DISTRICT COURT OF QUEENSLAND
CITATION:
DWB v Protheroe [2022] QDC 113
PARTIES:
DWB
(appellant)
v
SENIOR CONSTABLE HELEN PROTHEROE(respondent)
FILE NO/S:
2649/2021
DIVISION:
Appeal
PROCEEDING:
Appeal pursuant to section 168 of the Domestic and Family Violence Protection Act2012 (Q)
ORIGINATING COURT:
Magistrates Court at Caboolture
DELIVERED ON:
20 May 2022
DELIVERED AT:
Cairns
HEARING DATE:
11 May 2022
JUDGES:
Smith DCJA
ORDER:
1. The appeal is allowed.
2. The order made in the Caboolture Magistrates Court on 13 September 2021 is set aside.
3. I remit the matter for retrial in the Caboolture Magistrates Court to be tried by a different Magistrate.
4. I will hear the parties on the question of costs.
CATCHWORDS:
FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – whether act of domestic violence could be proved – whether sufficient reasons given for decision – whether protection order should have been made – whether matter should be remitted to the Magistrates Court for rehearing
Domestic and Family Violence Protection Act 2012 (Q) ss 145, 168, 169
A v Director of Family Services (1996) 132 FLR 172; 20 Fam LR 549, cited
AK v Western Australia [2008] HCA 8; 232 CLR 438, applied
DL v R [2018] HCA 26; 266 CLR 1, applied
Fox v Percy [2003] HCA 22; 214 CLR 118, applied
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, applied
Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, applied
NRMA Insurance Limited v Tatt (1989) 94 FLR 339; 92 ALR 299, applied
Pettit v Dunkley [1971] 1 NSWLR 376, applied
Robinson Helicopter Company v McDermott (2016) 90 ALJR 679; [2016] HCA 22, applied
R v War Pensions Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, cited
Rodriguez v Telstra [2002] FCA 30; 66 ALD 579, cited
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied
Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, citedCOUNSEL:
Mr A Rana for the appellant
Mr M Lyell for the respondentSOLICITORS:
GTC Lawyers for the appellant
Queensland Police Service Legal Unit for the respondentIntroduction
This is an appeal against the decision of the Magistrates Court at Caboolture to grant a protection order in favour of the PSB given on 13 September 2021.
The nature of the appeal is set out in s 168 of the Domestic and Family Violence Protection Act 2012 (Q) (“DVA”). The court’s powers are set out in s 169 of the DVA.
In order to succeed in such an appeal the appellant would need to establish legal factual or discretionary error.[1]
[1] Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 [4].
Notice of Appeal
The notice of appeal alleges the appeal is on the following grounds:
(a)The Magistrate erred in finding the appellant had committed an act of domestic violence against the respondent namely physical violence when such a finding was not open on the evidence.
(b)The Magistrate failed to address the issue of motive when considering the reliability of the witness Lewis.
(c)The Magistrate failed to consider the credibility and reliability of the witness Lewis adequately.
(d)The Magistrate erred in determining that issues of direct relevance were peripheral.
(e)The Magistrate erred in finding the evidence of the appellant was diminished during cross-examination.
(f)The Magistrate failed to draw Jones v Dunkel[2] inferences.
(g)The Magistrate erred in finding the order was necessary or desirable.
[2][1959] HCA 8; (1959) 101 CLR 298.
In order to consider these grounds of appeal there is a need to consider the material which was before the Magistrate.
The respondent’s case
Officer Protheroe
Senior Constable Protheroe provided an affidavit sworn 22 October 2020. She recalled the events of 16 August 2020. She knew the aggrieved, PSB and the appellant, DWB.
At 10.30pm police were dispatched to attend an address in Caboolture in respect of a disturbance. Witnesses could hear a female yelling and screaming “no more no more.” Male voices could also be heard yelling. On arrival, she activated her body worn camera which was tendered as evidence. A male person, Darren Lewis, exited a side gate requesting urgent police assistance saying, “please hurry up there’s blood everywhere.” Constable Protheroe walked to the back of the dwelling and saw a male lying on the ground (the appellant DWB) bleeding extensively from a serious injury to the back of his head. Ambulance officers attended and he was transported to the Caboolture Hospital for treatment. She then had a conversation with Lewis. Lewis told her that he’d been there earlier; DWB and his wife were arguing. DWB grabbed his wife around the throat and punched her in the head and pushed her into a pot plant. When she got up she had a cut on her hand.[3] He rang his mate “Rhino” and she was then taken to the hospital.
[3]This later changed in his evidence to an arm injury.
Officer Protheroe then saw a large pot plant knocked over and a handful of hair which she believed belonged to the aggrieved on the hook above the pot plant.[4] Lewis also told her that DWB had guns and PSB told him that he bashed her once a week.
[4]This was later proved to be incorrect- the aggrieved did not lose any hair.
After taking PSB to the hospital Lewis said he returned because he had a feeling that something was wrong and found DWB leaning over a fence bleeding. An ambulance was called. He then went upstairs to get a towel and there was blood everywhere.
Protheroe then went and spoke with the neighbours who said that at about 9.30pm they heard a female yelling “no more no more.” The neighbours wish to remain anonymous. Protheroe then returned to the incident location. As PSB and the appellant were both hospitalised for their injuries she was unable to speak to either party. However, based on her observations at the scene and the information she believed PSB was in need of protection. As a result of this, an application for a domestic violence protection order was made.
On 17 August 2020, Protheroe returned to the house and she observed blood splattered over the kitchen and dining room.
The body worn camera footage was tendered. The following conversation occurred:
Lewis:he fell the fuck over we put his wife into hospital. I come around to have a beer with him, this fucker’s fell over and there is blood everywhere. I come back on my own feelings of there’s something not right.
Police:Is that blood on your pants?[5]
[5]Lewis did not respond to this.
Lewis:Look on the ground right there. He punches his wife up…
Lewis:He fell over come inside have a look..
Police:What’s he fallen on?
Lewis:On the fridge here and then he’s fallen down the stairs and then he’s gone over there…
Police:So how did he hit his head?
Lewis:I took his wife out here with a mate of mine because he was punching her … I come back … (appellant) I’m to tell them the truth you punched her in the head and you grabbed her by the throat he’s a mate a good guy.
Police:Is this [appellant] good we have got the right guy?
Lewis:I come back because he was I mean look at all the blood over there. There is that much blood over there I come in and see him leaning over there I had a feeling that something wasn’t right so I put his wife in the hospital it’s not cool look at the blood over there look at blood over there it’s everywhere. I walked into the house to get a towel and I’m not lying there is that much blood it’s not funny [appellant]. I’m sorry mate.[6]
[6]It is unusual the witness would apologise to the appellant unless he did something to apologise for.
Police:You need to step back.
Lewis:Yep I’m sorry (whispers) He bashed his wife.
Police:Yeah I understand that mate OK
Lewis:I was worried about him because when I left with his wife with my mate he was like (inaudible) I walked in the side before and there’s blood everywhere…
(Discussion with appellant)
Lewis:I’m here for you [appellant]
Ambulance: Where is the injury?
Lewis:At the back of his head right here. [appellant] I’m here for you. You need to stop it you need to stop the violence. Look at all the blood here look at it.
Police:Mate you need to stop it…
Lewis:I had this mate come here look.
Police:Mate I don’t care what happened before…
Lewis:I’m going, I’m going I don’t need this.
Police:Well you’ve come…
Lewis:I’m trying to protect him
Police:How did you get in?
Lewis:Gate over there.
Police:How do you know he fell over?
Lewis:He told me he fell over, look at the house, go into the house. Are you Police officers or not?
Police:Yes but at the moment …
Lewis:Well go have a look at the house
Police:Mate don’t tell me how to do my job…
Police:(To ambulance) He is saying he has fallen but looks like he has been in a fight, he touched his Mrs up.
Lewis:I’m here for you mate. I’m here mate… don’t pass out just keep yourself in hospital… I’m here for you [appellant], I’m here for you.
(The appellant was placed on a stretcher and Lewis was consistently yelling and interrupting.)
Police:You are under arrest for assault.
Lewis:Yep…
Police:Are you on bail
Lewis:Yes I’m on bail conditions. I got to sign in every Monday…
Lewis:Yeah but what am I in trouble for?
Lewis:I’ve done nothing wrong
Police:In relation to assault…
I form the clear view that Lewis was grossly intoxicated and belligerent.
It seems highly unusual that Mr Lewis would apologise to the appellant if he had nothing to do with the injury.
In cross-examination the witness conceded she didn’t speak to “Rhino” at any point.[7] She agreed the only source of information she had, was based on what Lewis told her.[8] She didn’t recall any injuries to the aggrieved.[9] She didn’t obtain any medical records from the hospital. The appellant clarified at a later time that it was not the aggrieved’s hair on the pot plant.[10] The aggrieved declined to provide a statement.[11] Her application was entirely based on what Lewis told her.[12] She did not make attempts to get statements from the neighbours upon finding the matter was listed for hearing.[13] She agreed that Mr Lewis was on bail for other offending and that he’d been arrested for assault.[14] She was not involved with the arrest of Mr Lewis.
[7]Transcript p 11.5.
[8]Transcript p 11.22.
[9]Transcript p 11.
[10]Transcript p 12.25.
[11]Transcript p 13.1.
[12]Transcript p 13.35.
[13]Transcript p 14.40.
[14]Transcript p 15.7.
Officer Pound
Morgan Pound in his affidavit says he attended the address to assist other police at 11.10pm. He also saw the appellant on the ground covered in blood from a large cut on the back of his head. He also activated his body worn camera. Pound also spoke to Mr Lewis. Mr Lewis said:
“All I know is he grabbed his wife by the throat I was sitting in the backyard with him. Next thing you know he threw her to the ground and then fuckin grabbed her by the arm. She’s at Caboolture Hospital right now right this second. I had a mate come over cause he has guns and I then fuckin ring his father that knows him to make sure that he’s safe.”
The appellant was spoken to at the hospital and he said, “there are times you have to protect your life stand up for yourself.” The appellant told a doctor he had not been knocked out and could recall what happened. Pound asked the appellant about people hearing the words “no more” and asked him whether he remembered who was yelling that out. He said “don’t know maybe the ex.”
Officer Perkins
Brett Perkins, a Senior Constable of police, in his affidavit says he attended the address at 11.15pm. On his arrival Mr Lewis was in the driveway. He appeared intoxicated and was belligerent. He said he removed the appellant from his wife after the appellant assaulted her and drove her to a hospital with another male. He went back to the appellant’s house after having a feeling there might be something wrong and located him in the rear yard with a large laceration to his head.
The officer then saw the appellant with a large gash to the rear of his head conscious and breathing but intoxicated. He also observed at the rear door the sliding glass door was cracked and there was a damaged pot plant and stand near the door. There was a large clump of what appeared to be long blond hair on the ground near the rear door. There was also a pool of blood in the kitchen area and smears on most walls in the house and the bathroom. Lewis then entered the house and was belligerent and Perkins asked a crew to arrest him for assault.
After this, Perkins went to the hospital and had a conversation with the aggrieved and activated his body worn camera. The only injury he saw was bruising on the arm consistent with a scrape. The aggrieved said she had fallen down steps. The aggrieved said their painter (Lewis) and the appellant had a disagreement. She was not missing any hair. She repeated that she’s fallen down the stairs. She denied her husband had assaulted her.
She’d had four glasses of bourbon that night. Mr Lewis didn’t bring her to the hospital, he’d rung up a friend. She denied that domestic violence had occurred between her and her husband. She said her husband had not hurt her she fell down the steps and hurt herself. Her husband and Lewis had a fight between themselves and that was their problem. She denied that her husband assaulted her. The officer asked her where she was hurt and she showed him her arm.
The officer said there was bruising on the arm consistent with scraping an object. There did not appear to be a hand or finger-marks. Lewis was their painter. The aggrieved was adamant that nothing had occurred and she’d fallen down the steps. The officer did not observe any obvious missing hair or injury to the scalp which he would have expected if hair had been pulled from the scalp. She said it wasn’t true that the appellant assaulted her.
Officer Mukavec
Constable Rebecca Mukavec in her affidavit said she attended the address with Senior Constable Protheroe at about 11.00 pm on 16 August 2020.
Officer Mukavec also operated her body worn camera footage. When they arrived there they saw Mr Lewis there. They went to the rear of the dwelling and DWB was lying on the concrete floor with a large pool of blood around his head. While QAS officers were treating DWB, Mr Lewis continually interrupted QAS officers and approached both her and Protheroe and was talking about a previous incident. Lewis was told several times they were more concerned about DWB’s health. Eventually the appellant was taken on a stretcher to the ambulance. Later, the witness saw large amounts of blood throughout the house. Lewis was then arrested in relation to assault and placed in handcuffs. The CIB later attended and Lewis was then released from custody.
Officer Koch
Thomas Koch, a Constable of police, in his affidavit says he also attended the address. He saw the appellant lying on the ground with Lewis kneeling on the ground next to him. The appellant asked Lewis “did you take my wife to the hospital” and Lewis said, “yeah and I just protected her and made sure she got to hospital because of what happened.” Later, the witness saw that the appellant had a deep laceration to the back of his head. He was transported to the Caboolture Hospital. At the hospital Koch had a brief conversation with him. He said he didn’t know what happened to him and that he’d been drinking that night.
Officer Reimers
Senior Constable Reimers in his affidavit says he attended the address. He later served the appellant with domestic violence paperwork. The appellant was not happy and said to him that he would never do anything to his wife.
Officer Greymore
Senior Constable Greymore in his affidavit attended the address with Officer Perkins. He said that he smelt alcohol on Mr Lewis who appeared very agitated by what was happening. Lewis said he’d been at the address earlier and he’d taken the appellant’s partner to hospital after the appellant had hit her. Lewis appeared very intoxicated and at times didn’t make sense with what he was saying. Lewis was later arrested but after speaking to a detective, he was released.
Darren Lewis
Darren Lewis in his evidence said that on 16 August 2020 he was living just off King Street, Caboolture. He alleged that the appellant walked over in the driveway. A dog had urinated on his car wheels. The appellant said to the owner “I’ll kick that mutt up the guts and I’ll shoot the bastard.” The owner of the property who owned the dog was upset and wanted to fight the appellant. He then said the appellant came up on to the deck and started drinking home brew and spirits.
The appellant’s wife said, “do you know that [the appellant] beats me up more than once a week.” Lewis said, “what did you just say P?” She said it again and the appellant grabbed her hair she fell to the ground ripped her arm and tore skin off her arm and Lewis came around from the other side of the table and said, “fucking leave her alone you grub.”[15] Lewis then said he came around and tried stopping the appellant from attacking his wife and went to pick her up and put her back on the chair, when the appellant then tried attacking him and during the attack he kept falling back and when he ripped Lewis’ shirt, Lewis hit him in the mouth twice.[16] Lewis said he was going to ring an ambulance but they didn’t want one so Lewis called Michael Ryan who came and picked up the aggrieved and they took her to hospital. Lewis alleged that he had a funny feeling that the aggrieved was going to get out of hospital and go home so Lewis walked to the house, the gates were opened, he walked in and he alleged that the appellant was covered in blood near the back vegie garden, that he’d fallen down the stairs and smashed his head open.[17] He alleged that he knew the appellant had fallen down the stairs because he could see blood all over the bottom of the stairs and he alleged he ran in and got a towel to wrap the head up because the head was bleeding. By this time the ambulance and police were on the way. He was arrested but then unarrested.[18] He alleged that for no particular reason the wife said, “you know Dave beats on me more than once a week.”[19] He repeated the allegation her right arm was ripped- the skin was torn off.[20]
[15]Transcript p 28.15.
[16]Transcript p 28.45.
[17]Transcript p 29.7.
[18]Transcript p 29.15.
[19]Transcript p 29.22.
[20]Transcript p 29.35.
He alleged that the appellant grabbed her and grabbed her hair.[21]
[21]Transcript p 29.30. This is contrary to the evidence of Officer Perkins who observed no injury to the hair area of the aggrieved.
In cross-examination, the witness alleged that on the way to the hospital the aggrieved alleged that the appellant had beaten her up more than once a week.[22] He said that Michael Ryan dropped him home and he remained at home for 20 minutes and then walked back to the appellant’s house.[23] He alleged he had a feeling the aggrieved was going to go straight home.[24] He alleged that he was going to check on the aggrieved.[25] The difficulty with this evidence of course is he had no idea that the aggrieved had gone back home from hospital. He agreed he’d never told the police immediately about his account concerning the dog urinating on the wheels.[26] He said he did not want to give a statement to start with but had spoken to the police about a month prior to his evidence.[27] He alleged that once he received a subpeona he told the police he wanted “nothing to do with this shit.”[28] In my opinion, the witness was unresponsive and then said without any question “it’s starting to get me pretty shitty actually because you’re asking pretty stupid questions … who cares what I bought at the servo mate …”[29] Indeed the prosecutor asked for a five minute break for Mr Lewis to calm down.[30]
[22]Transcript p 30.20.
[23]Transcript p 31.5.
[24]Transcript p 31.32.
[25]Transcript p 32.15.
[26]Transcript p 32.30.
[27]Transcript p 33.5.
[28]Transcript p 34.1.
[29]Transcript p 34.30. It is my opinion this shows that the witness is an aggressive sort of individual who could not contain his behaviour in court.
[30]Transcript p 34.45.
He alleged that when he attended the appellant’s address there was no discussion which led aggrieved to make the allegation against the appellant.[31] He said he hadn’t known these people for long and had only met them through Michael Ryan. He alleged this was the first thing she said to him.[32] He alleged that the appellant tried to grab the aggrieved by the throat and grabbed a whole handful of hair.[33] He alleged that he tore her whole arm as she had frail skin.[34] He gave evidence her skin was hanging.[35] He alleged that as he went to pick up the aggrieved the appellant attacked him.[36] The witness admitted hitting him back by two punches straight to the mouth.[37] He admitted that the appellant went to the ground after this.[38] He alleged they got the appellant up on to a chair.[39] He then alleged that Michael Ryan arrived after this and he was trying to hold onto Michael Ryan when they were trying to get the aggrieved to the hospital.[40] He said that the first time he tried to defend himself and the second time the appellant was trying to rip his shirt off and again he hit him in the mouth four times.[41] He alleged his t-shirt was ripped in half but he claimed he didn’t know where it was. He still hadn’t found it.[42] He alleged that the appellant had a bit of blood around the lips from where he hit him.[43] He denied the appellant fell backwards.[44] He alleged the appellant told him later that he’d fallen down the stairs.[45] He alleged that he had a coherent conversation with him.[46] He alleged that the appellant was still trying to be aggressive trying to tackle him by the legs and he just stood away from him and then the police and the ambulance came.[47] He admitted the appellant couldn’t stand up because he was pretty drunk.[48] He was arrested and asked the police why he was being arrested and then he was unarrested.[49] He said that he told police that the appellant beat his wife that night and that he had hit the appellant twice in the mouth.[50] He claimed he was “pissed” but “not drunk”.[51] He claimed that when he was being arrested he told the police his version.[52] He claimed he tried ringing 000 when the aggrieved was attacked but he rang Michael Ryan instead of ringing an ambulance or the police.[53] He admitted he was stupid not calling the police.[54] The appellant admitted there was blood everywhere throughout the house and there was smashed glass.[55] He claimed that he found him at the bottom of the stairs. The appellant said he’d fallen down the stairs and yet there was blood throughout the house.[56] He claimed he only hit the appellant to try and protect himself.[57] He claimed he did not cause the head injury to the appellant.[58] He repeated his contention that the appellant was coherent just prior to the police attending.[59] He denied being on bail at the time.[60] He claimed he was not concerned the police were going to charge him.[61] It was only after he was unarrested that the told police what the aggrieved alleged.[62] He denied he was arrested because he’d caused the injury to the back of the appellant’s head.[63] He said that Michael Ryan was a witness to the incident.[64] He claimed that Michael Ryan heard what the aggrieved was alleging about the appellant.[65]
[31]Transcript p 35.32.
[32]Transcript p 36.15.
[33]Transcript p 36.25.
[34]Transcript p 36.45.
[35]Transcript p 37.17.
[36]Transcript p 38.32.
[37]Transcript p 39.3.
[38]Transcript p 39.5.
[39]Transcript p 39.37. I thought that an important slip this indicates there was more than one of them there at the time.
[40]Transcript p 40.10.
[41]Transcript p 40.15.
[42]Transcript p 40.37.
[43]Transcript p 41.1.
[44]Transcript p 41.5.
[45]Transcript p 41.30.
[46]Transcript p 42.1.
[47]Transcript p 42.17.
[48]Transcript p 42.30.
[49]Transcript p 43.10.
[50]Transcript p 45.15.
[51]Transcript p 46.25.
[52]Transcript p 47.7.
[53]Transcript p 47.20.
[54]Transcript p 47.42.
[55]Transcript p 48.22.
[56]Transcript p 49.5-20.
[57]Transcript p 51.22.
[58]Transcript p 51.30.
[59]Transcript p 52.35.
[60]Transcript p 57.40.
[61]Transcript p 58.5.
[62]Transcript p 60.5.
[63]Transcript p 62.4.
[64]Transcript p 61.32.
[65]Transcript p 62.5 and p 64.20.
The appellant’s evidence
The appellant in his first affidavit said he did not push the aggrieved into a pot plant. The aggrieved slipped and fell down a flight of stairs at the back of the house. She did not at any time connect with the pot plant. He denied that there was any need for any domestic violence order. He denied any allegations he abused or assaulted the aggrieved once a week or at all. He said the aggrieved and he were both drinking. She was upset with him but could not recall why. The aggrieved slipped and fell down a flight of stairs. Lewis was not present for this. He’d previously told Lewis to leave the house. There was a fight between he and Lewis and Lewis struck him to the head and as a result he had a head injury. He and the aggrieved had a happy relationship and there was no domestic violence.
In a second affidavit he said the hair referred to in Protheroe’s affidavit was actually a cow tail fly squatter not the aggrieved’s hair.
In a third affidavit he produced a photo showing the staircase on which the aggrieved slipped was no more than four steps. After she slipped he walked over to her and helped her back to her feet. He could only see a scratch on her arm. She said she was okay.
Exhibit B was a transcript of the interview between the aggrieved and the police in which she says that she fell down the steps and that Lewis and the appellant had a fight between themselves. There was also a transcript of the conversation between Lewis and other police.
The appellant in his evidence said he was born in 1957. He adopted the affidavits.
In cross-examination he admitted he had started drinking beer and finished with bourbon.[66]
[66]Transcript p 72.12.
The appellant didn’t recall when he’d stopped drinking and didn’t recall how much he’d drunk[67]. He accepted he suffered a significant head injury that evening and was taken to hospital for this. He admitted he didn’t wish to make a complaint when the police spoke to him[68]. He did not recall that the injury was serious enough for him to go to hospital[69]. He said that Mr Lewis, over about two or three months before the incident, had started making untoward advances toward his wife, and the argument was about this.[70] He recalled his wife being upset with him.[71] He recalled very little about what happened that evening.[72] He was still in a relationship with the aggrieved and they lived together. He did not recall hearing his wife say that he beat her up once a week. He denied grabbing his wife around the neck and denied causing an injury to her arm.[73] Domestic violence did not happen weekly.[74]
[67]Transcript p 71.15
[68]Transcript p 72.30
[69]Transcript p 73.25
[70]Transcript p 73.35
[71]Transcript p 73.46
[72]Transcript p 74.5
[73]Transcript p 75.
[74]Transcript p 76.10
Appellant’s submissions below
The appellant submitted that the incident of domestic violence was the allegation the appellant caused the aggrieved to fall onto a pot plant and causing injury to her arm. As to the hair that was found, Protheroe ultimately seemed to agree that the hair did not belong to the aggrieved. It should be taken into account that Perkins on his examination of the aggrieved saw injuries consistent with a fall or accident. Crucially, there was no evidence before the court as to the precise injuries suffered by the aggrieved. The court would have doubts about Mr Lewis’s evidence. On his account, it was only out of the blue that the aggrieved had disclosed to him that she’d been the subject of domestic violence. Mr Lewis’ evidence needed to be considered in the context of the absence of medical records. There was no confirmation Lewis called triple zero. There was no attempt made to get a statement from the aggrieved. There was no attempt made to get a statement from Michael Ryan. It was submitted that Lewis’s evidence was inconsistent with what he told police on the day. It was submitted that his alcohol consumption should be taken into account. It was only when the blood was mentioned to Lewis that he started making allegations the appellant committed domestic violence. It should be taken into account that Lewis was the one who was arrested for assault because of the significant injury to the appellant. The aggrieved denied Lewis’s assertions to Officer Perkins. There was no reason for her to lie. Limited weight should be placed on Lewis’s evidence. His evidence justifying his return to the house was improbable. His evidence about the appellant falling down the stairs should not be accepted. It would be taken into account there was blood throughout the house and blood on Lewis’s clothes. It was submitted that Lewis lied about the reason he went back to the house. He alleged that the appellant grabbed the aggrieved’s hair but there was no evidence supporting this assertion. He alleged that the appellant grabbed her by the throat, but his evidence was not clear on this. It would be taken into account that Mr Lewis continually tried to interrupt the police investigation and he was belligerent. It was submitted that it would not be accepted there was an act of domestic violence. There was a disagreement between the appellant and Mr Lewis but that was their issue. The court would accept the appellant’s version as being credible. He did not make any attempts to dress his evidence up and was consistent with Senior Constable Perkins’ evidence. It was submitted that because a number of witnesses and documents were not called by the police, a Jones v Dunkel inference should be drawn, namely the absence of medical records, the absence of any triple zero call, the failing in a statement from the aggrieved, the failure to make contact with Mr Ryan, the failure to inform herself of Mr Lewis’s bail situation or criminal history.
Respondent’s submissions below
The respondent submitted that there was no need to have the personal evidence of the aggrieved. The respondent relied on the disclosures made by Mr Lewis. It was submitted that Mr Lewis was affected by alcohol but was not as drunk as the appellant. He was consistent in his evidence there was a grab to the aggrieved. He told the police of these things on the night in question. He was consistent in cross examination. It was submitted there was no incentive to lie and he gave a similar version. It should be taken into account there was evidence a pot plant was knocked over and that neighbours reported hearing a few different voices and a woman screaming. Senior Constable Perkins observed a bruise to the arm. It is not uncommon for aggrieved persons to deny domestic violence had occurred. On the balance of probabilities, an act of domestic violence had been established and it was necessary or desirable for the order to be made because they still lived together. She was a person in need of protection.
Decision
The Magistrate in his decision referred to the affidavit evidence, the elements in dispute and the evidence called by the parties. The Magistrate said that he had the opportunity to listen carefully to the evidence and observe the witnesses. The Magistrate considered the police evidence to be credible and consistent. He accepted Mr Lewis had trouble with the chronology of some of the events. He considered the appellant’s evidence unimpressive, vague and unconvincing and diminished by cross examination. The Magistrate though gave no reasons for this. He then said Mr Lewis’s errors were only peripheral and did not detract from his evidence. Overall, he formed the view that Mr Lewis’s evidence was forthright and unequivocal. He accepted Mr Lewis’s evidence where it conflicted with the appellant’s evidence. In those circumstances he found domestic violence had occurred, there was a risk of it and it was necessary or desirable to make the order.
Appellant’s submissions to this court
The appellant submits that the Magistrate erred in finding the appellant committed an act of domestic violence against the aggrieved and erred in accepting the evidence of Mr Lewis. It is submitted that he gave little to no reasons for accepting Mr Lewis’s evidence. Mr Lewis’ accounts were inconsistent. There was a significant departure between his recorded account and his evidence before the court. He also gave inconsistent evidence that he found the appellant hanging over a fence, when in fact he led the police to the appellant lying on the ground. He maintained he was not arrested on suspicion of assault in his evidence, contrary to the police evidence. It was ultimately submitted the Magistrate gave insufficient reasons for accepting Mr Lewis. It was also submitted the Magistrate gave insufficient reasons as to why the appellant’s evidence was not accepted.
Finally, it is submitted the Magistrate erred in failing to draw any Jones v Dunkel inferences as to the respondent’s failure to obtain an affidavit from the aggrieved, to call Michael Ryan, to confirm whether Mr Lewis called triple zero and to lead medical evidence.
The appellant’s oral submissions largely repeated the written submissions. In particular the appellant pointed out the following inconsistencies between Lewis’ account to the police and his evidence:
(a)He made no mention of punching the appellant to the police.
(b)He did not mention that the wife said she was bashed once a week, until after his arrest.
(c)He alleged to the police he found the appellant where he was lying. In evidence he said it was over the back fence.
(d)He alleged in his evidence the appellant fell down the stairs twice.
It is submitted the Magistrate gave inadequate reasons for his factual findings. He did not deal with the aggrieved’s account insofar as it conflicted with Lewis’. He did not deal with Officer Perkins’ observations. He did not deal with the motive to lie submissions. He did not deal with the Jones v Dunkel submissions as to the evidence not called.
In reply the appellant submitted there was nothing to the respondent’s submission about the appellant asking whether Lewis had taken his wife to hospital and the response.
It was submitted that this court should dispose of the matter. The matter was fully litigated below and this court has the full evidence. Lewis’ demeanour can be observed in the recording. Also, there would be a significant delay if the matter was remitted.
In those circumstances the appeal should be allowed.
Respondent’s submissions
The respondent submits that the evidence of Mr Lewis was central to the respondent’s case. It is submitted that it was necessary for the court to apply a critical mind to the assessment of Mr Lewis’s evidence. It is submitted the Magistrate did consider the credibility and reliability of Mr Lewis, and it was open to him to reject the attack on Mr Lewis’s honesty. It was submitted that the Magistrate’s finding in those circumstances that an act of domestic violence occurred was open on the evidence. It was submitted that Mr Lewis’s evidence was corroborated by the observations of Senior Constable Perkins. It was submitted that the Magistrate was entitled to reject the evidence of the appellant given his lack of memory in evidence. As to the Jones v Dunkel point, it is submitted that it was open to the appellant to call other witnesses but in any event the Magistrate was aware of these points and no error of law has been disclosed on this ground.
In oral submissions the respondent largely repeated her submissions. It was submitted that:
(a)There was evidence available to draw the inference Lewis did call the police.
(b)As to the arguments raised by the appellant, the Magistrate was fully aware of the arguments relied on by the appellant and it may be inferred he took them all into account.
(c)It should be taken into account that the trial only occurred in one day and the decision was an ex-tempore one. The reasons were sufficient in circumstances of this case.
(d)Mr Lewis’ evidence could be accepted by the Magistrate. The fact is he did admit punching the appellant in his evidence.
(e)The Magistrate was in a better position than this court to see and hear the witnesses.
(f)Mr Lewis was an unsophisticated witness which would explain some of his conduct.
(g)What he said to the appellant when he was asked whether the wife had been taken to hospital was consistent with his account.
(h)If one reads the appellant’s evidence one can understand why the Magistrate rejected the evidence.
(i)Also the appellant’s lawyer was asked if he required further reasons.
If the court considered the reasons to be inadequate then the respondent submits that the matter should be remitted for rehearing so that the matter can be appropriately litigated in the Magistrates’ court.
It was also submitted the police officer brought the application in good faith on the evidence available to her at the time.
In those circumstances the appeal should be dismissed.
Discussion
It is true that an appeal court should take into account the advantages enjoyed by a Magistrate in assessing the credibility and reliability of witnesses.[75] But an appeal court may interfere with findings of fact where they are “glaringly improbable” or “contrary to compelling inferences” or are demonstrated to be wrong by “incontrovertible facts or compelling testimony.”[76]
[75]Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
[76]Robinson Helicopter Company v McDermott (2016) 90 ALJR 679; [2016] HCA 22 at [43].
These principles are also subject to the requirement of a court to give adequate reasons for its decision. The failure to give adequate reasons amounts to an error of law.[77]
[77]Pettit v Dunkley [1971] 1 NSWLR 376.
In Soulemezis v Dudley (Holdings) Pty Ltd[78] Kirby P said:
“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.”
[78] (1987) 10 NSWLR 247 at p 259.
Samuels AJ in NRMA Insurance Limited v Tatt[79] said:
“It is to my mind impossible for a Judge to make a finding of credit in a vacuum as it were without relating the witness’s evidence, demeanour and particular circumstances to the other material evidence in the case.”
[79](1989) 94 FLR 339 at p 353; 92 ALR 299.
The fact that a busy trial court is involved does not mean the requirement to give adequate reasons can be dispensed with.[80]
[80]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at pp 260- 261.
Adequate reasons must be given so that the losing party is not left with a justifiable sense of grievance through not knowing why they lost; a right of appeal is not frustrated; the giving of reasons is an attribute of the judicial process; procedural fairness is accorded and it furthers judicial accountability.[81]
[81]Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] QCA [2009] 2 Qd R 29 at [57]-[58].
Having considered all of the material it is my respectful opinion that the Magistrate did fail to give sufficient reasons as to why he accepted the evidence of Mr Lewis and to why he declined to accept the evidence of the appellant.
The appellant in his submissions to the Magistrate raised a number of clear points regarding the credibility of Mr Lewis and the Magistrate did not deal with these points in his findings. The most the Magistrate said was they were peripheral. The fact is the Magistrate, even if briefly, should have dealt with the main points raised by the appellant’s counsel in submissions.
I also did not think it sufficient for the Magistrate to have asked whether any further reasons were needed. The fact is the appellant would have needed to repeat all of his submissions again after the decision was already delivered and the Magistrate would have had to reconstruct a decision which had already been made.
As to the submission that the reasons were over 15 pages, much of that was summarising the evidence tendered to the court, but the key factual findings were in only a few lines on page 15.
Although the Magistrate accepted the police evidence as credible and reliable, despite Officer Perkins giving evidence more consistent with the appellant’s case than the respondent’s case. This was a contradictory finding in my view.
Also the Magistrate did not explain what weight he placed on the evidence of the aggrieved. Indeed he did not refer to this evidence in his ultimate findings at page 15.
The problem appears to me to be that the Magistrate did not summarise the submissions made by each party during the decision so that the points could be dealt with. Ordinarily it is necessary for a Trial Judge to summarise the crucial arguments of the parties, to formulate issues for decision and to explain how the competing arguments of the parties are dealt with.[82]
[82]AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85]; DL v R [2018] HCA 26; 266 CLR 1 at [32-33].
I now turn specifically to the matters which raised concerns in this case.
The central factual issue was whether the appellant assaulted the aggrieved. To be satisfied that this act occurred required the court to be satisfied on the balance of probabilities that Lewis’ evidence was credible and reliable.
Mr Lewis was affected by alcohol and was extremely belligerent with the police. This was an unusual fact bearing in mind on his account he had just found a man who’d fallen down the stairs and was severely injured. Why would he be belligerent at that point in time?
It may be argued to be improbable that he had a “funny feeling” such that he went back around to the appellant’s house. The inference is available that there was an argument about advances Mr Lewis had made towards the aggrieved and in those circumstances Mr Lewis was angry towards the appellant and it is arguable that he went around to the house to confront the appellant. It is arguable that the appellant did not fall down the stairs. There was a smashed rear door and there was blood all over the house. It is open to find there was a sustained altercation between Mr Lewis and the appellant, the full details of which were not disclosed by Lewis. It also relevant that the police saw blood on Mr Lewis’ clothing. It may be argued it is more likely that the appellant sustained the head injury as a result of this altercation.
It also might be argued that it is improbable that the aggrieved would simply blurt out of the blue that she’d been bashed once a week by the appellant. Indeed, that was not consistent with what Mr Lewis told the police initially on the night in question.
Also, Mr Lewis did not seem coherent in his answers to the police given on the night in question. It may be argued his concern for the appellant and apologies to the appellant to be more consistent with a man who had assaulted the appellant and caused him injury.
There were significant inconsistencies between his version on the night and his evidence.
(a)At no stage during his interaction with police prior to his being unarrested did he allege that the aggrieved told him that she was bashed once a week.
(b)In the recording he clearly knew he was on bail and had a reporting condition. He denied this in his evidence.
(c)He denied being placed under arrest for assault in his evidence yet this was clear from the recording. He claimed he was concerned about being charged with any assault but this again is inconsistent with what he said in the recording.
(d)He gave inconsistent evidence about where he found the appellant when he went back to the house. He initially said he found the appellant where he was lying but in his evidence he said he found him over the back fence.
(e)Crucially he failed to tell the police in the recording that he had assaulted the appellant.
I also considered at times he gave nonresponsive answers in his evidence.
Over and beyond this, it may be argued his evidence was inconsistent with other evidence.
First, as against his evidence, there was the evidence of the aggrieved in the recording. She gave evidence consistent with what the appellant said, namely that she’d fallen down the stairs and there was no domestic violence. Her evidence was not consistent with Mr Lewis’ evidence.
Second, there are the observations of police at the scene. The sliding glass door had an impact crack. There were extensive traces of blood through the house - inconsistent with the appellant falling down the stairs and remaining there. And of course there was the blood on Mr Lewis’ clothing.
Third, are the injuries to the aggrieved. There was no evidence of skin hanging off the aggrieved as alleged by Mr Lewis nor is there any evidence of hair being pulled. Indeed the evidence of Officer Perkins is contrary to this. The minor injury to the arm appears to be more consistent with the aggrieved falling down the stairs. As Officer Perkins said there was no evidence of any hand or finger marks on the aggrieved. There is no evidence there was any bruising to the neck. I considered Officer Perkins evidence to be particularly important and inconsistent with the evidence given by Lewis.
Four, there was reason for Mr Lewis to lie namely his responsibility for the assault on the appellant.
In all of the above circumstances it may be argued it is more likely that the significant injury to the appellant occurred during the altercation with Mr Lewis, as was the police original view. It is understandable he was unarrested because there was no direct evidence to contradict that which Mr Lewis claimed at that point in time. At that point he had not told the police he punched the appellant.
The matters I have so far discussed to my mind are not simply peripheral but are substantial.
I also think it important that the aggrieved was not called, medical records were not tendered, Mr Ryan was not called and the 000 evidence was not tendered.
It was not for the appellant to prove his case; the onus was on the respondent.
The aggrieved could have been called to give evidence. I infer that the respondent knew that her evidence would not assist the respondent’s case.
It would have been very useful for the court to have the medical records of the aggrieved. I infer on the evidence the respondent knew the records would not have assisted her case against the appellant in light of the other evidence.
It was also strange that Mr Ryan was not called. He allegedly was present when the aggrieved alleged she had been beaten by the appellant once a week. He was at the scene.
In those circumstances in a case where credibility was crucial, the principles in Jones v Dunkel[83] did apply and the Magistrate ought to have taken these issues into account as against the applicant on the hearing of the application. In other words the court can more confidently draw inferences in favour of the appellant because relevant evidence was not called by the respondent, or at the least the evidence would not have assisted the respondent.
[83][1959] HCA 8; (1959) 101 CLR 298 at p 308.
Even though section 145 (1) of the DVA provides that the court is not bound by the rules of evidence, a court hearing a DV matter should as close as possible observe the rules such as the rule in Jones v Dunkel.[84]
[84]R v War Pensions Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256; Rodriguez v Telstra [2002] FCA 30; 66 ALD 579 at [25]; A v Director of Family Services (1996) 132 FLR 172 at p 177; 20 Fam LR 549.
Turning to the appellant’s case in my opinion his evidence could not be dismissed out of hand. His evidence was materially supported by the objective evidence to which I have referred above and also by the account given by the aggrieved.
As to the respondent’s submission that section 145 of the DVA did not require the aggrieved’s evidence, that is true, but in this case she gave evidence which is inconsistent with the account of Mr Lewis and consistent with the account of the appellant. Also section 145 clearly rendered the aggrieved’s evidence admissible.
I agree with the respondent that in some domestic violence cases an aggrieved person (for a number of reasons) may not wish to make an allegation against their partner. But in this case the objective factors to which I have already referred support her statement that no domestic violence had occurred.
It is also true that Mr Lewis gave evidence he punched the appellant but it is most likely he would have expected that fact to have emerged in the evidence.
As to the reliance on the conversation between the appellant and Lewis referred to at [73] of the respondent’s submissions I don’t think that advances the matter. It was common ground that the aggrieved was taken to hospital and by that time Lewis was alleging the appellant had assaulted the aggrieved.
The difficulty I have is that I have not had the opportunity to hear and see the witnesses. Findings of credibility and reliability are necessary in this matter.
In the circumstances I find that an error of law occurred in this matter and I have decided to remit the matter to the Magistrates Court for rehearing.
Bearing in mind the matters I have raised, the respondent should no doubt give consideration to whether the matter proceeds further or not.
Conclusion
I make the following orders:
1.The appeal is allowed.
2.The decision of the Caboolture Magistrates Court dated 13 September 2021 is set aside and the matter is remitted for retrial before the Caboolture Magistrates Court before a different Magistrate.
3.I will hear the parties in the question of costs.