Donaldson v GRAY-HEREWINI - [2012] WADC 143

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DONALDSON -v- GRAY-HEREWINI [2012] WADC 143

CORAM: BOWDEN DCJ

HEARD: 8 OCTOBER 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: APP 40 of 2012

BETWEEN: BO-JOSHUA DONALDSON
Appellant
AND
SHALENA JOYCE GRAY-HEREWINI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE MUSK
File No  :PE 37 of 2012

Catchwords:

Violence restraining order - Appeal - Unrepresented litigant's failure to crossexamine - Browne v Dunn - Magistrate's advice to unrepresented litigant - Use of examples - Apprehended bias - Appeal dismissed

Legislation:

Magistrates Court Act 2004
Restraining Orders Act 1997

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr A Martin
Respondent: Mr M Holgate

Solicitors:

Appellant: Lumlan & Associates
Respondent: Holgate Legal

Case(s) referred to in judgment(s):

Bennett v Carruthers [2010] WASC 5
Browne v Dunn (1893) 6 R 67
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael v The State of Western Australia [2007] WASCA 100
R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478
Sarec-Barclay v W & M Highlands Pty Ltd (1989) 6 SR (WA) 99
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

BOWDEN DCJ: This is an appeal from the decision of her Honour Magistrate Musk made on 18 June 2012 granting a final violence restraining order against the appellant.
On 4 January 2012 the respondent and her mother obtained interim violence restraining orders against the appellant. The appellant lodged an objection to those orders and a hearing date was set for 20 March 2012. On that date he failed to appear and the final orders were made.
On 26 March 2012, pursuant to s 43A of the Restraining Orders Act 1997, the appellant applied to set the final orders aside on the basis that he was unable to attend court on 20 March 2012 for medical reasons. The 12th of April 2012 was set to determine the respondent's attitude to the application.
Exactly what transpired on 12 April 2012 is not readily apparent from the court file. Although it is clear the respondent and her mother opposed the application, it is not clear whether leave was given as required under s 43A and the final order were set aside with interim orders then granted until the hearing date of 18 June 2012 or whether leave was granted for the appellant to proceed and the matter adjourned to 18 June 2012.
In any event, on 18 June 2012 all parties treated the matter as if it was the respondent's and her mother's applications for violence restraining orders that were to be determined and at the conclusion of the hearing her Honour granted a final restraining order against the appellant in favour of the respondent. The respondent's mother's application was dismissed.

The appellant's grounds of appeal

The appellant filed six grounds of appeal; however at the hearing on 8 September 2012 he abandoned grounds 1, 2, 3 and 5 and proceeded on grounds 4 and 6.
Ground 4 states:
The learned magistrate did not expressly acknowledge in reaching her decision that the respondent did not cross‑examine the appellant on his evidence even though during the trial the respondent was warned by the learned magistrate that if she failed to cross‑examine the appellant the respondent would be deemed to have accepted the appellant's evidence.
Ground 6 states:
There was an apprehension of biasness(sic) during the trial where the learned magistrate appeared to suggest to the respondent from the bench in respect to questions that could be put to the appellant in cross‑examination.

The appellant's submissions

The appellant says her Honour went too far in assisting the unrepresented respondent and by the provision of examples of specific questions to put in cross‑examination went so far as to demonstrate reasonable apprehension of bias and therefore the appeal should be allowed.

The respondent's contentions

The respondent contended that the magistrate did no more than comply with s 30 of the Magistrates Court Act 2004.
The section states as follows:
30.Courts duties in respect of self-represented parties
In a case where a party is self-represented, the court must inform the party of –
(a)the need, when cross‑examining a witness called by another party, to ask the witness about any evidence of which the witness or the other party has not previously had notice that the self‑represented party –
(i)intends to adduce; and
(ii)intends to allege or contradict the witnesses; and
(b)the consequences of not doing so.

The advice given by her Honour

The remarks complained of, and advice given by her Honour are as follows (ts 26 – 27):
HER HONOUR: Do you wish to cross‑examine him about your application - - -
GRAY-HEREWINI, MS: No, thank you.
HER HONOUR: - - - or do you accept everything he says? If you do not cross‑examine him about your evidence, which is the basis for your application, then you are basically accepting his evidence, they are the rules. Once a matter is defended then there are certain rules that apply. Your evidence was that he has called you hundreds of times per day and threatens to kill you, now that is the basis on which you got the interim order in January. These hundreds of times a day phone calls usually happened between 2 pm and 6 am the next day.
GRAY-HEREWINI, MS: Everything I've said is true, your Honour, and I can't obtain the phone records myself. The police have the copies of the phone records and they see how many times he's called, they've got his outgoing phone records and he's going to be charged for that when it all goes to court.
HER HONOUR: What do you mean he is going to be charged for that?
GRAY-HEREWINI, MS: Well - - -
HER HONOUR: Charged for, what, breaches or just making - - -
GRAY-HEREWINI, MS: Well, they've got his outgoing phone records and they see how many times he's called my mobile and breached the orders, and I guess that's the upcoming - - -
HER HONOUR: I am reading out your evidence in relation to the basis on which you got the interim order in January.
GRAY-HEREWINI, MS: Yes.
HER HONOUR: The breaches, he has been convicted of five breaches. If you do not agree with his explanation for the breaches, you have heard what he said and then you put to him what you say were really the breaches. Like, he said they were text messages to Amelia, if you do not agree with that you say, 'That is not true, what those messages really were where you were saying, "I am going to come around and kill you or cut your throat",' or something. I do not know what it is because I was not there, I did not get the messages? – Are you representing them?
COUNSEL: Your Honour, I'm going to have to object to your Honour's direction on that - - -? – You might as well be their lawyer.
- - - and the reason for that, your Honour, is Ms Shalena Gray‑Herewini has been through these proceedings, she had representation last time when she went through these proceedings, she's fully aware as to - - -
HER HONOUR: That is an example - - -
COUNSEL: She's been advised - - -
HER HONOUR: - - - that is not the truth, what I am saying is an example of how to cross‑examine? – Yes, how many samples do they need, your Honour? I'm sure they're fully aware of what you've been explaining to them, I've heard it several times myself.
COUNSEL: Sorry, Mr Donaldson - - -? – I pay money to have you standing there and representing me and they're getting advice from a judge. You know, when was the - - -
HER HONOUR: When you went to the final order hearings last July, were you represented by a lawyer?
GRAY-HEREWINI, MS: No, I had a Legal Aid lawyer but I just came back from New Zealand - - -
HER HONOUR: Whether you did or whether you did not, I guess you went through those proceedings, it was a hearing so you have got an idea about how they work. Do you have any questions to ask him? It is just a question of fact in a sense, if he said something you do not believe you put to him, 'Is it not the case that A happened or B happened or C happened?'
GRAY-HEREWINI, MS: I agree the text messages that he got a breach for was - - -
HER HONOUR: You either ask him questions or you do not, do not just make a statement.
GRAY-HEREWINI, MS: No, thanks.
COUNSEL: She stated for the record, your Honour - - -
HER HONOUR: Yes?
COUNSEL: She's stated for the record she's not going to ask him, she said, 'No, thanks'.
HER HONOUR: I just want to give her every opportunity to cross‑examine him - - ? – They've agreed the messages.
- - - if she wants to? – Did you hear she agreed on the messages she just said?
COUNSEL: She's been advised before, that's all I have to say for the record, your Honour.
GRAY, MS: Your Honour, the reason we don't have a legal representative is Shalena's a single mum who gets no financial assistance.
HER HONOUR: I accept that you do not have it, it is not a question of having it or not having it, but it is perfectly simple, if he says something you disagreed with you just put to him what you think happened, that is all.
GRAY, MS: We do disagree, there's - - -? ‑ The truth has been said.
At the time her Honour gave that advice to the respondent she had already given evidence. The appellant therefore was 'on notice' as to the matters alleged against him. The respondent did not cross‑examine the appellant.

Ground 4: Failure to acknowledge that appellant was not cross‑examined

Although not specifically argued, ground 4 was not abandoned.
It is correct to say her Honour did not expressly acknowledge in reaching her decision that the respondent did not cross‑examine the appellant on his evidence, even though during the trial the respondent was warned that if she failed to cross‑examine the appellant the respondent would be deemed to have accepted the appellant's evidence.
A magistrate does have a duty to explain her decision, however there is no duty to write an exhaustive treatise on every aspect of the trial. The reasons do not need to be lengthy or elaborate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259, 269 – 270, and 280.
The learned magistrate was not required to expressly acknowledge the matter complained about. All that is required is to give an adequate explanation of why it was that she reached the conclusion that she did: Bennett v Carruthers [2010] WASC 5.
The fact her Honour failed in her reasons to mention that the respondent did not cross‑examine the appellant is irrelevant. There is no requirement in law for a magistrate to acknowledge in her reasons that a witness has been cross‑examined or re‑examined. The magistrate is required to assess the evidence in the circumstances in which it is given and that assessment was carried out. Those grounds specifically relating to the quality of her Honour's assessment of the evidence (grounds 1, 2 and 5), the adequacy of the reasons for her assessment (ground 3) and the capacity of that evidence to support her Honour's conclusion (grounds 1, 2 and 5) were specifically abandoned at the appeal.
There is no merit in ground 4 and it must be dismissed.
If the ground of appeal is actually meant to convey that the respondent is 'deemed' to have accepted the appellant's evidence because she did not cross‑examine on it, then it is based on an incorrect proposition at law.
The rule in Browne v Dunn ((1893) 6 R 67) applies in these civil proceedings. It is a rule of professional practice and not a rule of law.
In R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385 it was stated:
… The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself ...
The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both of the practical requirements of the rule in a given case and to the consequences which may properly flow from its non‑observance, including the remedies that are available to deal with the problems so created.
In Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478 [21] the court said:
The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged … The rule rests upon the notion of fairness and is designed to give the witness an opportunity to meet the challenge. The rule facilitates a tribunal's assessment of the reliability and accuracy of the witness. Consequentially if matters in controversy are not 'put' to the witness in cross-examination the tribunals capacity to asses the merit of the allegation subsequently too be made and the credit of the witness is likely to be impeded.
In Browne v Dunn Lord Herschell LC, after commenting on the fact that if you intend to impeach a witness you are bound whilst that witness is in the box to put him on notice that you are going to contradict him and give him an opportunity to explain his version of the events, stated:
… Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakenly given and the point upon which he is impeached and is to be impeached is so manifest that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there being no suggestion whatever in the course of the case that his story is not accepted. (pp 70 ‑ 71)
In this case all the evidence that the respondent wished to use to contradict the appellant had been called. The respondent and her mother had both given evidence. The appellant had been put 'on notice', he knew the case confronting him and the evidence challenging him and the evidence he gave was designed to meet those challenges.
The consequences which flow from a breach of the 'rule' in Browne v Dunn by the failure to cross‑examine does not mean that the respondent was thereby accepting the appellant's evidence. The fact that the evidence was not cross‑examined may have made her Honour's task in evaluating the evidence more difficult and is a factor her Honour could take into account in considering the weight to be given to that evidence and indeed the weight to be given to the evidence of the respondent, however her Honour was still required to assess the evidence.
It would have been an error for her Honour to have concluded that the respondent was basically accepting the appellant's evidence by her failure to cross‑examine.
However her Honour did not fall into that error, she assessed the evidence and, as I have said, the appeal against the quality of her Honour's assessment of the evidence (grounds 1, 2 and 5), the adequacy of the reasons given for her assessment (ground 3) and the capacity of that evidence to support her Honour's conclusion (grounds 1 and 5) has been abandoned.
This ground must be dismissed.
In any event this was a case where notice had been so distinctly and unmistakably given (by the evidence of the respondent) as to the areas which the appellant was to be impeached, that is, the number and the content of the calls, and it was so manifest that it was obvious to all that the parties' positions were polarised. I would have thought that cross‑examination by an unrepresented respondent was in reality unlikely to take the matter any further, particularly in light of the gratuitous remarks being made by the appellant (ts 26, 27) and the statements being made from the bar table by the respondent's mother (ts 27, 28). What was required was an assessment of the evidence and for a decision to be made, which her Honour proceeded to do.

Ground 6: Bias

It is well established that the test to be applied in determining whether a judicial officer is disqualified by reason of bias is whether in all the circumstances a fair‑minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Michael v The State of Western Australia [2007] WASCA 100 [56] – [62].
Michael [56] – [62] refers to this principle as giving effect to the requirement that 'justice should not only be done but should manifestly undoubtedly be seen to be done' and reflects the fundamental principle that judicial officers should be both independent and impartial.
The test is as to the possibility rather than the probability of bias.
The test is an objective one, the observer is a hypothetical fair‑minded or reasonable and informed lay observer who bases their opinion on a fair assessment of the judicial officer's conduct in the context of the whole of the trial.
The judicial officer under observation is a 'professional … whose training, tradition and oath or affirmation require her to discard the irrelevant, the immaterial and the prejudicial'.
The reasonableness of the apprehension of bias should be considered in the context of ordinary judicial practice.
The apprehension of bias principle is a two‑step process. First, it requires identification of what is said which might lead a judicial officer to decide a case other than on its legal and factual merits. The second step must be to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [8].
It must also be borne in mind the distinction between a contention of apparent bias and one of unfairness of the trial. It is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair: RPS v The Queen [11], Michael [56] ‑ [62].
When one party is unrepresented it imposes additional duties upon the judicial officer to ensure both that the unrepresented person's case is fairly put and that the represented person suffers no disadvantage as a result of the unrepresented party's lack of understanding of court procedure. Whilst it is expected that civil litigants acquaint themselves with essential rules of procedure, magistrates traditionally take care to explain what is required in the presentation of an unrepresented litigant's case: Sarec-Barclay v W & M Highlands Pty Ltd (1989) 6 SR (WA) 99.
Clearly the learned magistrate had both the decision of Browne v Dunn and s 30 of the Magistrates Court Act 2004 in her mind. The whole context of her remarks was to advise the respondent to put her allegations to the appellant and thereby give him the opportunity to refute them and provide the court with an opportunity to assess the credibility of the parties.
Particular complaint is made about the use by her Honour of the example:
Like, he said they were text messages to Amelia, if you do not agree with that you say, 'That is not true, what those messages really were where you were saying, "I am going to come around and kill you or cut your throat",' or something. I do not know what it is because I was not there, I did not get the messages?
However, those remarks need to be seen in context.
The respondent had given evidence that the appellant had threatened to kill her, and take their daughter (ts 6, 9) and had denied when cross‑examined that the phone calls were not 'violent in nature' (ts 8, 10).
The respondent's mother gave evidence, that she had heard the appellant screaming over the phone (ts 13) and threaten to kill the respondent (ts 11), 'cut up' [her] family and cut their heads off (ts 14).
The appellant's evidence was none of the phone calls contained threats of violence or were of a violent nature (ts 17, 19).

In my opinion a fair‑minded lay observer with knowledge of the facts and aware that the respondents were unrepresented and with knowledge of the legal requirements of the rule of Browne v Dunn could not on any fair interpretation of the passages complained of and/or by examining the judicial officer's conduct in the context of the whole of the trial reach a conclusion of apprehended bias.
Such an observer would in my opinion have interpreted the remarks as nothing more than an effort by her Honour to ensure the respondent knew that if she cross‑examined the appellant she should put to him exactly what she says he either said or sent by text.
The words her Honour used in her example being a threat to kill and cut throats were matters that the respondent and her mother had, in effect, sworn had been said. Whilst I accept that the mother's sworn evidence was that the appellant had used the words 'cut our heads off' rather than 'cut our throats', I do not think that a fair‑minded observer would treat the advice given as anything other than her Honour encouraging the respondent, should she choose to cross‑examine, to put precisely what she claimed was said or texted to her by the appellant.
The magistrate did no more than comply with her obligations to an unrepresented litigant, s 30 of the Magistrates Court Act 2004 and the rule in Browne v Dunn.
Further, the magistrate did not deviation from the course of deciding the case on its merits and there is no logical connection, perceived or otherwise between the advice given by the magistrate and the decision ultimately reached.
The remarks made by her Honour cannot lead to a conclusion of apparent bias.
I dismiss the appeal and order the appellant to pay the respondent's costs to be taxed if not agreed.