CD v Queensland Police Prosecutions - [2024] QDC 150

DISTRICT COURT OF QUEENSLAND

CITATION:

CD v Queensland Police Prosecutions [2024] QDC 150

PARTIES:

CD

(appellant)

v

QUEENSLAND POLICE PROSECUTIONS

(respondent)

FILE NO:

BD2520/24

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

18 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2024

JUDGE:

Smith AM DCJA

ORDER:

1.   The application for a stay is dismissed.

2.   The appeal is struck out.

3.   I will hear the parties on the question of costs.

CATCHWORDS:

FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – where the appellant applies for a stay of an order made in the Magistrates Court – where the appellant seeks to appeal a decision made in the Brisbane Magistrates Court to not permit him to cross examine the aggrieved in person – whether the District Court has jurisdiction to deal with appeals against interlocutory rulings – whether appropriate to fragment proceedings

HUMAN RIGHTS – whether the human rights provisions should be used to interpret section 164 of the Domestic Violence and Family Protection Act 2012 (Qld)

LEGISLATION:

District Court Act 1967 (Qld) s 69

Domestic Violence and Family Protection Act 2012 (Qld) ss 3, 4, 150, 151, 164
Human Rights Act 2019 (Qld) ss 4, 31, 48

Justices Act 1886 (Qld) s 222

CASES:

Coulter v Ryan [2006] QCA 567; [2007] 2 Qd R 302, considered

Frugtniet v The State of Victoria [1997] HCA 44; (1997) 71 ALJR 1598, applied
Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623, cited
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, considered
Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365, cited
McEwan v Clark [2023] QCA 120, considered
Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1, applied
Nona v R [2013] ACTCA 39; (2013) 236 A Crim R 28, cited
Obeid v R [2016] HCA 9; (2016) 90 ALJR 447, applied
Owen v Cannavan [1995] QCA 324 considered
R v Forsyth [2013] ACTSC 179; (2013) 281 FLR 62, cited
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, applied
Schneider v Curtis [1967] Qd R 300, considered
Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192, applied

Storry v Australian Financial Security Authority [2024] QCA 55, considered

COUNSEL:
Self-represented appellant

Solicitors for the respondent

SOLICITORS:
Self-represented appellant

Queensland Police Service Legal Unit for the respondent

Introduction

The appellant, CD appeals a decision made in the Brisbane Magistrates Court on 5 September 2024 wherein it was decided by the Magistrate pursuant to section 151(3) of the Domestic and Family Violence Protection Act 2012 (Qld) (“the DFVP Act”), that Ms KS, the aggrieved, could not be cross examined by the appellant in person.
The appellant submits that the decision should be stayed pending the appeal. He submits that the Magistrate erred in reaching his decision. It is not necessary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QDC 150
Decision Date: 18 September 2024

CaseChat Overview and Summary

In the case of CD v Queensland Police Prosecutions, the appellant sought to appeal a decision of the Brisbane Magistrates Court which did not permit him to cross-examine the aggrieved in person during domestic violence proceedings. The appellant applied for a stay of an order made in the Magistrates Court, seeking to challenge the decision on the grounds that it interfered with his rights under section 164 of the Domestic Violence and Family Protection Act 2012 (Qld). The legal issues before the court were whether the District Court had jurisdiction to hear appeals against interlocutory rulings and whether it was appropriate to fragment the domestic violence proceedings. Additionally, the court had to determine if the human rights provisions should be used to interpret section 164 of the Act.

The court concluded that any alleged error in the making of a section 151(3) order could be argued as a ground of appeal if the Domestic Violence order was finally made. The court held that there was no right in the appellant to appeal under section 164 of the DFVP Act, and that the appeal would fragment the domestic violence proceedings. Consequently, the court found that it had no jurisdiction to hear the appeal. The court dismissed the application for a stay and struck out the appeal, and ordered that the parties be heard on the question of costs.

The final orders of the court were to dismiss the application for a stay, strike out the appeal, and to hear the parties on the question of costs. The court found that the appeal was not justified, and that the proceedings should not be fragmented by entertaining an interlocutory appeal. The court also determined that there was no basis to interpret section 164 of the DFVP Act through the lens of human rights provisions.

Orders

Orders of the court

1. The application for a stay is dismissed.

2. The appeal is struck out.

3. I will hear the parties on the question of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Any error alleged in the making of a section 151(3) order can be argued as a ground of appeal if the Domestic Violence order is finally made. Conclusion Having considered all matters I have concluded there is no right in the appellant to appeal under s 164 of the DFVP Act and further the appeal brought would be such as to fragment the domestic violence proceedings. I am satisfied there is no jurisdiction in this Court to hear the appeal.Orders In those circumstances I make the following orders:1. The application for a stay is dismissed.2. The appeal is struck out.3. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CD v Queensland Police Prosecutions [2024] QDC 150
PARTIES:	CD (appellant) v QUEENSLAND POLICE PROSECUTIONS (respondent)
FILE NO:	BD2520/24
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	18 September 2024
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2024
JUDGE:	Smith AM DCJA
ORDER:	1. The application for a stay is dismissed. 2. The appeal is struck out. 3. I will hear the parties on the question of costs.
CATCHWORDS:	FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – where the appellant applies for a stay of an order made in the Magistrates Court – where the appellant seeks to appeal a decision made in the Brisbane Magistrates Court to not permit him to cross examine the aggrieved in person – whether the District Court has jurisdiction to deal with appeals against interlocutory rulings – whether appropriate to fragment proceedings HUMAN RIGHTS – whether the human rights provisions should be used to interpret section 164 of the Domestic Violence and Family Protection Act 2012 (Qld)
LEGISLATION:	District Court Act 1967 (Qld) s 69 Domestic Violence and Family Protection Act 2012 (Qld) ss 3, 4, 150, 151, 164 Human Rights Act 2019 (Qld) ss 4, 31, 48 Justices Act 1886 (Qld) s 222
CASES:	Coulter v Ryan [2006] QCA 567; [2007] 2 Qd R 302, considered Frugtniet v The State of Victoria [1997] HCA 44; (1997) 71 ALJR 1598, applied Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623, cited Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, considered Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365, cited McEwan v Clark [2023] QCA 120, considered Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1, applied Nona v R [2013] ACTCA 39; (2013) 236 A Crim R 28, cited Obeid v R [2016] HCA 9; (2016) 90 ALJR 447, applied Owen v Cannavan [1995] QCA 324 considered R v Forsyth [2013] ACTSC 179; (2013) 281 FLR 62, cited Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, applied Schneider v Curtis [1967] Qd R 300, considered Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192, applied Storry v Australian Financial Security Authority [2024] QCA 55, considered
COUNSEL:	Self-represented appellant Solicitors for the respondent
SOLICITORS:	Self-represented appellant Queensland Police Service Legal Unit for the respondent