Dufficy v Berry

[2006] QDC 252

[2006] QDC 252

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 503 of 2006

THELMA MAY DUFFICY	Appellant
and
VALERIE ESMAE BERRY	Respondent

BRISBANE

..DATE 05/06/2006

ORDER

CATCHWORDS: Appeal under s.222 of the Justices Act 1886 against Magistrate's dismissal of the complaint under the Peace and Good Behaviour Act 1982 - Magistrate did not resolve conflict between complainant's evidence of a threat of assault and the defendant's assertion of alibi - appeal allowed in all the circumstances - matter remitted to Magistrates Court with a direction that "fresh" or additional evidence from both sides bearing on the asserted alibi would be received.

HIS HONOUR: This is an appeal under section 222 of the

Justices Act 1886 by Thelma May Dufficy against the dismissal

by a Magistrate on 24 January this year following a hearing

that day of a proceeding under the Peace and Good Behaviour

Act 1982 ("the Act").

On 6 October 2005 the appellant swore the following complaint:

"The complainant and the defendant live in a Queensland
     Housing Commission cluster of units in Mansfield.  On
     4 October 2005 the defendant's daughter Lauren rattled
     the wooden gate near the complainant's unit at about 8.30
     to 9 p.m. and created considerable noise as dogs started
     barking.  The complainant got up from her bed to
     investigate the noise and was hosed by the defendant who
     was standing nearby with the garden hose.

On 6 October 2005 at about 8 a.m. the defendant
     approached the complainant near her car and said, 'You
     want to be careful or you might wake up with a knife in
     your gut.'  The complainant is now in fear of her."

The making of that complaint followed the appellant's visit to

police for the third time in as many days in relation to the

respondent, Valerie Esmae Berry.  On 4 October, this was in

relation to the hosing.  The next occasion was in relation to

the installation of some kind of security lighting by Ms Berry

which the appellant considered created a light nuisance for

her. 

At the hearing before the Magistrate the appellant was represented by Dr Jensen, then practising as a solicitor, which has some significance as will appear.  Ms Berry was self-represented.  If she had any idea of the right procedure to follow in the Court she gave a very good impression of not understanding the procedure.  This placed the Magistrate in the awkward but unfortunately increasingly familiar position of having to attempt to do justice according to law with one side "very ably represented", to quote the Magistrate, and the other side bereft of legal or other assistance.

In what was undoubtedly intended as general guidance to

Ms Berry the Magistrate at page 17 of the transcript referred

to the possibility of an alibi defence:

"You'll need to say to her your version...you weren't
     there, that you were in Hawaii having holidays at the
     time.  I don't know what your case is, but you will need
     to make sure you put it to her.  Do you understand?"

Sure enough, not in relation to the hosing incident but in

relation to the spoken threat, there was an alibi suggested in

the form of Ms Berry being out shopping at 8 a.m. on 6 October

last year.  There was no complaint and nor could there have

been, in my opinion, regarding the Magistrate's contribution

just quoted, but there was complaint regarding her repeated

encouraging of a resolution of the matter whereby cross-orders

might be made.

During the cross-examination of the appellant by Ms Berry the

Magistrate at page 23 made the comment:

"Well, see, think about it this way.  I mean, if you
     don't want to cause her any more stress, you can put a
     without admission consent order in place, if you really
     don't want to cause her any more stress.",

to which Ms Berry, according to the transcript, said:

"I don't."

A few lines further down the page the Magistrate said:

"It seems to me that there may be the basis for a
     cross-order.",

having previously suggested to the respondent that:

"You should apply for a cross-order potentially if what
     you say has happened really has happened."

The Magistrate returned to that theme later on.

Mr Winn, representing Ms Berry today, does not contend that

the Magistrate's proposal for cross-orders (by consent or

otherwise) had some legal justification he can point to.  In

my opinion it's clear that the Magistrate was attempting to

arrive at a resolution of the unpleasantness that had arisen

where these two women live on a basis that would not see one

emerging a victor, the other crushed and humiliated.  I would

regard the Magistrate's approach as a commendable one pursued

in the hope of putting an end to the unpleasantness of

litigation.

Ms Berry was not interested in taking up the Magistrate's

proposal and Dr Jensen on behalf of his client opposed it.  He

is probably correct that a perusal of the rather confusing

transcript may not reveal a basis for an application by

Ms Berry, but as things developed she hardly had the

opportunity, if there was a case she could have made in

support of a putative application of her own, to present it.

She had asked this question in cross-examination of the

appellant at page 25:

"And did you then run off screaming, `I'll get even with
     you Val Berry.'"?

The Act has been the subject of consideration in the Court of

Appeal in Laidlaw v. Hulett [1998] 2 QdR 45. That

established, contrary to the Stipendiary Magistrate's apparent

view, that the standard of proof was not the ordinary civil

standard but the special "Briginshaw" civil standard which has

regard to the seriousness of the allegations to be

established.  The Magistrate here appears to have clearly had

in mind the ordinary civil standard of proof on the balance

of probabilities and in that regard, as Mr Winn says, appears

to have favoured the appellant rather than disadvantaged her.

At the trial, given the common situation of a court facing

conflicting accounts of protagonists, both without

corroboration, Dr Jensen had suggested to the Magistrate as a way of resolving the conflict that Ms Berry's evidence regarding her alibi was unsatisfactory, involving vacillation as to whether at 8 a.m., or thereabouts, on 6 October last year she was at the shops or still at home preparatory to leaving for the shops.  That seems to me a legitimate forensic approach.  Her Honour's response was:

"I am not satisfied that a lot turns on Ms Berry's
     evidence about alibi/being at the shops, but she
     certainly says she was there.  I do not specifically find
     against Ms Dufficy with respect to this point.  I simply
     say that I have one person saying A and another person
     saying B and I have to be satisfied on the balance of
     probability that it occurred and I am not satisfied in
     the present circumstances that Ms Dufficy has discharged
     the onus.  I am not finding against her, I am simply
     saying that I am not able to make a finding with respect
     to that allegation.

So that they are the two allegations that are the basis
     upon which the peace and good behaviour application is
     brought and, for the reasons that I have set out, I do
     not find the complaint is made out and I dismiss the
     complaint for the reasons that I have put on record."

It is an unsatisfactory situation, and I think relatively

rare, but certainly not unprecedented, that a judicial officer

is unable to resolve conflict of the kind encountered here.

It is the responsibility of judicial officers to do just that,

difficult as it will very often be.

While Mr Winn focused on section 6(3) of the Act:  "Upon a

consideration of the evidence the Court may (a) dismiss the

complaint or (b) make an order that the defendant should keep

the peace and be of good behaviour for such time specified in

the order as the Court deems fit", emphasising the discretion

which the Court has, Dr Jensen focused more on subsection (1):

"The Magistrates Court before which the defendant appears in

obedience to the summons or is brought pursuant to the

warrant, as the case may be, shall hear and determine the
matter of the complaint."  His submission is that the

Magistrate did not do that and ought to have done so.  It is

not simply "the complaint" which must be determined, but "the

matter of it".

Many would think the outcome surprising in that one would have

expected that Ms Dufficy's evidence would in terms be accepted

or rejected.  It might be rejected because the appellant was

thought to have been confused or for some relatively

innocent reason or - what one might think more likely (and

inevitable if Ms Berry were believed) - because it was a

wicked lie formulated and pursued vigorously and consistently. 

The Magistrate made no comments about Ms Berry's evidence

except to note its existence.  It is somewhat odd to find the

complaint dismissed in circumstances where the Magistrate had

clearly been considering an outcome which would have included

a cross-order, one of the kind which the appellant sought

against Ms Berry.  What the Magistrate's duty was under

section 6(1) was to "hear and determine the matter of the

complaint".

I am troubled by the outcome here and seriously troubled.   

The Magistrate was plainly concerned for Ms Berry as an

unrepresented litigant.  No judicial officer relishes handing

down a decision that appears to prefer the party with the

advantage of able representation over a self-represented

opposition apparently lacking any real idea of how best to

present her case.  She was plainly conscious of the

disadvantages of inviting disharmony in the community and an

outcome involving only an order against Ms Berry, apparently

feeling that not all of the wrongs may have been attributable

to one side.

She would have found the evidence difficult to assimilate. 

The transcript shows she had a good deal of trouble getting

the hearing to proceed according to the rules as she thought

them to be.

She became sufficiently confused at page 38 of the transcript

to interrupt Dr Jensen in the course of his cross-examination

of Ms Berry in saying to him, "This is re-examination.  It's

got to arise out of cross-examination.  It's not just a chance

to rerun your whole evidence-in-chief," whereupon Dr Jensen

reminded the Magistrate that it was indeed cross-examination

that was going on.

In some way then I think the Magistrate failed to exercise the

judicial function under section 6(1) of the Act. 

If it matters, in respect of the requirements of section 4,

Dr Jensen has abandoned anything to do with the hose incident,

which the Magistrate found had occurred, but by way of

something accidental or unintended. The wording is curious. An assault is not required, rather a threat of an assault. The assumption no doubt is that if an assault in the sense of one under section 245 of the Criminal Code happens, it will be prosecuted as such rather than resort being had to the precautionary approach of the Act, the history of which is illuminated in McPherson JA's judgment in Laidlaw.

The statement I have quoted above, allegedly made on the 6th

of October 2005, is pointed to as a threat.  There are various

ways of looking at that.  As I have noted during argument,

accepting that it was taken by the appellant as a threat, it

might have been taken in other ways, for example, as a

suggestion that some other person other than Ms Berry might

be driven to harm the appellant.

Mr Winn suggests that it may not have been reasonable for the

appellant to be "in fear" for the purposes of section 4.  It

is not known what the Magistrate, who had not the benefit of

closing submissions of any value from Ms Berry, would have

made of that particular issue.

The question arose whether further evidence should be admitted

on the appeal against the possibility that the court would not

do as Dr Jensen asked and substitute its own finding opposite

to that of the Magistrate in respect of the alleged threat of

the 6th of October 2005.

No instance was cited to the court of an appeal court

resolving a conflict of evidence in this way where the

Briginshaw onus of proof applied.  I am certainly not prepared

to take that radical step today.  The matter requires further

consideration and, in my opinion, on the basis of the fresh

evidence the appellant wants to adduce, which is to the effect

that at the time when Ms Berry says was the sole occasion

when the paths of the two women crossed on that day shortly

before 10 a.m. or thereabouts, she was engaged in a

consultation with her solicitors, specifically with Dr Jensen.

It seems there is evidence available to that effect.  If there

is to be further evidence, and I think in the circumstances

that it ought to be admitted, consistently with the rules

about fresh evidence, then there is going to be further

evidence from Ms Berry's side, too.

There may be more than this, but Mr Winn has foreshadowed that

at the least she would want to get into evidence a receipt or

certain receipts which may serve to establish her whereabouts

at the crucial time.  Reference was made to the possession of

those before the Magistrate, but Ms Berry did not seek to

tender them.

A possibility is that this court would receive that further

evidence, which could not happen today.  It seems to me that

although it may cancel itself out, as Mr Winn suggests, it

may, by the same token, provide a basis on which the

Magistrates Court, and perhaps the same Magistrate, although

this court is neutral about that - might resolve the conflict

which ought to have been resolved about whether the statement

which the appellant attributes to Ms Berry on the 6th of

October was made by her on the balance of probabilities (with

the bolstering feature flowing from Briginshaw's case and

like authorities).  This ought to happen in the Magistrates

Court, in my view.

The appeal will be allowed and the matter remitted to the

Magistrates Court under section 225(2) of the Justices Act so

that that court may proceed to determine the matter and

perhaps any cross-application pursuant to section 6 of the

Act.

The additional evidence which is being foreshadowed by the

parties' representatives today ought to be received and I say

that without intending to limit any further evidence that may

be received.  It was stated by Mr Winn that it seems nothing

untoward has occurred since the 6th of October last year.  If

it had, no doubt the court would have heard about it.

One consequence of the matter being remitted to the

Magistrates Court may well be to provide some assurance if

there is any risk of anything untoward happening, that nothing

untoward does eventuate in the interim.

...

Having heard submissions from Dr Jensen and Mr Winn, the court

notes the desirability that if possible another Magistrate

hear the matter.

...

The costs of the first Magistrates Court hearing should be

reserved for the Magistrate who undertakes the second hearing.

The respondent is ordered to pay the appellant's costs of the

appeal, but is to have an indemnity certificate under the

Appeal Costs Fund Act.

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