[50] The first issue that arises is whether the magistrate was correct in approaching the making of the decision on the basis that the court had to determine the person who is most in need of protection and whether it followed that a protection order could only be made in favour of that person and that an order could not also be made against that person.
[51] When that issue was raised with the parties, those representing the respondents conceded the approach of the magistrate was in error. Those concessions were properly made.
[52] The principle in s 4 requires the court to identify the person most in need of a protection order. The Act does not require an order to be made in favour of that person, nor does it exclude an order being made against that person.
[53] The section which enables an order to be made requires that the court be satisfied of three things, namely the existence of a relevant relationship, an act of domestic violence by the respondent against the aggrieved and the necessity or desirability to protect the aggrieved from domestic violence.[14]
[54] Although the Act requires applications and cross applications to be heard together, unless the court considers it necessary to hear applications separately for the safety, protection or well-being of the person named as the aggrieved in the original application,[15] each application is required to be considered separately and on its own merits.
[55] If both applications satisfy the requirements of s 37 then plainly orders should be made under both applications, even if the effect is to protect both parties to the relationship. There is no reason as a matter of principle and practicality why the legislature may not have intended that result. Indeed, the Act specifically envisages that there will be applications and cross applications.[16]
[56] In the present case, the magistrate dismissed the cross application on the ground that the second respondent was most in need of a protection order. In doing so, the magistrate misdirected herself. The magistrate was required to, but failed to, consider each of the matters referred to in s 37 as they applied to the cross application by the appellant; and not decide the two applications on the basis of the principle referred to in s 4(2)(e).
[57] That in itself would be sufficient to uphold the appeal. The Act, however, gives the appellate court power to vary the decision or set it aside and substitute another decision, and not merely to set the decision aside and return the matter back to the court that made the decision. In this case, the appellant relies upon other aspects of the decisions in his appeal. Those matters were fully argued and in my view the proper approach is to deal with those matters, and if possible, make a decision rather than remit both applications back to the Magistrates Court.

[36]

[58] The application for a protection order in favour of the second respondent was based upon events involving the appellant and the second respondent in a motor vehicle on the on-ramp of the motorway leading to the Brisbane Airport on 21 January 2019.
[59] In her affidavit, the second respondent says that, on the road to the airport, an argument broke out between the appellant and the second respondent. The second respondent says she pulled over on the on-ramp and told the appellant to get out of her vehicle multiple times. The appellant refused to get out and the argument escalated into a screaming match.
[60] The second respondent says the appellant grabbed her wrists. When she attempted to get free, she says the appellant head-butted her above her left eyebrow at least three times, causing her to have a headache and two black eyes.
[61] The second respondent says that the appellant told her that she was "going to die tonight" and made some indecipherable comments that sounded like "voodoo chants" to her. She says the appellant accused her of cheating on him. At one point, the second respondent says that the appellant tried to bite a chunk out of her left hand. The second respondent says she feared for her life.
[62] The second respondent says that after approximately two hours, the appellant released the second respondent. He then agreed to drive her to the hospital, as her hands were too sore and swollen to drive. The second respondent said that she couldn't move her hands and she thought they were broken. The second respondent said that to this day, she still has teeth marks in the back of her hand.
[63] The appellant gave a different account of the altercation to that of the second respondent. He says that the second respondent had become unstable and aggressive when she pulled over on the on-ramp and attempted to get out of the car. The appellant said he grabbed her left wrist to restrain her from exiting the vehicle into the path of an oncoming truck. He says he grabbed her left wrist, being the one closest to him.
[64] In his oral evidence, the appellant said that as the second respondent went to hit him with her right arm, he then grabbed her right wrist as well as her left, trying to talk her into calming down. Whilst she was restrained by the wrists, the appellant says that the second respondent head-butted him a number of times.
[65] The appellant said he released her once she had calmed down. The second respondent insisted the appellant drive her to the hospital as she thought her wrists were broken, which he did, stopping at a 7-Eleven on the way, as he was asked to do.
[66] There is some agreement between the appellant and the second respondent in relation to the events leading up to the altercation in the car. The appellant says that he and his work colleague were together at the airport waiting for the second respondent to come to the airport to hire a car in her name for his use. The appellant said that he could not hire a car in his name as he had recently lost his licence and his colleague could not hire the car as his licence had expired.
[67] He says they became impatient, as they had been waiting five hours for the second respondent and he says they then concocted a story that the appellant had been taken into police custody and his colleague was left alone waiting in the airport carpark. The colleague had rung the second respondent and told her this story.
[68] The second respondent says she was happy to hear that the appellant had been taken into custody but that she had gone to the Hendra police station believing that is where they both were and had embarrassed herself.
[69] Once at the airport, the evidence of both is that they went in search of an ATM so that the appellant could put money into her bank account to cover the cost of the car hire. It was during the course of returning to the airport from an ATM that the dispute took place on the on-ramp.
[70] No medical evidence was called with respect to the injuries suffered by the second respondent. In the police protection notice and in the evidence given by Constable Suen, the only injury observed by Constable Suen was slight swelling to the left wrist. In cross examination, when the Constable was asked whether the injury observed was more consistent with the appellant's version of trying to stop the second respondent exiting the car, the Constable said: "I can't comment on that, just that I saw a bit of swelling on her wrist." The Constable accepted that she did not see any teeth marks on the second respondent's hand. She accepted she did not see any bruising or swelling to the eye.
[71] The second respondent attached to her affidavit photographs of what she alleged to be her injuries.
[72] The appellant said that the second respondent was a makeup artist and maintained that it was clear that certain of the images were a product of the use of makeup.
[73] It is impossible to determine the truth or otherwise of the images depicted in the photographs but the fact that the police officer did not notice any injuries of the nature alleged is significant and the explanation offered by the appellant in relation to the photographs is plausible.
[74] In the protection notice, Constable Suen observed that the aggrieved appeared to be confused and was not completely lucid. It stated:

[38]

[75] The notice refers to the appellant telling the Constable that she suffered from bipolar but was medicated.
[76] The notice states that the second respondent made allegations of rape by a different male but said that she believes "it is somehow linked to the respondent". The notice says that the second respondent did not provide any information linking the appellant to the allegations and did not wish to make a formal complaint.
[77] In cross examination, the Constable was asked whether the second respondent was tested for the presence of any drugs. The Constable said she did not believe so.
[78] The notice refers to the text messages viewed that had been sent by the appellant to the second respondent stating, "I'm coming over because I think now it is time to show u the devil in which I warned you and begged you not to provoke". In cross examination, the appellant in fact asked whether the Constable saw the context leading up to and after that message, to which she responded, "I just saw the message."
[79] The police formed the view that the second respondent was most in need of protection and issued a Police Protection Notice naming the second respondent as the aggrieved. The Notice also named her children; who are not the children of the appellant. Under the Act, separate notices could not have been issued naming each of the parties as the aggrieved and respondent respectively.[17]
[80] Despite the observations made by Constable Suen in the notice and her acceptance in cross examination that she did not observe any injuries on the second respondent, other than slight swelling of the left wrist, the magistrate found that the physical injuries observed by the Constable were consistent with reports to the hospital and police by the second respondent. This was despite observing that there were alarming differences between the photographs annexed to the second respondent's affidavit and the injuries observed by Constable Suen.
[81] The oral evidence given by the second respondent was short. It was given by telephone. The only questions asked of her were by the magistrate. It would not justify a favourable finding of credibility.
[82] The unchallenged evidence of Constable Suen would justify the opposite conclusion. The magistrate's finding in relation to the altercation in the car goes against the clear evidence as to the observations made by Constable Suen as to the injuries she observed. The statements made by the second respondent as to the injuries inflicted on her that night simply cannot be accepted at face value.
[83] The magistrate did not accept the appellant's version as to the altercation in the car and found that there was an act of domestic violence. In her reasons, the magistrate stated that the answers provided by the appellant in response to cross examination demonstrated that he was not a witness of credit. The magistrate did not explain why that was so, and, in any event, a finding against the credibility of the appellant would not entitle any court to make a finding in favour the second respondent.
[84] However, the text message sent by the appellant to the second respondent that night, admittedly even if sent when the appellant was feeling completely betrayed knowing that the second respondent was in the hospital and making allegations of domestic violence against him, is very concerning. The reference to "show you the devil" is threatening and would naturally invoke feelings of being unsafe and threatened.
[85] This circumstance is reinforced when considered against the background of what, on the admissions of both persons, was a relationship of short duration that was tumultuous and fuelled by arguments. Both accept there was an argument on the morning of the car incident that led to the police being called and, on the second respondent's own admission, her spitting in the face of the appellant. She says the appellant spat back and, whilst he does not accept that he spat at her, he does admit to spitting.
[86] In these circumstances, the text message would be sufficient to justify the conclusion that there was an event of domestic violence.
[87] Finally, it is clear from the statements made in their affidavits that there are real feelings of animosity towards each other. The appellant describes the second respondent as a "covert malignant narcissist".
[88] In her affidavit, the second respondent says that "I needed to get rid of him as I knew he was too much. The only way I thought I could get through to him was if I got involved with someone else who he didn't like." The second respondent says that since the car incident "there have been ongoing issues which have landed me in hiding and my children sent away." She says that she is concerned that he will come and find her.
[89] Even accepting that the second respondent is not a reliable witness and prone to exaggeration, I am satisfied that the circumstances justify the conclusion that a protection order was necessary.
[90] The appeal against the grant of that order against the appellant is dismissed.

[48]

[96] The appellant told the magistrate that the second respondent had said that he had been involved in the drugging and raping of her, which she said had occurred on the night before the incident in the car. He did not identify to the magistrate when or where that accusation had been made.
[97] The police protection notice records that the aggrieved had told the police that she believed the rape was "somehow linked to the respondent". The notice states that the aggrieved did not provide any information linking the respondent to the allegations and that the aggrieved did not wish to make any complaint.
[98] In the screenshots of Facebook conversations between the second respondent and 'A' and also the screenshots of Facebook conversations between the second respondent and another third party, who was a customer of the kitchen business in which both the appellant and the second respondent were involved,[18] the second respondent refers to having been drugged and raped because of people he was involved with. In one of the screenshots, the second respondent states, "Yes I was drugged and raped because of people [the appellant] was involved with" and in the other, the second respondent states "I was drugged and raped because of [the appellant]".
[99] In the course of being questioned by the magistrate, the second respondent denied that she had ever suggested that the appellant had been involved in that offending. The magistrate accepted that denial and said that was the end of that matter. The magistrate made no reference in giving judgment to the various occasions on which the second respondent had made statements suggesting some level of involvement by the appellant in her drugging and/or raping.
[100] In the Magistrates Court proceedings, the second respondent denied having anything to do with the death of the appellant's dog and questioned the veracity of the Facebook messages. Her evidence was accepted by the magistrate.
[101] However, in a conversation between the second respondent and the third party 'A', which was part of exhibit 7 in the Magistrates Court proceedings, 'A' sends the second respondent a screenshot of an Instagram post by the appellant mourning his dog, and 'A' asks the second respondent, "Did you get someone to kill his dog hahaha that's gold if you did." The second respondent responds "Ummmmmmmmm" followed by a 'shushing' emoji. The two then agree that the appellant's new puppy is "too cute" to kill but that they "could steal him though".
[102] As part of that chain of Facebook messages, 'A' asks the second respondent if she is "any good at altering documents" and then the following exchange occurs:

[63]

[106] All of these messages suggest, in one form or another, the existence of a threat against the appellant and other behaviours consistent with the threats in a way which affects the appellant and causes him to fear for his own safety or wellbeing.
[107] There is no reason to doubt that the message alleged to have been sent by the second respondent to the appellant that she would like to see the appellant go up in "flames" was in fact sent by her. The authenticity of the evidence was not in the end challenged, and the message sits comfortably with the fraud allegations.
[108] That message would satisfy the requirements of s 8(1) and s 37(b) of the Act. It was sent very shortly after the temporary protection order was made and clearly sent in circumstances where there is a high level of animosity and antagonism between the second respondent and the appellant. In my view, the magistrate on this evidence should have found that it was necessary or desirable to protect the appellant from domestic violence and should have made a protection order.
[109] The final issue is whether there is sufficient evidence that the second respondent had counselled or procured the appellant being "bashed" or his dog being killed, or was part of a conspiracy to his being implicated in possession of child pornography. The oral response of the second respondent to the screenshots, upon them being raised by the magistrate, was not to deny being involved in any of the conversations or the event involving the appellant being bashed or the plan to set him up with child pornography, but to allege, without proof, that the appellant had made up these social media posts. That may not be hard, but the conversations in the screenshots are not simple and the task of composing them would have been burdensome. It is not clear that the appellant has the ability to perform such an elaborate falsehood.
[110] Clearly, as the magistrate found, the appellant was and is concerned for his own safety. That is not consistent with him fabricating the social media posts.
[111] Importantly, the second respondent did not swear any affidavit in response, either in this court or the Magistrates Court as to these matters. The allegation that the second respondent is involved in these matters is a serious one, and, although any finding is to be made on the balance of probabilities, the principles referred to in Briginshaw v Briginshaw[20] must therefore be kept firmly in mind.
[112] On the other hand, whilst silence is not necessarily proof, it can be where a court would expect a person to respond to a serious allegation, and evidence is to be weighed according to the capacity of the party to adduce it.
[113] In the end, there was evidence of a threat to the appellant directly from the second respondent and reason to consider that a protection order was accordingly necessary and desirable to protect the appellant from it or physical harm.
[114] The appeal against the refusal to make a protection order is upheld. I will therefore make a protection order naming the appellant as the aggrieved and the second respondent as the respondent.
[115] That order should be in the same terms as the protection order made in favour of the second respondent, namely:

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