DWB v Protheroe

Case [2022] QDC 113

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, cited

COUNSEL:

Mr A Rana for the appellant
Mr M Lyell for the respondent

SOLICITORS:

GTC Lawyers for the appellant
Queensland Police Service Legal Unit for the respondent

Introduction

  1. 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.

  2. 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.

  3. 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

  4. The notice of appeal alleges the appeal is on the following grounds:

    (a)The Magistrate erred in finding the appellant had committed an act…

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AGLC
DWB v Protheroe [2022] QDC 113
Case
[2022] QDC 113
Decision Date

CaseChat Overview and Summary

In the case of DWB v Protheroe, the appellant sought to appeal a decision of the Caboolture Magistrates Court, which had granted a domestic violence protection order to the aggrieved. The appeal centred on the Magistrate's acceptance of Mr Lewis's evidence and the reasons provided for the decision, as well as the adequacy of the reasons given for not accepting the appellant's evidence. The appellant contended that the Magistrate erred in finding domestic violence had occurred and in accepting Mr Lewis's evidence without providing sufficient reasons. The court was required to determine whether the Magistrate's decision was supported by sufficient reasons and whether there were any errors in the acceptance or rejection of evidence.

The court found that the Magistrate's reasons for accepting Mr Lewis's evidence were insufficient, as the Magistrate did not provide any reasons for finding Mr Lewis's evidence credible despite inconsistencies. The court also found that the Magistrate erred in not providing any reasons for rejecting the appellant's evidence. The court noted that the Magistrate had the opportunity to observe the witnesses and listen to their evidence but failed to provide reasons for accepting one witness's evidence over the other. The court held that the Magistrate's decision was flawed due to the lack of reasons provided for the acceptance or rejection of evidence, and the matter should be remitted for retrial before a different Magistrate. The court also noted that the Magistrate had failed to draw any Jones v Dunkel inferences regarding the respondent's failure to obtain an affidavit from the aggrieved or to call Michael Ryan or lead medical evidence.

The appeal was allowed, and the order made by the Caboolture Magistrates Court was set aside. The matter was remitted for retrial in the Caboolture Magistrates Court to be tried by a different Magistrate. The court reserved the question of costs for a later date.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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